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ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a strong two-justice dissent, affirmed defendant’s murder conviction despite the introduction of highly prejudicial evidence of unrelated crimes and defense counsel’s failure to object to that inadmissible propensity evidence. The majority decided not to address the inadmissible propensity evidence because defense counsel did not object to it (error not preserved for appeal). The majority further determined that allowing the jury to hear the inadmissible propensity evidence was a valid defense strategy (painting the admission to the charged crime and other crimes as merely tough talk):

We conclude, contrary to the view of our dissenting colleagues, that defendant received effective assistance of counsel. It is well settled that “a reviewing court must avoid confusing true ineffectiveness with mere losing tactics’ ” … . It “is not for [the] court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” … . Crucially, we note that the evidence in question is the very same evidence upon which defendant relied to establish his defense at trial. The defense theory of the case, as articulated in defense counsel’s summation, was that defendant did not kill the victim; he was merely “talking tough” because he was afraid of being in jail. Indeed, as defendant told the investigators, he was just “trying to sound bigger than he really was.” Defense counsel urged the jury to find defendant’s statements unworthy of belief because defendant was frightened and “puffing.” In an effort to deflect the jury’s attention from defendant’s admissions to the charged crime, defense counsel made a deliberate choice, as a matter of trial strategy, to leave those admissions in the context of the gratuitous boasting in which they arose. Although the evidence in question would have been excludable upon a motion by defendant, we conclude that the evidence was consistent with the defense strategy. Moreover, the redaction of such material from the letter and audio recording would have highlighted defendant’s confession to the [charged] homicide. In other words, extracting defendant’s admissions from the extraneous talk that was consistent with the puffing defense would have undercut the defense theory and focused the jury’s attention on defendant’s admissions of guilt. People v Anderson, 2018 NY Slip Op 02105, Fourth Dept 3-23-18

CRIMINAL LAW (ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, UNCHARGED CRIMES, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/UNCHARGED CRIMES (ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/PROPENSITY EVIDENCE (CRIMINAL LAW, UNCHARGED CRIMES, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/INEFFECTIVE ASSISTANCE OF COUNSEL (CRIMINAL LAW, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))

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