AD2 order dated April 29, 2015, affirming judgment of conviction, with two dissenters. Decision below: 129 AD3d 1, 9 NYS3d 277. Miller, J. (AD dissenter), granted leave June 29, 2015.

ISSUES PRESENTED: (1) Whether trial counsel was ineffective in not requesting a charge on justification when counsel refrained from exercising his own professional judgment as to trial strategy in the belief that he was bound by the defendant’s wishes. (2) Where the evidence supported self-defense, whether the court erred in not sua sponte charging the deliberating jury on justification when they referenced that defense in a note. (Assigned counsel: DeNice Powell & Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)

Issue: Ineffective assistance of counsel—namely, whether defense counsel was ineffective for (1) pursuing a misidentification defense exclusively where his client did not want to raise justification or extreme emotional disturbance but the jury asked questions about whether Mr. Clark’s actions were justified, and (2) not objecting to courtroom closure.

 

Held: Counsel was not ineffective on either count. As to the first issue, the court found counsel’s decision to “vigorously pursue[] the defense defendant approved rather than the one defendant rejected outright” was constitutionally sound, as it had the potential for an all-out acquittal.

 

Because the state of the law at the time of Mr. Clark’s trial did not require a court to explore alternatives before excluding family members because of limited seating, under a straightforward application of ineffectiveness standards, the Court found that there was no problem with counsel’s failure to object to the courtroom closure.

 

CAL Observes: The Court appears to take pains to limit this case to its facts. Specifically, the Court seemed swayed because “defendant’s chosen defense theory was [not] self destructive and [did not] ensure[] conviction,” and because a misidentification defense, if successful, would have ensured acquittal on counts relating to the decedent (whom Clark was charged with murdering), and a separate complainant (whom he was charged with assaulting as the victim fled). By contrast, the justification defense would have relieved him only of the second-degree murder conviction.

 

Further, the Court seemed persuaded by the fact that counsel had exercised professional judgment in consultation with his client, taking this outside the realm of cases such as People v. Colville in which a defendant and his attorney are at odds over a decision that is delegated exclusively to either one or the other.