Opinion
1704
October 1, 2002.
Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered August 12, 1999, convicting defendant, after a jury trial, of attempted murder in the second degree, and sentencing him, as a second violent felony offender, to a term of 10 years, unanimously affirmed.
DANIELLE L. ATTIAS, for respondent.
LAURA BURDE pro se, for defendant-appellant.
Before: Nardelli, J.P., Buckley, Ellerin, Rubin, Friedman, JJ.
Defendant's ineffective assistance claim involves matters of strategy and thus would require a CPL 440.10 motion in order to expand the record by way of an explanation for trial counsel's decisions (see People v. Love, 57 N.Y.2d 998). While it appears that defendant did submit such a motion, it further appears that the motion was unsupported by an affirmation from trial counsel and added nothing to the trial record. In any event, that motion was denied, as was leave to appeal to this Court. On the existing record, we conclude that defendant has failed to show "the absence of strategic or other legitimate explanations" for counsel's conduct (People v. Rivera, 71 N.Y.2d 705, 709), or that counsel's purported errors deprived defendant of a fair trial or affected the result (see People v. Benevento, 91 N.Y.2d 708, 713-714; People v. Hobot, 84 N.Y.2d 1021, 1024).
Defendant's contention that the court made an insufficient inquiry concerning a possibly sleeping juror is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court's inquiry, coupled with its own observations, was sufficient to establish that the juror did not miss any of the proceedings (see People v. Pulley, 290 A.D.2d 321).
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.