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IN THE FACE OF OVERWHELMING EVIDENCE, DEFENSE COUNSEL EFFECTIVELY CONCEDED GUILT AND URGED JURY NULLIFICATION ON THE BURGLARY CHARGE BECAUSE THERE WAS NO BREAK-IN AND THE STOLEN ITEMS WERE NOT WORTH MUCH, THE COURT OF APPEALS HELD THAT DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL (CT APP).

The Court of Appeals determined defendant was not deprived of effective assistance of counsel because counsel effectively conceded defendant stole items from the lobby of an apartment building. Defense counsel argued defendant was overcharged (burglary) because, although defendant had no right to be in the lobby, there was no break-in and the stolen items were of minimal value. The Court of Appeals noted that it has held that a defendant cannot argue jury nullification to the jury:

… [I]n People v Weinberg, we concluded that defendant’s argument that “he should have been permitted by the trial court to present the concept of jury nullification during summation is foreclosed by our holding in People v Goetz” (83 NY2d 262, 268 [1994]). Relying on Goetz, we explained that “[p]ermitting defense counsel instead [to en]courage the jury to abdicate its primary function would directly contravene the trial court’s authority, recognized [in] Goetz, to instruct the jury that they must follow and properly apply the law” (id.).

We cannot say that, on this record when viewed in totality, defendant was provided with less than meaningful representation. Here, defense counsel was eminently familiar with the facts of the case and the evidence elicited, including the details of the surveillance video and the photographic exhibits. Given the truly overwhelming evidence against his client on all the charges, and constrained by the limited legitimate defense strategies available, counsel raised what he reasonably perceived could be factual issues in the case, such as the method of defendant’s entry into the building. Counsel’s performance included cogent opening and closing arguments, a motion to dismiss after the People’s case-in-chief, and thorough cross-examinations of the People’s witnesses. Moreover, the trial court did not curb counsel’s jury nullification summation arguments. As a result, the whole record of counsel’s performance demonstrates that defendant has failed to sustain his burden that he was deprived of meaningful representation … . People v Mendoza, 2019 NY Slip Op 04758. CtApp 6-13-19

 

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