People v. Isaac Diggins


AD1 order dated May 26, 2011, affirming denial of 440.10 motion. Decision below: 84 A.D.3d 667. Lippman, Ch. J., granted leave March 30, 2012. ISSUE PRESENTED: Whether trial defense counsel was ineffective when he refused to participate in the proceeding against an absconding defendant, as a "protest strategy." (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)

Issue before the Court: Whether counsel rendered ineffective assistance in failing to actively pursue a defense for a client who had absconded during trial.

Held: A defendant who absconds during trial is still entitled to effective representation. Here, counsel’s failure to pursue a defense during trial constituted ineffective representation, particularly where the defendant had participated in formulating a defense before he absconded.

CAL Observes: As in Okieme Nesbitt and Christopher Oathout, the Court in this case again shows its concern with situations where trial counsel essentially abdicates his or her responsibility by failing to present any defense for his or her client. The Court conducts no prejudice analysis, suggesting that an attorney’s failure to present any defense is per se ineffective.