In 2001, the New York Court of Appeals, in People v Hines, 97 NY2d 56 (2001), held that where a motion for a trial order of dismissal at the end of the People's case is denied and the defendant then presents proof, waives the claim that the proof presented by the People was insufficient, and instead a trial order of dismissal motion must be made and based on all of the proof presented, including that presented by the defendant. The Court held that by choosing to put on evidence, defendant waived his right to have only the People's evidence examined for legal sufficiency, and could not avoid the adverse evidence elicited during the defendant's case on his subsequent motion. The Court explained that "we have held that 'a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People's case, proceeds with the risk that he will inadvertently supply a deficiency in the people's case.' Thus, a defendant who presents evidence after a court has declined to grant a trial motion to dismiss made at the close of the People's case waives subsequent review of that determination. Consistent with the overall truth-seeking function of a jury trial, the rationale underlying this rule is that a reviewing court should not disturb a guilty verdict by reversing a judgment based on insufficient evidence without taking into account all of the evidence the jury considered in reaching that verdict, including proof adduced by the defense." People v Hines, 97 NY2d at 61.

Subsequently, as discussed in detail here, the Court of Appeals, relying on Hines has held in People v Lane, 7 NY3d 888, that a defendant's legal sufficiency arguments are not properly preserved for appellate review unless a motion for a trial order of dismissal is renewed at the close of all proof:

After defendant presented his own evidence, he did not renew his earlier argument. Consequently, whether the trial evidence was sufficient to support each element of the crime is not a question of law that this Court may review

.
Thus, the law in New York is clear. In order to preserve for review a claim of legally insufficient proof, counsel must not only make a specific T.O.D. motion at the conclusion of the People's case, but must renew that motion after presenting any proof, even proof irrelevant to the insufficiency.

So what if counsel, recognizing that the proof was insufficient, makes a T.O.D. motion at the close of the People's proof specifying the insufficiency, but fails to renew the motion after the presenting some proof. Is such an error, which results in a client's conviction upon legally insufficient proof being beyond review as a matter of law, ineffective assistance of counsel? Surely there can be no strategic reason for such error. And the catastrophic result of the error is the difference between a conviction and dismissal of the charge. The circumstances when a single error can result is a finding of ineffective assistance of counsel was considered by the Court of Appeals in People v Turner, 5 NY3d 476 (discussed here).

Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation. This is such a rare case, in which both defendant's trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client's manslaughter conviction....[T]he failure to raise a defense as clear-cut and completely dispositive as a statute of limitations . . ., in the absence of a reasonable explanation for it, is hard to reconcile with a defendant's constitutional right to the effective assistance of counsel.

(People v Turner, 5 NY3d 476, 481).

So is the failure to renew a legally correct T.O.D. motion the type of dispositive single error which constitutes ineffective assistance of counsel? The Fourth Department, has at least twice, rejected such claims.
As previously discussed (here), in September, in People v Wright (2007 NYSlipOp 07167) (here), in which the defendant contended that the evidence was legally insufficient to support the crime of depraved indifference murder because the People failed to establish the uncommon brutality and utter wantonness required for that crime, the Court held that

By failing to renew his motion to dismiss after presenting evidence, defendant failed to preserve that contention for our review (see People v Lane, 7 NY3d 888, 889; see also People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678).

In People v Agee, 2008 NY Slip Op 10387 [4th Dept 12/31/08] the Court rejected a claim that the failure to renew a T.O.D. motion based on the proof being legally insufficient to establish depraved assault was ineffective assistance of counsel, explaining that

viewing defense counsel's representation as a whole, we conclude that defendant received effective assistance of counsel (see People v Stultz, 2 NY3d 277, rearg denied 3 NY3d 702; People v Baldi, 54 NY2d 137, 147).

The Court of Appeals holding in Turner is neither discussed nor even cited.
Thus, Mr.Agee will serve a long prison sentence for a crime not proved. Wonder what he thinks of his trial counsel.