You are here: / / DEFENSE COUNSEL INEFFECTIVE FOR FAILURE TO MOVE TO SEVER AT TRIAL AFTER...
,

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)

You might also like
COUNTY DID NOT DEMONSTRATE THAT IT DID NOT CREATE THE DANGEROUS CONDITION, I.E. SNOW PILED AT AN INTERSECTION, PLAINTIFF ALLEGED THE INTERSECTION COLLISION WAS CAUSED BY THE INABILITY TO SEE BECAUSE OF THE PILE OF SNOW, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).
DEFENDANT FAILED TO PRESENT EVIDENCE THAT THE AREA OF PLAINTIFF’S SLIP AND FALL WAS INSPECTED OR CLEARED OF ICE AND SNOW DURING THE TWO DAYS PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE AS A MATTER OF LAW (SECOND DEPT).
ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT).
DEFENDANT ATTEMPTED A TURN IN VIOLATION OF THE VEHICLE AND TRAFFIC LAW WHICH CONSTITUTED NEGLIGENCE PER SE, CO-DEFENDANTS, WHOSE TRUCK COLLIDED WITH THE CAR DRIVEN BY THE DEFENDANT WHO VIOLATED THE VEHICLE AND TRAFFIC LAW, ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).
FRYE HEARING REQUIRED TO DETERMINE WHETHER “OTHER UNSPECIFIED PARAPHILIC” DISORDER IS A DIAGNOSIS WHICH IS GENERALLY ACCEPTED IN THE PSYCHIATRIC AND PSYCHOLOGICAL COMMUNITIES.
Wife’s Encumbrance of Marital Property in Violation of Court Order and Knowledge of the Court Order by Mortgage-Holder’s Agent Precluded Payout to Mortgage-Holder from Surplus Foreclosure Sale Proceeds
Statements in Hospital Records Attributable to Plaintiff Not Admissible Because Not Germane to Treatment or Diagnosis/Plaintiff’s Counsel Should Not Have Been Allowed to Comment on Defense’s Failure to Call the Nurse Who Was Going to Testify About the Statements—New Trial Ordered
Failure to Include Restitution in Plea Agreement Required that the Sentencing Court Give the Defendant the Opportunity to Withdraw Her Plea Before Including Restitution in the Sentence

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CRITERIA FOR A MOTION TO DISMISS NOT MET, SUPREME COURT SHOULD NOT HAVE DISMISSED... RULES OF THE CHIEF ADMINISTRATIVE JUDGE CONCERNING THE CONTENTS OF AFFIDAVITS...