DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE ONLY DEFENSE AVAILABLE TO THE DEFENDANT; THREE JUDGE DISSENT FOCUSED ON THE WEAKNESS OF THE DEFENSE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined defendant did not receive effective assistance of counsel. Defendant was charged with criminal possession of a weapon. The weapon was discovered by a police officer under a floor mat in defendant’s car after a traffic stop. At trial defendant claimed he was stopped on his way to surrender the weapon to a gun buyback program. The majority concluded defense counsel was ineffective for failure to request the “voluntary surrender” jury charge. Defense counsel requested the “temporary and lawful possession” jury charge, which was directly contradicted by the trial evidence:

Here, counsel knew that his client’s explanation was that he was traveling to turn the gun in to the NYC gun buyback program. Indeed, in his opening statement, counsel admitted to the elements of the crime of criminal possession of a weapon and offered a defense, explaining that Mr. Debellis [defendant] , in desperate need of money, was transporting the gun to a police buyback program in the Bronx.

However, after announcing that line of defense and supporting it through Mr. Debellis’s trial testimony, counsel failed to request the only jury instruction that would give it any legal weight—a defense of voluntary surrender under PL 265.20 (a) (1) (f). Counsel premised his case instead on the common-law defense of temporary and lawful possession, which was completely inapplicable given the length of time Mr. Debellis had possessed the weapon in contravention of a preexisting court order that he had to divest himself of all firearms. Even after the court explicitly told counsel that that it would not instruct the jury on temporary and lawful possession because it did not fit the evidence, counsel failed to request an instruction on the statutory defense that fit his client’s testimony and counsel’s own argument to the jury

From the dissent:

Today the majority holds that defense counsel was ineffective for not requesting a jury charge that would have allowed the jury to find that defendant’s possession of the unlicensed gun was lawful because, at trial, defendant claimed for the first time that he was on his way to a police agency to surrender the gun. Because no reasonable view of the undisputed facts supports such a charge, defendant was not entitled to it. Nor was counsel’s overall performance deficient. Nevertheless, defendant, who denied having a weapon when asked by the police and who was allowed access to the area where he had hidden a loaded gun based on that false statement, thereby endangering the life of the officer who stopped him and numerous nearby civilians, now has his unlawful possession of a weapon conviction reversed by this Court. People v Debellis 2023 NY Slip Op 05964, CtApp 11-21-23

Practice Point: Here defense counsel did not request a jury charge for the only viable defense offered by the defendant in his trial testimony (i.e., he was on his way to surrender the weapon to the gun buyback program when the police found it under the floor mat of his car). The majority held defense counsel was ineffective. The dissent focused on the weakness of the defense. Bottom line, if the defendant has only one defense, even if it is not credible, defense counsel is obligated to present it to the jury.