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NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED.

The Second Department determined defendant’s motion to suppress the results of the blood-alcohol test and his statement should not have been granted. Although the police learned the name and phone number of defendant’s counsel before the test was administered, there was no evidence of the source of that information and no evidence counsel “entered” the case such that defendant should have been allowed to talk to his attorney before taking the test. The Second Department offered a concise explanation of the applicable law:

In People v Gursey (22 NY2d 224), the Court of Appeals held in this context that the police “may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand” (id. at 227…). The police have no duty to warn a defendant of this limited right before asking the defendant to submit to a blood alcohol test … . Violation of the limited right to consult with counsel will result in suppression of the test results … . * * *

“[A]n attorney enters’ a criminal matter and triggers the indelible right to counsel when the attorney or a professional associate of the attorney notifies the police that the suspect is represented by counsel” (People v Grice, 100 NY2d 318, 324). Notification given to the police by a third party, such as a member of the defendant’s family, is not sufficient to establish counsel’s entry into the case (see id. at 322 …). Although the holding in Grice related to the triggering of the indelible constitutional right to counsel, we see no reason to apply a less stringent rule for triggering the more limited right to consult with counsel before deciding whether to refuse a blood alcohol test. Indeed, the reasons for applying this clear rule as to entry of counsel for purposes of the constitutional right to counsel …, apply with equal force to the more limited Gursey right. People v Lucifero, 2017 NY Slip Op 00190, 2nd Dept 1-11-17

 

CRIMINAL LAW (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/DRIVING WHILE INTOXICATED (NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/ATTORNEYS (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/RIGHT TO COUNSEL (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/BLOOD ALCOHOL TEST (DWI, (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)/SUPPRESS, MOTION TO (BLOOD ALCOHOL TEST, DWI, NO PROOF DEFENDANT WAS DEPRIVED OF HIS LIMITED RIGHT TO SPEAK TO COUNSEL BEFORE TAKING BLOOD-ALCOHOL TEST, SUPPRESSION SHOULD NOT HAVE BEEN GRANTED, APPLICABLE LAW EXPLAINED)

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DEFENDANT NOT ENTITLED TO JURY TRIAL ON MISDEMEANORS, DESPITE POSSIBLE DEPORTATION UPON CONVICTION.

The First Department determined defendant was not entitled to a jury trial on misdemeanor charges, even though conviction might result in deportation:

… “[A] defendant’s right to a jury trial attaches only to serious offenses, not to petty crimes, the determining factor being length of exposure to incarceration” … . “An offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additiona… l statutory penalties so severe as to indicate that the legislature considered the offense serious” … . Despite the gravity of the impact of deportation on a convicted defendant (see Padilla v Kentucky, 559 US 356 [2010]), deportation consequences are still collateral ,,, , and do not render an otherwise petty offense “serious” for jury trial purposes.

Furthermore, under defendant’s approach, in order to decide whether to grant a jury trial to a noncitizen charged with B misdemeanors, the court would need to analyze the immigration consequences of a particular conviction on the particular defendant, and we find this to be highly impracticable. We note that the immigration impact of this defendant’s conviction is unclear. He is already deportable as an undocumented alien, and only claims that the conviction would block any hypothetical effort to legalize his status. People v Suazo,  1st Dept 1-3-172017 NY Slip Op 00030

CRIMINAL LAW (DEFENDANT NOT ENTITLED TO JURY TRIAL ON MISDEMEANORS, DESPITE POSSIBLE DEPORTATION UPON CONVICTION)/DEPORTATION (CRIMINAL LAW, DEFENDANT NOT ENTITLED TO JURY TRIAL ON MISDEMEANORS, DESPITE POSSIBLE DEPORTATION UPON CONVICTION)/JURY TRIALS (CRIMINAL LAW, DEFENDANT NOT ENTITLED TO JURY TRIAL ON MISDEMEANORS, DESPITE POSSIBLE DEPORTATION UPON CONVICTION)

ATTORNEY, WHO WAS ACTING AS CO-COUNSEL WITH THE DISQUALIFIED LAWFIRM, WAS NOT SUFFICIENTLY ASSOCIATED WITH THE LAWFIRM TO WARRANT DISQUALIFICATION ON CONFLICT OF INTEREST GROUNDS.

The Third Department, reversing Supreme Court, determined defendant did not demonstrate plaintiffs’ attorney, Schultz, should be disqualified based upon a conflict of interest. Plaintiffs, in this motorcycle accident case, were initially represented by a law firm (HHK) which had previously represented defendant. Schultz, who was not part of HHK, was acting as “co-counsel” for plaintiffs, working with an HHK partner, at the time HHK was disqualified. After analyzing the facts, the Third Department found that Schultz was not “associated” with HHK within the meaning of the relevant Rules of Professional Conduct:

The Rules of Professional Conduct prohibit attorneys who are “associated in a firm” from representing a client when a conflict of interest would preclude any one of them from doing so if he or she were practicing alone … . The Rules of Professional Conduct do not define the phrase “associated in a firm,” but it is well established that its meaning extends beyond partners and associates who are employed by the same firm and includes attorneys with “of counsel” relationships … . However, not every lawyer who has any connection or relationship with a firm is considered to be “associated” with that firm for the purpose of imputing a conflict of interest … . Whether an attorney is considered to be “associated in a firm” … is a factual analysis that turns on whether the attorney’s relationship with the firm is sufficiently “close, regular and personal” … .

“Because disqualification can affect a party’s federal and state constitutional rights to counsel of his or her own choosing, the burden is on the party seeking disqualification to show that it is warranted” … . We are unpersuaded that this “heavy burden” was satisfied here … . Kelly v Paulsen, 2016 NY Slip Op 08920, 3rd Dept 12-29-16

 

ATTORNEYS (ATTORNEY, WHO WAS ACTING AS CO-COUNSEL WITH THE DISQUALIFIED LAWFIRM, WAS NOT SUFFICIENTLY ASSOCIATED WITH THE LAWFIRM TO WARRANT DISQUALIFICATION ON CONFLICT OF INTEREST GROUNDS)/CONFLICT OF INTEREST (ATTORNEYS, ATTORNEY, WHO WAS ACTING AS CO-COUNSEL WITH THE DISQUALIFIED LAWFIRM, WAS NOT SUFFICIENTLY ASSOCIATED WITH THE LAWFIRM TO WARRANT DISQUALIFICATION ON CONFLICT OF INTEREST GROUNDS)

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PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL, DETAILED EXPLANATION OFFERED.

The Second Department reversed defendant’s conviction solely on the basis of prosecutorial misconduct. The court offered a detailed explanation of the misconduct:

“[I]n summing up to the jury, [the prosecutor] must stay within the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … .

Here, during that summation, the prosecutor directly attacked defense counsel’s role and his integrity. Specifically, the prosecutor raised a hypothetical that bore no relation to the evidence in the case and then suggested what defense counsel would have argued with respect to that irrelevant hypothetical, in effect, implying that the defense arguments were the product of expediency. This tactic invited the jury to reject defense counsel’s argument not on the merits, but merely because it was raised by defense counsel. We strongly disapprove of this attack on the legitimacy of defense counsel’s role … . The prosecutor also improperly referenced facts not in evidence in order to call for speculation by the jury … and misstated critical testimony provided by a defense witness, alleging that certain facts were “undisputed” when in fact they were disputed … .

The prosecutor improperly appealed to the jury’s sympathy and generalized fear of crime by asserting that the defendant possessed a loaded gun while families and children from the “20 residential buildings” were “everywhere” having “cookouts” and celebrating the Fourth of July, and that because the various police officers “did their jobs,” “fortunately, nothing happened.” These comments implied to the jury that the defendant intended to commit crimes with which he was not charged … . Furthermore, immediately upon praising the police officers who “did their jobs,” the prosecutor turned to the jury and advised that “[n]ow it’s your turn to uphold your oaths as jurors and do your jobs” by finding the defendant guilty. This type of “safe streets” argument is inflammatory and has repeatedly been disapproved by the courts … .

The prosecutor also compared the defendant’s in-court demeanor and appearance to how he appeared on the night of his arrest in order to argue that the jury should not be fooled into considering him a “gentleman” … . The prosecutor went so far as to point to the defendant’s precinct photo and stated that his appearance there represented his “true colors.” People v Brisco, 2016 NY Slip Op 08878, 2nd Dept 12-28-16

 

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT REQURED REVERSAL, DETAILED EXPLANATION OFFERED)

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DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL.

The Fourth Department, reversing defendant’s convictions for criminal possession of a weapon, determined: (1) defendant was deprived of her right to present a defense when the court precluded questions that could reveal the complainant’s motive to lie; (2) prosecutorial misconduct warranted reversal (considered in the interest of justice; (3) allowing the prosecutor to cross-examine defendant about her failure to turn herself in warranted reversal (considered in the interest of justice); and (4) allowing a witness to refer to defendant as a drug dealer warranted reversal (considered in the interest of justice). With respect to the right to present a defense, the court wrote:

… [W]e conclude that defendant was improperly precluded from establishing that the complainant was engaged in a criminal enterprise and regularly purchased crack cocaine—therefore having good reason to possess a gun as compared to defendant. More importantly, that evidence, if credited by the jury, would demonstrate that the complainant had every reason to fabricate the story that the gun belonged to defendant and not her … . In addition, we conclude that the proffered evidence was admissible to complete the narrative of events, i.e., to provide background information as to how and why the complainant allegedly confronted defendant, and to explain the aggressive nature of the confrontation … . Applying those principles here, we conclude that defendant was denied her constitutional right to present a defense … . People v Horton, 2016 NY Slip Op 08727, 4th Dept 12-23-16

CRIMINAL LAW (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/DEFENSE, RIGHT TO PRESENT (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/PROSECUTORIAL MISCONDUCT (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/EVIDENCE (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)

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ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL.

Although deemed harmless error, the Fourth Department determined defendant was denied his right to counsel when the court permitted him to decide whether to request a jury charge on a lesser included offense (despite defense counsel advice that he should not):

“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’ “… . On the other hand, defense counsel has ultimate decision making authority over matters of strategy and trial tactics, such as whether to seek a jury charge on a lesser included offense … . Here, the court “made plain that [it] would be guided solely by defendant’s choice in the matter, despite the defense attorney’s clearly stated views and advice to the contrary,” and thus the court “denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him” … . People v Henley, 2016 NY Slip Op 08729, 4th Dept 12-23-16

CRIMINAL LAW (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/ATTORNEYS (CRIMINAL LAW, ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/RIGHT TO COUNSEL (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/LESSER INCLUDED OFFENSES (ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)/JURY INSTRUCTIONS (CRIMINAL LAW, ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER TO REQUEST A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE DEPRIVES DEFENDANT OF HIS RIGHT TO COUNSEL)

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DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA.

The Fourth Department determined a hearing on defendant’s motion to withdraw his guilty plea should have been held. Defendant was charged with assault. 22 days before the assault defendant had undergone brain surgery. In his motion to withdraw his plea, defendant alleged he was told by his attorney the neurosurgeon had refused to testify if a psychiatric defense was raised. However, the neurosurgeon provided an affidavit stating he never spoke to defendant’s attorney and never refused to testify:

It is well settled that the determination whether to grant a motion to withdraw a guilty plea is within the court’s discretion and that a defendant is entitled to an evidentiary hearing only in rare instances … . The denial of such a motion is not an abuse of discretion “unless there is some evidence of innocence, fraud, or mistake in inducing the plea” … . Here, if the allegations in defendant’s affidavit are true, then defendant’s plea was not voluntarily and intelligently entered inasmuch as it was based upon a mistaken belief that a psychiatric defense was unavailable … . We therefore conclude that defendant’s motion was not “patently insufficient on its face” … , and that the court abused its discretion in denying the motion without an evidentiary hearing … . Thus, we hold the case, reserve decision, and remit the matter to County Court for a hearing on defendant’s motion. People v Noce, 2016 NY Slip Op 08632, 4th Dept 12-23-16

CRIMINAL LAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)/GUILTY PLEA, MOTION TO WITHDRAW (DEFENDANT SHOULD HAVE BEEN GRANTED A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA)

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AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the resentencing of defendant to the same sentence which was overturned on appeal was not an error and failure to object to the resentence did not constitute ineffective assistance. Defendant was charged with attempted murder, assault and criminal possession of a weapon. Defendant and the victim were wrestling with a gun which discharged and wounded the victim. Defendant was convicted only of criminal possession of a weapon (no evidence of intent). The defendant was sentenced as a persistent violent felony offender to 20 years. During the first sentencing, the judge referred to the impact on the victim. Because defendant had not been convicted of shooting the victim, the appellate division reversed finding the sentence to be based upon evidence improperly considered. The judge imposed the same 20-year sentence upon resentencing. Defense counsel didn’t object:

In this case, the resentencing court provided on-the-record, permissible, and wholly nonvindictive reasons substantiating defendant’s sentence. Those reasons included defendant’s three prior felony convictions, a prior parole violation, and a probation report characterizing defendant as “a significant risk to the safety of the community.” The record therefore does not evince actual reliance on improper factors, or the type of retaliatory, vindictive conduct that a prophylactic presumption is designed to protect against. Because defendant’s resentencing claim fails on its merit, defense counsel cannot be deemed ineffective for declining to assert it. People v Flowers, 2016 NY Slip Op 08580, CtApp 12-22-16

CRIMIINAL LAW (AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)/SENTENCING AFTER THE SENTENCE WAS OVERTURNED ON APPEAL BECAUSE THE JUDGE CONSIDERED EVIDENCE OF A CHARGE THAT DID NOT GO TO THE JURY, THE JUDGE IMPOSED THE SAME SENTENCE, SECOND SENTENCE WAS NOT VINDICTIVE, FAILURE TO OBJECT NOT INEFFECTIVE ASSISTANCE)

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DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE, DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined defense counsel was not ineffective. Counsel, following defendant’s wishes. pursued a misidentification defense and did not pursue a justification defense. A video depicted actions which raised the possibility the shooting was justified as self-defense. However, defendant maintained he was not the shooter depicted in the video:

Here, we cannot say that defendant received less than meaningful representation … . Defendant concedes that he instructed counsel to pursue a misidentification defense, and he does not claim that counsel’s professional efforts in that regard were constitutionally deficient. Rather, defendant claims he was deprived of effective assistance when counsel failed to present a defense of justification. We disagree.

Each defense theory available to defendant posed its own challenges, and the choice of one, instead of the other, was not “determinative of the verdict” … . We are not presented with a case in which defendant’s chosen defense theory was self destructive and ensured conviction. Nor did the path taken by counsel undermine his ability to deploy professional skill and expertise in presenting the chosen defense. For the same reasons, counsel was not ineffective for objecting to any charge that would have presented justification to the jury as a response to the jury’s request for further instructions. Thus, we cannot say that counsel’s representation was constitutionally deficient at the time because he vigorously pursued the defense defendant approved rather than the one defendant rejected outright. People v Clark, 2016 NY Slip Op 08485, CtApp 12-20-16

 

CRIMINAL LAW (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO ASSERT THE JUSTIFICATION DEFENSE. DEFENDANT INSISTED HE WAS NOT THE SHOOTER AND INSTRUCTED COUNSEL NOT TO RAISE JUSTIFICATION AS A DEFENSE)

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NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT.

The Court of Appeals determined there was insufficient evidence demonstrating defendant waived his right to be present at his resentencing:

A defendant has the right to be present at all material stages of trial … , including sentencing (see CPL 380.40 [1]). We recently held that a defendant who has been convicted of a felony may waive his right to be present at sentencing, but must do so “expressly” … . The same principle applies in resentencing. The People do not contend otherwise, but insist that an inmate who wishes to waive his right to be present at resentencing should not be required to convey that waiver by personal appearance in court, and that defendant properly waived his right to be present by having his counsel speak on his behalf. Here, however, there is no record of any form of express waiver by defendant himself, whether oral or in writing, and, thus, the issue raised by the People is not presented. Nor in this case can waiver or forfeiture of the right to be present be inferred from defendant’s actions or inaction … . Accordingly, defendant did not validly waive his right to be present. People v Stewart, 2016 NY Slip Op 08398, CtApp 12-15-16

CRIMINAL LAW (NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)/SENTENCING (NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)/WAIVER (CRIMINAL LAW, NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)

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