Friday, December 20, 2013

Jill Paperno and Brian Shiffrin


    Courts divide the decision-making between counsel and client into two categories – fundamental and strategic. If a decision is “fundamental” it is reserved to the defendant.  If it is strategic, it is reserved to the attorney.  People v. Colville 20 N.Y.3d 20.

A defendant having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case (i.e., whether to plead guilty, waive a jury  trial, testify in his or her own behalf or take an appeal; Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987; People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 supra )

People v. White, 73 N.Y.2d 468, 478, 539 N.E.2d 577, 582-83 (1989).  See also, Jones v. Barnes, 463 US 745.

These holdings are consistent with the proper role of the attorney and the client. While defendant has a fundamental right to counsel and a fundamental right to represent himself, he has no right to “hybrid” representation (People v. Mirenda, 57 N.Y.2d 261, 265–266, n., 455 N.Y.S.2d 752, 442 N.E.2d 49 n.). Thus, a defendant who has a lawyer relegates control of much of the case to the lawyer except as to certain fundamental decisions reserved to the client (see, People v. Jordan, 96 A.D.2d 1060, 1061, 466 N.Y.S.2d 486, affd. 62 N.Y.2d 825, 477 N.Y.S.2d 605, 466 N.E.2d 145).

People v. Ferguson, 67 N.Y.2d 383, 390, 494 N.E.2d 77, 81 (1986)

    The United States Supreme Court explained division of authority in New York v Hill, 528 U.S. 110 (2000):

What suffices for waiver depends on the nature of the right at issue.“[W]hether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.” United States v. Olano, 507 U.S. 725, 733 (1993). For certain fundamental rights, the defendant must personally make an informed waiver. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464—465 (1938) (right to counsel); Brookhart v. Janis, 384 U.S. 1, 7—8 (1966) (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. “Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has–and must have–full authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 417—418 (1988). As to many decisions pertaining to the conduct of the trial, the defendant is “deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ” Link v. Wabash R. Co., 370 U.S. 626, 634 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326 (1880). Thus, decisions by counsel are generally given effect as to what arguments to pursue, see Jones v. Barnes, 463 U.S. 745, 751 (1983), what evidentiary objections to raise, see Henry v. Mississippi, 379 U.S. 443, 451 (1965), and what agreements to conclude regarding the admission of evidence, see United States v. McGill, 11 F.3d 223, 226—227 (CA1 1993). Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last


1.  Right to testify

    “One of the fundamental precepts of due process is that a defendant in a criminal proceeding has the right to testify, which right is guaranteed under both the Federal and New York State Constitutions (cites omitted).”  People v. Mason 263 AD2d 73, 76.  See also, People v. White, 73 NY2d 468.

    This is a decision the defendant gets to make; defense counsel may beg, plead and cajole the client not to testify, but may not prevent the client from testifying. 

    An attorney must inform the defendant of the right to testify, even if the attorney disagrees with it.  People v. Cosby, 82 AD3d 63

    Sometimes attorneys do not advise their clients of upcoming grand jury proceedings, but it is clear that a defendant has the right to testify before the grand jury as well.  (People v. Brumfield, __ AD2d __, 9/27/13 (Fourth Dept.)

2.  Whether to plead guilty

    A defendant has the right to decide whether to plead guilty or go to trial.  People v. White, 73 NY2d 468.

3.  Whether to waive a jury and proceed with a bench trial

    A defendant has the right to decide whether to waive a jury trial and proceed with a bench trial.  People v. White, 73 NY2d 468

4.  Whether to appeal a conviction

     A defendant has the right to decide whether to appeal his or her conviction.  People v. White, 73 NY2d 468.

5.  Certain defenses

    A defendant is entitled to make the decision of whether to proceed with the defense of Extreme Emotional Disturbance (People v. Petrovich 87 NY2d 961).

    A decision of whether to pursue a defense of insanity may be one that is reserved to the defendant as discussed in dicta in People v. Washington, 5 Misc. 3d 957, reversed on other grounds Washington v. Poole, 742 F.Supp. 2d 3323, although the Third Department decision in People v. Copp 184 AD2d 859 suggests that decision is one reserved for the attorney.  See also, People v. Rizzo, 301 AD2d 682.

6.  Whether to be present during court proceedings

    A defendant has the right to be present at trial and certain pretrial proceedings.  The attorney cannot waive that right on behalf of the defendant.  Whether a proceeding is one for which the defendant has the right to be present depends on the nature of the proceeding.

In determining whether a defendant has a right to be present during a particular proceeding, a key factor is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position. If so, as in Anderson (supra) and Turaine (supra), then the defendant has a right to be present. The Sandoval hearing in this case was such a proceeding.

People v. Dokes, 79 N.Y.2d 656, 660, 595 N.E.2d 836, 839 (1992)


        These are among the decision a lawyer can make unilaterally.  However, just because you can, doesn’t mean you should.  It’s always better if you and your client can reach a decision together after discussing all of the options.

    1.  Selecting a defense or requesting lesser included offenses

         A defendant does not have the right to determine whether to request a lesser included offense be charged to the jury with certain exceptions.

        This decision is a difficult one, as on the one hand, without lesser, the jury has to decide whether defendant is guilty of the top count or not, and the decision is “all or nothing”, while on the other hand, if there is insufficient proof on the top count, and a lesser is read to the jury, a jury may compromise and convicted on a lesser, instead of acquitting on everything.  Counsel should consult with the defendant, but counsel may not leave the decision entirely up to the defendant without advice of counsel.  People v. Colville, 20 N.Y.3d 20

    2.  Mistrial

        The defendant does not have to agree to the defense counsel’s request for a mistrial.  People v. Ferguson, 67 N.Y.2d 383.

    3.  Closure of the courtroom 

        Whether to consent to the closure of the courtroom is a decision that does not require the defendant’s consent.  People v. Vanegas, 243 A.D.2d 261.

    4.  Challenge to a particular juror

        Defense counsel retains sole authority to challenge jurors People v. Colon, 90 NY2d 824.

        5.  Foregoing second suppression hearing, waiving statutory speedy trial rights and other issues

The decision to forego a duplicate suppression hearing as superfluous is precisely the type of day-to-day decision making over which an attorney, in his or her professional judgment, retains sole authority (compare, People v. Colon, supra [jury selection involves tactical decisions entrusted to attorney];  *652 People v. Ferguson, 67 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77 [decision to consent to a mistrial is reserved to attorney]; People v. Trepasso, 197 A.D.2d 891, 602 N.Y.S.2d 291, lv. denied 82 N.Y.2d 854, 606 N.Y.S.2d 606, 627 N.E.2d 527 [decision concerning waiver of statutory speedy trial right is reserved to attorney]; People v. Johnson, 150 Misc.2d 1024, 570 N.Y.S.2d 773 [decision to waive operation of CPL 180.80 is reserved to attorney], with People v. Petrovich, 87 N.Y.2d 961, 641 N.Y.S.2d 592, 664 N.E.2d 503 [decision to request submission of extreme emotional disturbance defense to jury falls to the defendant]).

People v. Parker, 290 A.D.2d 650, 651-52, 736 N.Y.S.2d 162, 165 (2002)

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