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).

After detailing the division of authority on this issue, the Second Department decided the case without resolving whose decision control as to seeking to have a lesser offense charged.  Instead, that Court 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. The Court, thus, affirmed, Colville's conviction.

Judge Read of the Court of Appeals granted Mr. Colville leave to appeal. And, writing for a 4 judge majority, Judge Read and the Court of Appeals in People v Colville (2012 NY Slip Op 07047,_NY3d_ [10/23/12]) has finally provided New York attorneys and judges with much needed guidance on this issue. The Court held that "that the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel." Thus, the Court held it was reversible error for the trial court to refuse to charge lesser offenses as requested by counsel " because defendant objected."

The majority, noting that this was the near unanimous position of other courts, rejected the District Attorney's argument that the decision as to whether to request a lesser offense was a fundamental one to be made by the defendant, such as the decision as to whether to enter a guilty plea (Jones v Barnes, 463 US 745), or to request consideration of an affirmative defense (see People v. Petrovich, 87 NY2d 961).