THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MARSHALL JACKSON DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MARSHALL D. JACKSON, DEFENDANT–APPELLANT.

KA 12–00895

Decided: September 29, 2017

PRESENT:  WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ. FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF COUNSEL), FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25[1] ), defendant contends that trial counsel was ineffective in failing to proffer evidence in support of the affirmative defense of extreme emotional disturbance (see § 125.25[1][a] ).  In support of that contention, defendant relies primarily upon gaps in the trial record, i.e., the absence of testimony from a psychiatric expert for the defense and defense counsel's failure to introduce in evidence defendant's military or medical records.  It is not apparent from the record, however, whether defense counsel undertook an adequate investigation into the affirmative defense of extreme emotional disturbance or whether the decision not to present the testimony of a psychiatric expert or defendant's military or medical records was part of a reasonable trial strategy.  Inasmuch as defendant's contention is based upon matters outside the record, it is not properly before us on his direct appeal and must be pursued by way of a motion pursuant to CPL article 440 (see People v. Barbuto, 126 AD3d 1501, 1504, lv denied 25 NY3d 1159;  People v. Williams, 124 AD3d 1285, 1286, lv denied 25 NY3d 1078).

We reject defendant's further contention that the sentence is unduly harsh and severe.

Mark W. Bennett

Clerk of the Court