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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Willie L. WALKER, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., WISNER, SCUDDER and LAWTON, JJ. Mary E. Good, New York City, for Defendant-Appellant. Paul J. Williams, III, Orchard Park, for Plaintiff-Respondent.

Defendant failed to preserve for our review his contention that County Court erred in instructing the jury on the defense of justification (see, CPL 470.05[2];  People v. West, 245 A.D.2d 1087, 666 N.Y.S.2d 87, lv. denied 92 N.Y.2d 863, 677 N.Y.S.2d 94, 699 N.E.2d 454).   In any event, the court's justification charge was proper (see, People v. West, supra).

The verdict finding defendant guilty of assault in the first degree (Penal Law § 120.10[1] ) and criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ) is not contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   However, defendant could not have committed assault in the first degree without also committing assault in the second degree (see, CPL 300.30[4];  People v. Seaman, 238 A.D.2d 449, 450, 656 N.Y.S.2d 350, lv. denied 90 N.Y.2d 863, 661 N.Y.S.2d 190, 683 N.E.2d 1064;  see generally, People v. Grier, 37 N.Y.2d 847, 378 N.Y.S.2d 37, 340 N.E.2d 471).   Thus, we modify the judgment by reversing the conviction of assault in the second degree, vacating the sentence imposed thereon and dismissing count three of the indictment (see, People v. Seaman, supra, at 450, 656 N.Y.S.2d 350).

There is no merit to defendant's remaining contentions.   Defendant received effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The court did not err in permitting the prosecutor's use of limited leading questions.   The court also properly sentenced defendant as a persistent felony offender and the sentence is neither unduly harsh nor severe.

The contentions of defendant in his pro se supplemental brief that ineffective assistance of counsel and prosecutorial misconduct deprived him of a fair trial are based on matters outside the record. Defendant's remedy with respect to those contentions is a motion for postjudgment relief (see, CPL 440.10[1] [f] ).   The remaining contentions raised in defendant's pro se supplemental brief have not been preserved for our review (see, CPL 470.05[2] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

Judgment unanimously modified on the law and as modified affirmed.


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