People v. Cunningham

*299OPINION OF THE COURT

William Kapelman, J.

Petitioner moves pursuant to CPL 440.10 (subd 1, par [h]) to vacate judgment on the ground that it was obtained in violation of his State and Federal constitutional rights. Specifically, he claims that the trial court’s instruction to the jury as to the element of intent was erroneous because a similar jury instruction was recently held unconstitutional by the Supreme Court of the United States in Sandstrom v Montana (442 US 510). The issue before this court is whether petitioner can collaterally attack the judgment on such grounds where the claimed…