You are here: / / Failure to Request Jury Charge for Lesser Included Offense Constituted I...
,

Failure to Request Jury Charge for Lesser Included Offense Constituted Ineffective Assistance

In finding that defense counsel’s failure to request that the jury be charged with a lesser included offense constituted ineffective assistance, the Court of Appeals wrote:

In his closing argument, [defense] counsel asked the jury to acquit defendant of attempted murder, but virtually invited a conviction for first degree assault. After saying: “on that particular charge [attempted murder], I’m going to ask that you actually check off the box that says ‘not guilty,'” he added, as to the assault charges: “Make your decision . . . . I’m sure, whatever it is, it will be the right decision.” *  *

Counsel’s belief that his client was without a defense to first degree assault was mistaken. The record affords a good-faith basis for an argument that the injuries the victim received did not result in serious and protracted, or serious and permanent, disfigurement … .  We conclude that counsel’s error in overlooking that issue rendered his assistance to defendant ineffective …. People v Nesbitt, 28, CtApp 3-26-13

 

 

 

You might also like
THE PROSECUTION’S FAILURE TO PRESENT A WITNESS TO THE GRAND JURY, AS REQUESTED BY THE DEFENDANT, DID NOT RISE TO A CONSTITUTIONAL DEFECT, THEREFORE THE ISSUE DID NOT SURVIVE DEFENDANT’S GUILTY PLEA (CT APP).
MISDEMEANOR COMPLAINT ADEQUATELY ALLEDGED POSSESSION OF BRASS KNUCKLES.
SCHOOL DISTRICTS DO NOT HAVE THE AUTHORITY TO OVERSEE PRE-KINDERGARTEN PROGRAMS OFFERED BY CHARTER SCHOOLS, BECAUSE THE ISSUE IS ONE OF PURE STATUTORY INTERPRETATION, DEFERENCE TO THE COMMISSIONER OF EDUCATION’S CONTRARY CONCLUSION IS NOT REQUIRED (CT APP).
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (CT APP).
Intoxication Jury Instruction Was Warranted, Conviction Reversed
PROCEDURE FOR DETERMINING WHETHER A PROSECUTOR’S INITIAL STATEMENT OF READINESS FOR TRIAL WAS ILLUSORY CLARIFIED.
THE ACT OF SIMPLE POSSESSSION OF A WEAPON WAS COMPLETE BEFORE THE WEAPON WAS USED TO SHOOT THE VICTIM DURING A ROBBERY; THEREFORE, DESPITE THE OVERLAP OF THE ELEMENTS OF SIMPLE POSSESSION OF A WEAPON AND THE ELEMENTS OF FELONY MURDER AND ROBBERY, CONSECUTIVE SENTENCES WERE PROPERLY IMPOSED (CT APP).
EVEN WHERE IT IS POSSIBLE DEFENDANT LACKS THE CAPACITY TO UNDERSTAND THE SORA RISK-LEVEL PROCEEDINGS, THE RISK-LEVEL ASSESSMENT CAN BE MADE WITHOUT AN INDEPENDANT ASSESSMENT OF DEFENDANT’S MENTAL CAPACITY (CT APP).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

City Deemed Immune from Suit—Governmental and Proprietary Functions Explained... Expert’s Testimony About the Behavior of Sexual Abusers Is Proper/Exclusion...