The People of the State of New York, Respondent, v. Luis Rosario, Appellant

The People of the State of New York, Respondent, v Luis Rosario, Appellant. [747 NYS2d 382] [MAJORITY] Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered August 12, 1999, convicting defendant, after a jury trial, of attempted murder in the second degree, and sentencing him, as a second violent felony offender, to a term of 10 years, unanimously affirmed. Defendant’s ineffective assistance claim involves matters of strategy and thus would require a CPL 440.10 motion in order to expand the record by way of an explanation for trial counsel’s decisions (see People v Love, 57 NY2d 998). While it appears that defendant did submit such a motion, it further appears that the motion was unsupported by an affirmation from trial counsel and added nothing to the trial record. In any event, that motion was denied, as was leave to appeal to this Court. On the existing record, we conclude that defendant has failed to show “the absence of strategic or other legitimate explanations” for counsel’s conduct (People v Rivera, 71 NY2d 705, 709), or that counsel’s purported errors deprived defendant of a fair trial or affected the result (see People v Benevento, 91 NY2d 708, 713-714; People v Hobot, 84 NY2d 1021, 1024). Defendant’s contention that the court made an insufficient inquiry concerning a possibly sleeping juror is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court’s inquiry, coupled with its own observations, was sufficient to establish that the juror did not miss any of the proceedings (see People v Pulley, 290 AD2d 321). We have considered and rejected defendant’s remaining claims, including those contained in his pro se supplemental brief. Concur — Nardelli, J.P., Buckley, Ellerin, Rubin and Friedman, JJ.