New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Attorneys2 / THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT...
Attorneys, Criminal Law, Trespass

THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE, AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION.

The Fourth Department reversed defendant’s conviction for two reasons: (1) the trial judge acceded to defendant’s request that the jury not be instructed on a lesser included offense, and (2) the trial judge, in light of defendant’s behavior during the trial, should have ordered a competency examination:

​

We agree with defendant, however, that he was denied his right to counsel when County Court permitted him, rather than defense counsel, to decide whether to request a jury charge on a lesser included offense. “It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ ” … . “[D]efense counsel has ultimate decision-making authority over matters of strategy and trial tactics, such as whether to seek a jury charge on a lesser included offense” … . Here, defense counsel requested a charge on the lesser included offense of criminal trespass. After defendant stated that he did not want such a charge, the court noted that defendant’s consent was not required. Nevertheless, defense counsel stated that he was not requesting the charge based on defendant’s decision not to follow his advice. Although defense counsel unequivocally and repeatedly stated that the charge was in defendant’s best interest, and indicated that defendant was declining the charge against defense counsel’s advice, the court abided defendant’s choice and thus “denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him” … . …

​

Although a defendant is presumed to be competent … , whenever a court has a ” reasonable ground for believing that a defendant is in such state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense, it is the duty of the court to direct him to be examined in these respects’ ” … . Here, in light of the nature and frequency of defendant’s outbursts, and the People’s expressed concern about defendant’s competency prior to trial, we conclude that the court abused its discretion in failing to insure that defendant was competent to stand trial … . People v Minckler, 2017 NY Slip Op 03311, 4th Dept 4-28-17

 

CRIMINAL LAW (THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/ATTORNEYS (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/LESSER INCLUDED OFFENSE (THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/JURY INSTRUCTIONS (CRIMINAL LAW, LESSER INCLUDED OFFENSE, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/RIGHT TO COUNSEL (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/COMPETENCY EXAMINATION (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)

April 28, 2017
Tags: Fourth Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 CurlyHost https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png CurlyHost2017-04-28 16:39:142020-01-28 15:15:01THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE, AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION.
You might also like
DIFFERENT OFFENSE DATES IN THE SUPERIOR COURT INFORMATION REQUIRED DISMISSAL.
THE WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE THE APPROXIMATE TIME AND PLACE OF THE OFFENSES, THIS IS A MODE OF PROCEEDINGS ERROR, PLEA TO THE SUPERIOR COURT INFORMATION VACATED (FOURTH DEPT).
REFUSING SECTION 8 VOUCHERS AS RENT PAYMENT VIOLATES THE WEST SENECA FAIR HOUSING CODE (FOURTH DEPT).
THE STATE BREACHED ITS DUTY TO PROTECT AN INMATE FROM AN ATTACK BY OTHER INMATES; COURT OF CLAIMS REVERSED OVER A TWO-JUSTICE DISSENT (FOURTH DEPT).
PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT).
NON-RESPONDENT FATHER’S APPEAL OF THE PLACEMENT OF HIS CHILDREN WITH THE DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES WAS NOT MOOT; THE CHILDREN HAD BEEN PLACED WITH RELATIVES; PLACEMENT WITH THE DEPARTMENT, AS OPPOSED TO WITH RELATIVES, TRIGGERS THE POSSIBLE FUTURE TERMINATION OF FATHER’S PARENTAL RIGHTS (FOURTH DEPT).
53-MONTH PRE-INDICTMENT DELAY DID NOT DENY DEFENDANT DUE PROCESS.
THE ORAL STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION IS INVALID AND UNENFORCEABLE (FOURTH DEPT).

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trusts and Estates
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Water Law
  • Workers' Compensation
  • Zoning

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

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

JUDGE DID NOT GIVE A COMPLETE JURY INSTRUCTION ON THE ELEMENTS OF BURGLARY,... DESCRIPTION OF CLOTHES WORN BY THE SUSPECT DID NOT MATCH THE CLOTHES WORN BY...
Scroll to top