The People of the State of New York, Respondent, v. Willie L. Walker, Appellant

The People of the State of New York, Respondent, v Willie L. Walker, Appellant. [713 NYS2d 590] [MAJORITY] —Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: 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 AD2d 1087, lv denied 92 NY2d 863). 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 NY2d 490, 495). 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 AD2d 449, 450, lv denied 90 NY2d 863; see generally, People v Grier, 37 NY2d 847). 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). There is no merit to defendant’s remaining contentions. Defendant received effective assistance of counsel (see, People v Baldi, 54 NY2d 137, 147). 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]). (Appeal from Judgment of Erie County Court, DiTullio, J. — Assault, 1st Degree.) Present— Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.