One might think that the failure to preserve for review the issue of sufficiency of the evidence when the evidence was insufficient would constitute ineffective assistance of counsel, since the consequence of the failure to comply with the preservation requirements set forth by the Court of Appeals eight years ago in Hines is that the defendant remains incarcerated for a crime not proved. The Appellate Division, Fourth Department does not agree. In Parks the Court rejected a claim that the failure to renew the TOD motion is ineffective, holding that
Contrary to defendant's further contention, defense counsel was not ineffective in failing to renew the motion for a trial order of dismissal (see People v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922), nor was she ineffective in failing to make objections that "would have been unavailing" (People v Guerrero, 22 AD3d 266, 267, lv denied 5 NY3d 882). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see People v Baldi, 54 NY2d 137, 147).
One wonders if Mr. Parks agrees that he received meaningful representation.
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One might also wonder when (or if) some appellate judge will ever screw up the courage to state the obvious: that failure to renew a TOD motion is not, indeed never could be, legitimate, acceptable, or defensible as a "trial tactic," is not something that could ever, under any circumstances, benefit a defendant, and is very simply nothing more than constitutionally ineffective assistance based on what should be recognized as a stunning unfamiliarity with a well-settled legal standard.
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