You are here: / / WHETHER TO MOVE FOR A MISTRIAL IS A DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT,...
,

WHETHER TO MOVE FOR A MISTRIAL IS A DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, THE JUDGE’S ALLOWING DEFENDANT TO DECIDE VIOLATED THE SIXTH AMENDMENT RIGHT TO COUNSEL (FOURTH DEPT).

The Fourth Department, although finding the error harmless, determined that the trial judge should not have left the decision whether or not to move for a mistrial up to the defendant, as opposed to defense counsel. The basis for a potential mistrial was the medical examiner’s testimony that the drowning death of the victim was a “homicide:”

Defendant … contends in his pro se supplemental brief that he was denied his Sixth Amendment right to counsel when the court allowed him to decide, against the professional judgment of his counsel, not to request a mistrial as the remedy for the Medical Examiner’s improper testimony. We agree. “It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ ” … . Defense counsel has ultimate decision-making authority over matters of trial strategy, including the decision whether to request a mistrial … . Here, defense counsel explained to the court that he recommended that defendant move for a mistrial, but that defendant instructed him not to do so. The court then addressed defendant directly and confirmed that defendant wished to proceed with trial. Thus, the court ” denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him’ ” … . People v Szatanek, 2019 NY Slip Op 00794, Fourth Dept 2-1-19

 

You might also like
PLAINTIFF WAS REPAIRING THE FLASHING ON THE ROOF, NOT DOING ROUTINE MAINTENANCE, AT THE TIME HE WAS INJURED ENTITLING HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).
Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid
DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER BECAUSE THE PENNSYLVANIA BURGLARY WAS NOT THE EQUIVALENT OF A NEW YORK FELONY, ALTHOUGH THE ERROR WAS NOT PRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).
JURY INSTRUCTION ALLOWED JURY TO CONSIDER UNCHARGED OFFENSE, A FUNDAMENTAL ERROR THAT NEED NOT BE PRESERVED, JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, PROSECUTOR SHOULD NOT HAVE REFERRED TO EVIDENCE WHICH WAS DESTROYED (FOURTH DEPT).
SENTENCE MUST BE PRONOUNCED ON EACH COUNT OF THE CONVICTION; SENTENCE VACATED AND REMITTED FOR RESENTENCING (FOURTH DEPT).
ASSAULT THIRD IS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND; THE ASSAULT THIRD CONVICTION REVERSED AND THE COUNT DISMISSED; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT). ​
Statute of Limitations Tolled Until Defendant Identified by DNA; Police Had “Tacit Consent” to Enter Apartment
PHONE CALLS TO THE PROTECTED PERSON SUPPORTED CRIMINAL CONTEMPT SECOND DEGREE BUT NOT CRIMINAL CONTEMPT FIRST DEGREE (FOURTH 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

DEFENSE COUNSEL’S TAKING A POSITION ADVERSE TO DEFENDANT’S PRO SE... REMOVING ICE AND SNOW FROM THE ROOF OF A COMMERCIAL BUILDING IS COVERED UNDER...