In People v Colville (2010 NY Slip Op 07185 [2d Dept 10/5/10]) the Appellate Division, Second Department conducted a thorough review of the cases and commentaries on the question of whether the decision to have the jury consider a lesser included offense is a fundamental one to be made by the defendant or a strategic or tactical one for counsel. As the Court noted

Having accepted the assistance of counsel, a defendant retains authority over certain fundamental decisions (see Jones v Barnes, 463 US 745, 751; People v Colon, 90 NY2d 824, 825; People v White, 73 NY2d 468, 478, cert denied 493 US 859). Strategic and tactical decisions, in contrast, rest with counsel (see People v Colon, 90 NY2d at 826; Arko v. Colorado, 183 P3d 555, 558 [Colo]). The demarcation between the two, however, is elusive (see Government of Virgin Is. v Weatherwax, 77 F3d 1425, 1433, cert denied 519 US 1020).

The Court of Appeals has not yet considered this issue. However, in People v. Petrovich (87 NY2d 961), the Court was presented with a related question: as between the defendant and his counsel, who decides whether the affirmative defense of extreme emotional distress should be submitted to the jury? As the Colville court summarized, The Court of Appeals

held that this decision did not implicate a matter of trial strategy or tactics; rather, it was a fundamental decision and, thus, it fell to the defendant. The Court reasoned, citing to the second edition of the ABA Standards, that a verdict was dispositive of a defendant's fate and the submission of the extreme emotional disturbance defense could be determinative of the verdict. In that sense, as the defendant expressed on the record, eliminating the extreme emotional disturbance defense increased his chances of a full acquittal. Thus, the Court concluded, this was not unlike other fundamental decisions already recognized as belonging to the defendant.

Without explanation, the Appellate Division, Fourth Department in People v Taylor (2 AD3d 1306, 1308 [4th Dept 2003]) cited this holding in Petrovich, as support of its conclusion that a defendant was not deprived of his right to make a fundamental decision when the court considered a lesser-included offense charge after discussing the issue with defense counsel and the prosecutor, without input from the defendant.

So what did the Second Department hold? It concluded that under the facts of the Colville case, in which counsel acquiesced to the defendant's decision not to request submission of lesser-included offenses to the jury, it did not have to reach a decision on this issue, since such acquiescence does not constitute ineffective assistance of counsel even if it was decision to be made by counsel.