| People v Brown |
| 2014 NY Slip Op 03374 [117 AD3d 1536] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGermaine Brown, Appellant. |
Thomas J. Eoannou, Buffalo (Jeremy D. Schwartz of counsel), fordefendant-appellant.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.),rendered March 2, 2007. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted on count two of the indictment.
Memorandum: Following a jury trial in 2007, defendant was convicted of assault inthe second degree (Penal Law § 120.05 [2]). On appeal, we reduced theperiod of postrelease supervision to a period of three years, and otherwise affirmed thejudgment (People v Brown,52 AD3d 1237 [2008], lv denied 10 NY3d 956 [2008]). In 2013, defendantmoved for a writ of error coram nobis in this Court, asserting that he was denied effectiveassistance of appellate counsel because counsel had failed to raise an issue on directappeal that would have resulted in reversal, i.e., that County Court's deference to thedecision of defendant to forego a jury charge for a lesser included offense denied him theexpert judgment of counsel, to which the Sixth Amendment entitles him. We granted thewrit, vacated our prior order, and decided to consider the appeal de novo (People v Brown, 105 AD3d1466 [2013]). We now reverse the judgment and grant a new trial on count two ofthe indictment (see People vColville, 20 NY3d 20, 33 [2012]).
In Colville (20 NY3d at 23), the Court of Appeals held that "the decisionwhether to seek a jury charge on lesser-included offenses is a matter of strategy andtactics which ultimately rests with defense counsel." In that case, the trial court agreedwith defense counsel that a reasonable view of the evidence supported his request tosubmit two lesser included offenses to the jury (id.). Nevertheless, "contrary todefense counsel's request and repeated statements that, in his professional judgment, thelesser-included offenses should be given to the jury, the judge did not do so becausedefendant objected" (id.). The jury convicted the defendant of murder, and theCourt of Appeals reversed and ordered a new trial, concluding that, "[b]y deferring todefendant, the judge denied him the expert judgment of counsel to which the SixthAmendment entitles him" (id. at 32).
Here, defense counsel requested that the court charge the jury with respect to thelesser included offense of assault in the third degree (Penal Law § 120.00[1]), and the court agreed. The court then advised defendant that his conviction of alesser included offense would "automatically" result in a probation violation with respectto unrelated charges then pending, whereupon defendant told the court that he did notwant the lesser included offense to be submitted to the jury. Defense counsel requestedan opportunity to confer further with defendant and, after a recess, defendant reiteratedhis position to the court. Defense counsel told the court that defendant's position was"against [the] strong . . . advice" of counsel, and that he and his co-counsel"strongly resisted [defendant's] decision," which defendant was "making on his own,certainly against our advice." Upon questioning by the court, defendant confirmed thatthe decision to forego a charge for a lesser included offense was his own and against theadvice of his attorneys, and the court indicated that it would submit only the offensescharged in the indictment. Defense counsel reiterated his opinion that defendant'sdecision was "the wrong decision." The court did not submit the lesser included offenseto the jury in accordance with defendant's decision, and defendant was convicted ofassault in the second degree (§ 120.05 [2]).
We conclude that the court erred in deferring to defendant in determining whether tosubmit the lesser included offense to the jury inasmuch as that decision "was for theattorney, not the accused, to make" (Colville, 20 NY3d at 32; see People v Taylor, 2 AD3d1306, 1308 [2003], lv denied 2 NY3d 746 [2004]). We agree with defendantthat, contrary to the People's contention, defense counsel "never 'acceded' or'acquiesc[ed]' to defendant's decision . . . except to the extent the judgeimpermissibly left [them] no alternative" (Colville, 20 NY3d at 32). Moreover,we agree with defendant that the court's error in deferring to his decision relative to thecharge for a lesser included offense cannot be deemed harmless beyond a reasonabledoubt (see id. at 32-33). As did the court when it initially granted defensecounsel's request for the charge for a lesser included offense, we conclude that there is areasonable view of the evidence to support a finding that defendant committed the crimeof assault in the third degree (Penal Law § 120.00 [1]), but not assault inthe second degree (§ 120.05 [2]; see CPL 300.50 [2];Colville, 20 NY3d at 32-33). Specifically, a jury reasonably could find thatdefendant intended to cause physical injury to the victim and that he caused physicalinjury to the victim, but that he did not do so "by means of . . . a dangerousinstrument" (§ 120.05 [2]). Although the indictment alleged that defendantattacked the victim with a "box cutter," the victim never observed a box cutter or anyother dangerous instrument in defendant's hands, and he did not know what caused thelacerations on his neck and chest. An employee who witnessed the altercation testifiedthat he never saw a razor, a box cutter, or any other weapon during the fight, and no suchweapon was recovered from the crime scene. Further, defendant was apprehended whilefleeing from the scene, and no weapons were found on defendant, in or near defendant'svehicle, or in the possession of the other occupants of his vehicle. In view of those facts,the court should have given a charge for the lesser included offense of assault in the thirddegree, as requested by defense counsel. Present—Scudder, P.J., Peradotto, Carni,Lindley and Valentino, JJ.