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DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT.

The Second Department, reversing the conviction, determined the defense attorney’s failure to move to sever the defendant’s trial from the co-defendant’s and request a missing witness charge constituted ineffective assistance. The need for severance became apparent during the trial when counsel for the co-defendant pursued a defense antagonistic to that of the defendant. The court noted the motion for severance can be made any time before the end of the trial when the defendant could not previously have been aware of the basis for it:

Where a defendant claims prejudice as a result of a joint trial because his defense is antagonistic to that of a codefendant, “severance is not required solely because of hostility between the parties, differences in their trial strategies or inconsistencies in their defenses” … . However, “severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant’s guilt” … . Thus, severance should be granted where the defenses are not only antagonistic, but also mutually exclusive and irreconcilable … . Although a severance motion must generally be made before the commencement of trial … , CPL 255.20(3) permits a pretrial motion to be made and decided “at any time before the end of trial” when “the defendant could not, with due diligence, have been previously aware” of the basis for the motion. CPL 255.20(3) further provides that the court may, “in the interest of justice, and for good cause shown,” entertain and dispose of a pretrial motion “at any time before sentence.” People v Davydov, 2016 NY Slip Op 08090, 2nd Dept 11-30-16

CRIMINAL LAW (DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)/ATTORNEYS (CRIMINAL, DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)/SEVERANCE, MOTION FOR (DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER AN ANTAGONISTIC DEFENSE WAS PURSUED BY THE CO-DEFENDANT)

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