PEOPLE v. SEABRA (2018)

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered December 21, 2012, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ).  Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal.  To the extent the record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).  Defendant concedes that his trial attorneys pursued an insanity defense in a competent manner, but claims that they were ineffective solely based on the failure to raise the mitigating defense of extreme emotional disturbance (EED).  Under the circumstances of this particular case, counsel could have reasonably concluded that the insanity defense was stronger than the EED defense, and that raising both defenses would likely harm defendant, such as by confusing the jury (see People v. Lopez, 36 A.D.3d 431, 432, 826 N.Y.S.2d 257 [1st Dept. 2007], lv denied 8 N.Y.3d 947, 836 N.Y.S.2d 557, 868 N.E.2d 240 [2007];  see also People v. Bradley, 88 N.Y.2d 901, 903, 646 N.Y.S.2d 657, 669 N.E.2d 815 [1996] ).

Defendant's alternative argument that the court should have given an EED charge is unpreserved, and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  It would have been improper for the court to give that charge sua sponte (see id.; People v. Perez, 123 A.D.3d 592, 593, 999 N.Y.S.2d 56 [1st Dept. 2014], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015] ).  Furthermore, the court was not obligated to raise the issue of whether defendant wanted an EED charge, or to obtain defendant's “waiver” of that defense (see People v. Olsen, 148 A.D.3d 829, 48 N.Y.S.3d 520 [2d Dept. 2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ).

We perceive no basis for reducing the sentence.