Opinion
May 1, 1997
Appeal from the Supreme Court, Bronx County (John Byrne, J.).
The motion court was procedurally barred from considering the merits of defendant's CPL 440.10 motion. Sufficient facts appeared on the record to have permitted appellate counsel to raise the issue of written jury instructions on defendant's 1984 direct appeal ( see, CPL 440.10[c]). Since appellate counsel made a tactical decision not to raise this contention and to focus on several other significant arguments, defendant was not denied effective appellate counsel ( Jones v. Barnes, 463 U.S. 745, 754), as we have already held in denying defendant's coram nobis motion. Nevertheless, since appellate counsel had the opportunity to raise the issue, his failure to do so for whatever reason must be considered "unjustifiable" for purposes of the statute ( see, People v. Byrdsong, 234 A.D.2d 468). Defendant's remaining arguments are without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach, Rubin and Tom, JJ.