AD2 order dated October 5, 2010, affirming judgment of conviction. Decision below: 79 AD3d 189, 909 NYS2d 463. Read, J., granted leave June 27, 2011.

ISSUES PRESENTED: (1) Whether the defendant was deprived of the effective assistance of trial counsel when the court allowed the defendant, himself, to overrule defense counsel on his request, which the court had previously granted, to charge lesser included offenses. (2) Whether the court erred in refusing to include a no-duty-to-retreat instruction in its defense-against-deadly-force justification charge, where the incident occurred in the common kitchen area of an SRO hotel in which defendant resided. (Assigned counsel for defendant: Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10^th Floor, NYC 10006.)

Issue before the Court: Is the decision to submit lesser included offenses a tactical decision within counsel's purview or a fundamental decision belonging to the client? 

Held:  In a 4-3 decision, the Court held that whether to submit LIOs is a matter of strategy and tactics for defense counsel.  "By deferring to defendant, the judge denied [the defendant] the expert judgment of counsel to which the Sixth Amendment entitles him."

CAL observes:  The Court resolved an issue that was a source of conflict both in the law and between attorneys and their clients.  The line-up of judges is fascinating and unpredictable -- Judges Read, Lippman, Ciparick, and Graffeo finding it a decision for counsel, and Judges Jones, Smith, and Piggot in dissent arguing both that it's the defendant's destiny and so his decision, and that he shouldn't be heard to complain later about his own miscalculation at trial.  The conflict between the majority and dissent is reminiscient of Jones v. Barnes, and points up the difficulty of identifying what position is "pro-defendant" in this context.