People v Kin Wong
2011 NY Slip Op 00570 [81 AD3d 421]
February 1, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 30, 2011

The People of the State of New York, Respondent,
Kin Wong, Appellant.

[*1] Dan Savatta, New York, for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sean T. Masson of counsel), for respondent.

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 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Concur—Andrias, J.P., Sweeny, Moskowitz, DeGrasse and Abdus-Salaam, JJ.