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Role of defense counsel with lesser offenses
by Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York


In criminal law, certain fundamental rights are reserved to the defendant personally, while most other decisions are to be made by defense counsel. What is the proper extent of a defendant’s involvement in those other decisions?

Once a lawyer represents a client, the basic choices that a defendant makes are limited: whether to plead guilty; whether to testify; whether to have a bench or jury trial; and whether to appeal, People v. Ferguson, 67 NY2d 383 (1986), see also, People v. Petrovich, 87 NY2d 961 (1996) (murder charge, defendant’s choice of requesting EED charge); People v. Alvarez, 106 AD3d 568 (1st Dept. 2013). Other decisions are for defense counsel to make.

Strategy and tactics

These other decisions may include what strategy to take at trial, what witnesses to call, what motions to make and what objections to raise (the latter decisions being ones that often must be made immediately).

But this dichotomy is a bit too stark. Defendant and counsel should be rowing in the same direction, consulting with each other before a well-anticipated, major decision is made. The attorney, as the professional, should include the defendant in discussions about important decisions, if for no reason other than to avoid later accusations of ineffective assistance. Neither client nor attorney should be blindsided by the other.

Lesser included offenses

Where defendant and counsel differ on an issue that is within defense counsel’s province, it is error for the court to defer to defendant’s request, e.g., on whether to submit a lesser included offense. Several recent decisions address defense counsel’s obligation to make the decision.

After the evidence at trial has been presented, the judge must consult with both attorneys, and decide whether the jury should be allowed to consider a lesser included offense. If a LIO is granted, and the jury acquits on the count charged in the indictment, it must then consider a lesser charge.
The leading New York case is People v. Colville, 20 NY3d 20 (2012), which held that “the decision whether to seek a jury charge on lesser-included offenses is a matter regarding strategy and tactics which ultimately rests with defense counsel.” Defense counsel repeatedly voiced his belief that a chargedown was appropriate, yet the judge made clear that he would be guided solely by the defendant’s wishes. “By deferring to the defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him.”

Defense counsel may consult with the defendant on whether to request a LIO, but the decision is the attorney’s to make. Where the record showed that defense counsel acceded to the client’s wishes, and did not exercise independent judgment, the attorney was found constitutionally ineffective, People v. Brown, 117 AD3d 1536 (4th Dept. 2014).

The same analysis occurred with a trial where the attorney and client differed on whether to admit evidence. The judge agreed with the defendant, over defense counsel’s vigorous objection. “Defendant was represented by counsel throughout the case, and there was no form of hybrid representation. The decision to introduce evidence was not a fundamental decision reserved to defendant, but a strategic or tactical decision for his attorney.” It was error to admit the evidence, People v. Lee, 120 AD3d 1137 (1st Dept. 2014).

But where the record showed a difference between attorney and client on whether to request a chargedown, yet failed to show that the attorney had deferred to the defendant’s wishes, the claim of ineffective assistance was denied on appeal, People v. Gottsche, 118 AD3d 1303 (4th Dept. 2014).

© 2014 by Gary Muldoon