AD1 order dated November 3, 2011, affirming judgment of conviction. Decision below: 89 AD3d 447, 931 NYS2d 612. Renwick, J. (AD dissenter), granted leave January 17, 2012.

ISSUES PRESENTED: Where defendant was on trial for both attempted second-degree murder and first-degree assault – both Class B violent felonies – whether trial counsel was ineffective for urging the jury to acquit of attempted murder but basically conceding guilt of first-degree assault. The dissent believed that counsel abandoned a colorable jury argument that the elements of first-degree assault were not made out. (Assigned counsel: David Klem & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11^th Floor, NYC 10006.)

Issue before the Court:  Defense counsel announced before trial that he could think up no defense to the first-degree assault charges, so would only defend the attempted murder charge, which was the same level offense (a class B violent felony offense).  Was defense counsel ineffective for not defending the assault charges when a possible defense existed?

Held:  Counsel was ineffective.

CAL Observes:  There was little dispute that counsel’s performance was deficient.  Not only did he not defend the assault charges in any way, but (as revealed in the briefs), he agreed to the shackling of his client, barely participated in jury selection, overstated his client’s record at the Sandoval hearing and used the wrong standard, made no opening statement, and did not cross examine most witnesses.  The dispute was whether counsel’s deficient performance prejudiced the defendant under either the state or federal standards (which are different).  Interestingly, the Court did not decide whether this was per se prejudicial under United States v. Cronic, 466 U.S. 648 (1984), or was otherwise harmful under Strickland v. Washington, 466 U.S. 668 (1984), instead seeming to rule under New York’s “fairness” standard (see People v. Benevento, 91 N.Y.2d 708 (1998)).  Under this ruling, the Court found, counsel must raise a defense when she has a “good faith basis for an argument.”  That is a pretty expansive ruling, which finally gives some real meat to New York’s different, and theoretically broader, IAC “fairness” standard.

            Also of note, the Court found that the issue need not be fully decided at the time of the representation to give rise to counsel’s obligation to litigate the claim.  So long as the existence of the defense was “an open issue” at the time of the trial, counsel had a obligation to the raise it.  Here, the defense was that Mr. Nesbitt did not cause serious and protracted disfigurement, a statutory phrase that was given meaning by the Court (in People v. McKinnon, 15 N.Y.3d 311 (2010)) only after Mr. Nesbitt’s trial.  Thus, although the effectiveness of the representation must be evaluated under the case law at the time of trial, counsel is expected to be aware of “open issues” and litigate accordingly.