The People of the State of New York, Respondent, v. Kin Wong, Defendant-Appellant. (2011)

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Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 15, 2007, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 10 years, unanimously affirmed.

Defendant did not request a charge on the defense of justification, and the court was under no obligation to deliver one sua sponte.   It was clear that defense counsel was pursuing a theory that the complainant was stabbed with his own knife during a struggle over the knife, as opposed to a theory that defendant stabbed the complainant in self-defense.   Regardless of whether the evidence might have supported multiple defenses, an unrequested justification charge would have improperly interfered with defendant's strategy (see People v. Johnson, 75 AD3d 426 [2010] ).

Defendant's claim that his trial counsel rendered ineffective assistance by failing to request a justification charge is unreviewable on direct appeal because it involves matters outside the record concerning counsel's strategic choices

(see People v. Rivera, 71 N.Y.2d 705, 709 [1988];  People v. Love, 57 N.Y.2d 998 [1982] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK