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DEFENDANT WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY REFUSING TO ATTEND THE TRIAL AND DIRECTING DEFENSE COUNSEL NOT TO PARTICIPATE IN THE TRIAL; A TWO-JUSTICE DISSENT CONCLUDED DEFENSE COUNSEL’S FAILURE TO PARTICIPATE CONSTITUTED INEFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed defendant’s conviction after he was tried in absentia. Defendant was properly denied a request for new counsel. Defendant then directed his attorney not to participate in the trial and defendant did not attend the trial. Defense counsel did not participate, except to make a motion for a trial order of dismissal outside the presence of the jury. The two-justice dissent would have reversed on ineffective assistance grounds, concluding that defense counsel should have participated in the trial, despite defendant’s directive:

Defendant contends that he was denied effective assistance of counsel. We reject that contention inasmuch as defendant waived the right to effective assistance of counsel by directing defense counsel not to participate in the proceedings … . * * * When the court had defendant brought into the courtroom and informed him that he had the right to be present for trial and participate in his defense, defendant again objected to the entire proceeding, reiterated that he had fired defense counsel, refused to answer the court’s questions, and renewed his request for substitute counsel. When the court responded that defendant would not receive another attorney but had the right to proceed pro se, defendant left the courtroom. Defense counsel subsequently informed the court that he intended to follow defendant’s directive not to participate in the proceedings. The trial was then held in defendant’s absence. Defense counsel was present but did not participate, except to move, outside the presence of the jury, for a trial order of dismissal.

We conclude that, under these circumstances, defendant waived his right to effective assistance of counsel … . Defendant’s “desire to prevent counsel’s participation, coupled with his adamant refusal to represent himself, translates into an intentional failure to avail himself of his constitutional right to a fair opportunity to defend against the State’s accusations” (id. [internal quotation marks omitted]), and he must therefore “accept the decision he knowingly, voluntarily and intelligently made, and the consequences of his intentional actions and choices” … . People v Lewis, 2024 NY Slip Op 03245. Fourth Dept 6-14-24

Practice Point: Defendant did not attend the trial and directed his attorney not to participate in the trial. Defense counsel did not participate. The majority held defendant had waived his right to effective assistance. A two-justice dissent argued defense counsel’s failure to participate constituted ineffective assistance and would have ordered a new trial.

 

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