DEFENSE COUNSEL LEFT A PROFFER SESSION MIDWAY THROUGH THE PROCEEDINGS; DURING THE PROFFER SESSION DEFENDANT MADE AN INCRIMINATORY STATEMENT WHICH WAS USED TO IMPEACH HIS CREDIBILITY AT TRIAL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon ineffective assistance of counsel should have been granted. Defense counsel left a proffer session midway through the proceedings:

Supreme Court erred in finding that defendant failed to satisfy his burden of establishing that he received ineffective assistance of counsel when his counsel absented himself from a proffer session midway through the session. Absent an express waiver from defendant, counsel had an obligation to be present during the session and to “be alert to, and to avert if he could, the possibility that defendant’s cooperation would hurt rather than help him” … . Under the circumstances, where counsel advanced no sound strategic reason behind his decision to leave the proffer session, his absence deprived defendant of meaningful representation at a critical stage in the proceeding … . Defendant was prejudiced by counsel’s absence, because a statement defendant made during the proffer session implicating himself in the burglaries for which he was ultimately tried and convicted for, was successfully used by the prosecution to impeach defendant’s credibility at the trial … . People v Anonymous, 2026 NY Slip Op 00980, First Dept 2-19-26

Practice Point: A proffer session is a critical stage of a criminal proceedings at which a defendant may incriminate himself. Here defense counsel’s leaving a proffer session midway constituted ineffective assistance warranting vacation of the conviction.