You are here: / / DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER...
,

DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT).

The First Department determined defense counsel was not ineffective for turning down the court’s offer to instruct the jury that it need not adhere to the “acquit-first” rule. The jury had sent out two notes indicating deadlock on the top count (murder):

Defendant also argues that counsel was ineffective for failing to accept the court’s offer, prompted by the prosecutor’s suggestion, to deviate from the “acquit-first” rule … , and allow the jury, which had submitted two deadlock notes as to the top charge of murder in the second degree, to consider the lesser included count of manslaughter in the first degree without first reaching a not guilty verdict on the higher charge. We need not decide whether, as the People argue, counsel’s choice categorically cannot be deemed professionally unreasonable because the procedure the court made available was clearly contrary to New York law. Rather, we find that the choice counsel faced was quintessentially a judgment call, involving a significant measure of instinct and intuition, and therefore that the course chosen cannot be deemed to lack any objectively reasonable strategic basis. For example, counsel could reasonably have believed, as the court indicated it did, that there was some possibility of acquittal on all counts if the course of deliberations was not interrupted by an instruction authorizing departure from the acquit-first rule. In any event, defendant has likewise failed to establish ineffective assistance of counsel under either the state or federal standard. People v Tineo-Santos, 2018 NY Slip Op 02425, First Dept 4-10-18

​CRIMINAL LAW (ATTORNEYS, ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/INEFFECTIVE ASSISTANCE  (ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/ACQUIT FIRST RULE (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, ACQUIT FIRST RULE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR DECLINING THE COURT’S OFFER TO INSTRUCT THE JURY IT COULD DEVIATE FROM THE ACQUIT-FIRST RULE AFTER THE JURY INDICATED IT HAD DEADLOCKED ON THE TOP COUNT (FIRST DEPT))

You might also like
IMPLIED COVENANT OF GOOD FAITH DOES NOT APPLY WHERE THE CONTRACT ALLOWS REFUSAL OF LOANS FOR ANY REASON, EVEN THOUGH THE REFUSAL MAY HAVE BEEN INTENTIONALLY AIMED AT PUTTING PLAINTIFF OUT OF BUSINESS.
CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT).
Effect of “Notwithstanding” Clause; Criteria for Reformation of Contract
DEFENSE COUNSEL MOVED TO SUPPRESS AN UNNOTICED EYEWITNESS IDENTIFICATION OF THE DEFENDANT AFTER BEING TOLD THE IDENTIFICATION WOULD BE PRECLUDED IF HE DID NOT MOVE TO SUPPRESS; DEFENSE COUNSEL INTRODUCED DEFENDANT’S MUG SHOT DESPITE THE SUPPRESSION OF THE PHOTO ID; DEFENSE COUNSEL DID NOT OBJECT TO A DETECTIVE’S IMPROPER IDENTIFICATION OF THE DEFENDANT IN A BLURRY VIDEO; THE MOTION TO VACATE DEFENDANT’S CONVICTION ON INEFFECTIVE ASSSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).
PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 240(6) CAUSES OF ACTION, HEAVY MOTORIZED PALLET JACK SLID ON WATER ON A DESCENDING RAMP.
TENANT ASSAULTED BY INTRUDER, QUESTIONS OF FACT ABOUT FORESEEABILITY, ADEQUACY OF SAFETY PRECAUTIONS, AND PROXIMATE CAUSE REQUIRED REVERSAL OF GRANT OF SUMMARY JUDGMENT TO DEFENDANTS.
A LEASE BETWEEN PLAINTIFF CORPORATION AND DEFENDANTS (ONE OF WHOM WAS A MEMBER OF PLAINTIFF’S BOARD) WAS NOT VOTED ON BY A MAJORITY OF DISINTERESTED DIRECTORS AND WAS THEREFORE VOIDABLE UNDER BUSINESS CORPORATION LAW 713(B); DEFENDANTS BREACHED THEIR FIDUCIARAY DUTY TO THE CORPORATION BY SUBLETTING THE LEASED PREMISES FOR A MUCH HIGHER RENT WITHOUT PLAINTIFF’S KNOWLEDGE (FIRST DEPT).
THE CONTRACTOR THAT HIRED THE SUBCONTRACTOR FOR WHICH THE INJURED PLAINTIFF WORKED WAS THE CONDOMINIUM DEFENDANTS’ STATUTORY AGENT AND THEREFORE CAN BE HELD LIABLE IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

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

QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’... FRAUDULENT CONVEYANCE, TORTIOUS INTERFERENCE WITH CONTRACT, AND DEBTOR-CREDITOR...