People v. Nesbitt

New York Court of Appeals

People v. Nesbitt

988 N.E.2d 478, 20 N.Y.3d 1080

CourtNew York Court of Appeals

DecidedMarch 26, 2013

StatusPublished

Cited by22 cases

This text of 988 N.E.2d 478 (People v. Nesbitt) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Nesbitt, 988 N.E.2d 478, 20 N.Y.3d 1080 (N.Y. 2013).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Defendant’s trial counsel informed the court (out of the jury’s presence, but on the record) that he believed his client had no defense to the counts of the indictment charging assault in the first degree. As a result, counsel neither requested the submission of second degree assault as a lesser included offense nor made any serious effort to persuade the jury not to convict defendant of first degree assault. In his closing argument, counsel asked the jury to acquit defendant of attempted murder, but virtually invited a conviction for first degree assault. After saying: “on that particular charge [attempted murder], I’m going to ask that you actually check off the box that says ‘Not Guilty,’ ” he added, as to the assault charges: “Make your decision .... I’m sure whatever it is, it will be the right decision.”

In many cases, there may be strategic reasons for a lawyer’s choice not to request a lesser included offense charge, or to contest one charge vigorously while essentially ignoring others. [1082]*1082For that reason, claims of ineffective assistance based on such choices must usually be adjudicated in posttrial motions, so that evidence may be presented to show why counsel acted as he did. But this case, where the lawyer explained his thinking in plain language on the record, is an exception: The record permits us to decide the claim on direct appeal.

Counsel’s belief that his client was without a defense to first degree assault was mistaken. The record affords a good-faith basis for an argument that the injuries the victim received did not result in serious and protracted, or serious and permanent, disfigurement (see Penal Law §§ 120.10 [1], [2]; 10.00 [10]). Our decision in People v McKinnon (15 NY3d 311 [2010]), though rendered after defendant’s trial, shows that the meaning of these statutory terms was an open issue. We conclude that counsel’s error in overlooking that issue rendered his assistance to defendant ineffective (see People v Benevento, 91 NY2d 708 [1998]).

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera taking no part.

Order reversed and a new trial ordered, in a memorandum.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Defendant’s trial counsel informed the court (out of the jury’s presence, but on the record) that he believed his client had no defense to the counts of the indictment charging assault in the first degree. As a result, counsel neither requested the submission of second degree assault as a lesser included offense nor made any serious effort to persuade the jury not to convict defendant of first degree assault. In his closing argument, counsel asked the jury to acquit defendant of attempted murder, but virtually invited a conviction for first degree assault. After saying: “on that particular charge [attempted murder], I’m going to ask that you actually check off the box that says ‘Not Guilty,’ ” he added, as to the assault charges: “Make your decision .... I’m sure whatever it is, it will be the right decision.”

In many cases, there may be strategic reasons for a lawyer’s choice not to request a lesser included offense charge, or to contest one charge vigorously while essentially ignoring others. [1082]*1082For that reason, claims of ineffective assistance based on such choices must usually be adjudicated in posttrial motions, so that evidence may be presented to show why counsel acted as he did. But this case, where the lawyer explained his thinking in plain language on the record, is an exception: The record permits us to decide the claim on direct appeal.

Counsel’s belief that his client was without a defense to first degree assault was mistaken. The record affords a good-faith basis for an argument that the injuries the victim received did not result in serious and protracted, or serious and permanent, disfigurement (see Penal Law §§ 120.10 [1], [2]; 10.00 [10]). Our decision in People v McKinnon (15 NY3d 311 [2010]), though rendered after defendant’s trial, shows that the meaning of these statutory terms was an open issue. We conclude that counsel’s error in overlooking that issue rendered his assistance to defendant ineffective (see People v Benevento, 91 NY2d 708 [1998]).

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera taking no part.

Order reversed and a new trial ordered, in a memorandum.

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988 N.E.2d 478, 20 N.Y.3d 1080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nesbitt-ny-2013.

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