The People, Respondent,v.Akieme Nesbitt, Appellant.BriefN.Y.February 5, 2013Oral argument of 15 minutes requested by: DAVID J. KLEM Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - AKIEME NESBITT, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT ROBERT S. DEAN Attorney for Defendant-Appellant CENTER FOR APPELLATE LITIGATION 74 Trinity Place New York, NY 10006 (212) 577-2523, Ext. 527 Fax: (212) 577-2535 DAVID J. KLEM dklem@cfal.org Of Counsel July 9, 2012 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii ARGUMENT IN REPLY TRIAL COUNSEL WAS INEFFECTIVE FOR CONCEDING GUILT ON TWO OF THE THREE TOP COUNTS OF THE INDICTMENT, NOT PRESENTING ANY DEFENSE WHATSOEVER ON THOSE CHARGES WHEN A VIABLE DEFENSE EXISTED, AND IN NOT REQUESTING AN AVAILABLE LESSER INCLUDED OFFENSE.. . . . . . . . . 1 I. Counsel’s Concession of Guilt on the Assault Counts Was Per Se Ineffective.. . . . . . . . . . 1 II. Counsel’s Failure to Present a Viable Defense to the Assault Charges Was Ineffective. . . . . . 8 III. Mr. Nesbitt Was Harmed By Counsel’s Failings. . . 12 IV. Counsel’s Ineffectiveness Is Fully Reviewable Given His Contemporaneous On-the-Record Explanations. . . . . . . . . . . . . . . . . . . 18 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . 21 PRINTING SPECIFICATIONS STATEMENT.. . . . . . . . . . . . . 22 TABLE OF AUTHORITIES CASES People v. Benevento, 91 N.Y.2d 708 (1988).. . . . . . . 14, 18 People v. Caban, 5 N.Y.3d 143 (2005). . . . . . . . . . 14, 15 People v. Castillo, 199 A.D.2d 276 (2d Dep’t 1993). . . . . 9 People v. Evans, 16 N.Y.3d 571 (2011).. . . . . . . . . . . 16 People v. Feliciano, 17 N.Y.3d 14 (2011). . . . . . . . . . 15 People v. Hogencamp, 295 A.D.2d 643 (3d Dep’t 2002).. . . . 7 People v. Lopez, 16 N.Y.3d 375 (2011).. . . . . . . . . . . 18 People v. Martin, 59 N.Y.3d 704 (1983). . . . . . . . . . . 12 People v. McKinnon, 15 N.Y.3d 311 (2010). . . . . . . . 9, 10 People v. McLaughlin, 8 A.D.3d 146 (1 Dep’t 2004). . . . . 11st People v. Monroe, 6 A.D.3d 240 (1 Dep’t 2004). . . . . . . 7st People v Nesbitt 89 A.D.3d 447 (1 Dep’t 2011). . . . . . . 13st People v. Nimmons, 95 A.D.3d 1360 (2d Dep’t 2012).. . . . . 9 People v. Petrovich, 87 N.Y.2d 961 (1996).. . . . . . . . . 2 People v. Stewart, 18 N.Y.3d 831 (2011).. . . . . . . . . . 10 People v. Stultz, 5 N.Y.3d 277 (2004).. . . . . . . . . . . 15 Torres v. State, 688 N.W.2d 569 (Minn. 2004). . . . . . . . 3 -ii- COURT OF APPEALS STATE OF NEW YORK ----------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : : -against- : AKIEME NESBITT, : Defendant-Appellant. : ----------------------------------------X ARGUMENT IN REPLY TRIAL COUNSEL WAS INEFFECTIVE FOR CONCEDING GUILT ON TWO OF THE THREE TOP COUNTS OF THE INDICTMENT, NOT PRESENTING ANY DEFENSE WHATSOEVER ON THOSE CHARGES WHEN A VIABLE DEFENSE EXISTED, AND IN NOT REQUESTING AN AVAILABLE LESSER INCLUDED OFFENSE. I. Counsel’s Concession of Guilt on the Assault Counts Was Per Se Ineffective Unaddressed by the prosecution’s response brief (“Resp.”) is the principal claim raised in Mr. Nesbitt’s main brief (“Brief”): Why a concession of guilt on the top count of an indictment is per se ineffective assistance of counsel when a defendant does not agree to that concession. Compare Brief at 27-39 (collecting cases from across the nation so holding), with Resp. at 23-25 (setting forth the standard for non-per se claims of ineffective assistance of counsel). Presumably, the prosecution does not and cannot contest that defense counsel is ineffective when he asks the jury to convict his own client on the top count of the indictment. See generally People v. Petrovich, 87 N.Y.2d 961 (1996) (holding that the decision to submit a defense of extreme emotional disturbance, which lowers but does not negate guilt, is reserved for the defendant). Here, defense counsel did just that, effectively asking the jury to convict Mr. Nesbitt of the top counts of first-degree assault (class B violent felony offenses), which has led to his incarceration for a 25 year term. The prosecution presumably believes that the wealth of authority holding that concessions to top counts without a defendant’s consent does not apply here because trial counsel did not utter the words “convict my client of first-degree assault.” See Resp. at 46 (claiming that “counsel never ‘conceded’ defendant’s guilt on the first-degree assault charges”); Resp. at 51 n.8 (“defense counsel’s strategy was not a concession of guilt”). To be sure, counsel never specifically1 uttered those words. However, an implied concession of guilt is just as damning to the defendant as an explicit concession. Here, counsel impliedly conceded guilt because “a reasonable Notably, the prosecution does not appear to contend that it was1 proper for trial counsel to concede guilt on the first-degree assault charges in order to further his defense on the attempted murder charge. As detailed in the main brief, see Brief at 36-38, all three charges in the case were of the same level of serious, had the same sentencing exposure, and had to result in concurrent time. See also Resp. at 45 (“first-degree assault is a class B violent felony offense, as is attempted second-degree murder, and therefore technically subjected defendant to the same sentencing range as attempted murder”). Thus, a concession on any one of the counts would have the same effect as a concession on all the counts. -2- person viewing the totality of the circumstances would conclude that counsel conceded the defendant[’]s guilt.” Torres v. State, 688 N.W.2d 569, 573 (Minn. 2004). Even a cursory review of trial counsel’s actions, and lack of actions, demonstrates conclusively that he impliedly conceded Mr. Nesbitt’s guilt on the first-degree assault counts. When first addressing the jurors, during his very brief voir dire, counsel sought assurances from the prospective jurors that they would not have “a problem finding not guilty on one [count], but guilty on the other” (A. 108). He told them that later, “on closing,” he would “argue to you that one crime may have been proven, but another was not” (A. 109). Then, after offering no opening statement and not cross examining most witnesses, counsel proved true to his word. During summation, he reminded them of what he had said during jury selection (A. 329). He then proceeded to address only the attempted murder charge, leaving it to “your function” to render a verdict as “to the assault charges” (A. 329). That decision on the assault charges was “up to you” (A. 320). “[W]hatever you do as to those assault charges, I leave that up to you. You saw the evidence. You heard the evidence. . . . If you find that there was enough for assault, find guilty. I’m sure whatever your decision is, it will be the right decision” (A. 341). In summing up, counsel asked the jurors “to find Mr. Nesbitt not guilty [on the -3- attempted murder charge], and make the right decision as to the other charges.” (A. 342). The “right decision,” he contrasted with the “not guilty” decision on the attempted murder charge, thus clearly implying that the “right decision” on the assault charges was a guilty verdict. The prosecution now seeks to color counsel’s actions or inactions and effectively rewrite that summation. According to the prosecution, counsel “made a series of coherent, well- reasoned arguments by which he strategically challenged the compelling evidence of defendant’s guilt of the charged crimes.” Resp. at 37-38 (emphasis added). Little of what the prosecution then carefully paraphrases supports the claim that counsel made any type of challenge to the evidence supporting the assault charges. In fact, virtually the entire description given by the prosecution of counsel’s summation concerns his defense of the attempted murder charge. See Resp. at 38-42. In the five pages of the prosecution’s brief devoted to counsel’s summation, the prosecution only points to two statements in which they claim counsel theoretically defended the assault charges. Neither statement of counsel, when placed in proper context, supports the prosecution’s claim. True, counsel did point out that the attempted murder charge and the assault charges “had their own elements that the People were required to prove.” Resp. at 38. Counsel did that, not for the reasons -4- belatedly proffered by the prosecution, but solely to advance his argument that the jurors should “find not guilty” on the attempted murder charge and “find guilty” on the assault charges (A. 330). Emphasizing the different elements was part of counsel’s strategy to concede guilt on the assault counts while preserving his challenge to the attempted murder count. Nor did counsel, “[i]n an obvious attempt to suggest that the People had failed to present sufficient proof of his guilt of either attempted murder or assault, . . . urge[] the jurors to consider that they ‘need[ed] to know about the weapon’ . . . .” Resp. at 40 (emphasis added). The sentence before the one quoted by the prosecution puts that remark in proper context: “If . . . you shoot somebody up with a BB-gun, and it causes wounds and injuries, even if it could take somebody’s eye out, can you say that somebody necessarily caused or intended to cause the death of somebody else by shooting a BB-gun? You need to know about the weapon.” (A. 340 (emphasis added)). That was not an “obvious attempt” to challenge the assault charges, but was rather part and parcel of counsel’s challenge to the attempted murder charge. If what the prosecution means to say now is that counsel could have used the same evidence and even some of the same arguments to also challenge the assault charges, then we agree. His failure to make that challenge is the issue. -5- Notably, even the prosecutor at trial recognized that defense counsel had conceded Mr. Nesbitt’s guilt on the assault charges during his summation. “The Defense even concedes the Assault 1 counts,” the prosecutor flatly stated during his summation (A. 365). The prosecutor also recognized that “no question” had been raised “here that the defendant intended to cause serious physical injury . . . [and] did, in fact, seriously physically injure” (A. 344-45). Despite what the prosecution now claims was counsel’s “zealous and vigilant advoca[cy] on defendant’s behalf during the People’s summation,” Resp. at 42, counsel never objected to either of those statements, thus indicating to the jurors that he did not think the comments were erroneous. The prosecution now maintains otherwise, claiming that counsel’s objection lodged three paragraphs after one of those statements “conveyed to the jury that he took issue with the People’s suggestion that defendant’s guilt of the assault charges was not a contested issue at trial.” Resp. at 44. Counsel’s objection was to the prosecutor subsequently asking the jurors “Why are we here” and his further explanation that the jurors were here “because this defendant has the [r]ight to hold the People to our burden” (A. 346). Counsel in his objection sought to emphasize that he was challenging defendant’s guilt of attempted murder, not assault. -6- Never once did counsel indicate to the jurors that he had not conceded the assault charges. The prosecution is wrong to compare this case to situations where the defense tactically concedes guilt on the lesser offense in order to preserve credibility and further the chances of acquittal on the top count. Thus, reliance on People v. Hogencamp, 295 A.D.2d 643, 644 (3d Dep’t 2002), is misplaced, see Resp. at 49, because there counsel argued for acquittal of the felony count and merely conceded guilt on the misdemeanor count. This was not even comparable to the situation in People v. Monroe, 6 A.D.3d 240 (1 Dep’t 2004), relied on by thest prosecution, see Resp. at 51, where counsel’s strategy of attacking some top counts, if successful, would have lessened the overall sentence the defendant faced. Here, Mr. Nesbitt faced – and ultimately received – the maximum possible sentence (a term of 25 years’ incarceration) on the conceded assault counts that he could possibly have received had he been convicted of every count in the indictment. Thus, even without considering counsel’s overall sub-par performance in this case, this Court should conclude that counsel’s actions and inactions amounted to an implied concession of guilt on the first-degree assault counts. Because a concession of guilt, whether implied or explicit, by counsel without his client’s consent on a top concurrent count of the -7- indictment is per se ineffective, Mr. Nesbitt’s conviction should be reversed and a new trial ordered. II. Counsel’s Failure to Present a Viable Defense to the Assault Charges Was Ineffective Even were this claim to be examined under the standards governing non-per-se ineffective assistance of counsel claims, trial counsel’s performance was still deficient and that deficient performance prejudiced Mr. Nesbitt and/ or led to the proceeding being unfair. See Brief at 39-54. The prosecution now contends that given what they term the “compelling evidence” of injury, “it is not surprising that trial counsel . . . was unable to obtain an acquittal on the assault charges.” Resp. at 25-26. The error, though, was not in failing to obtain an acquittal in a case for which sufficient evidence existed, but rather it was in failing to raise any defense to the assault charges whatsoever when viable defenses to those charges existed so as to afford Mr. Nesbitt a chance at acquittal. The evidence of serious physical injury was not so unassailable that counsel should have forgone putting forth a defense. Notably, the prosecution has dropped their claim advanced below that the cut which came near, but did not impact the carotid artery could have “cause[d] death” or “a substantial risk of death.” Penal Law § 10.00(10). The possible impact of a hypothetical different injury does not even amount to legally -8- sufficient evidence to support the charge. See People v. Nimmons, 95 A.D.3d 1360 (2d Dep’t 2012) (holding that evidence of “the potential consequences” of wounds to the chest is not legally sufficient where the actual “wound inflicted here” did not create a substantial risk of death); see also Brief at 41-42 (collecting cases). Nor, contrary to the prosecution’s claim, see Resp. at 25, 30, was there even legally sufficient evidence establishing any “protracted impairment of the function of any bodily organ.” Penal Law § 10.00(10). The prosecution cites not one case in support of their claim that an occasional “loss of sensation,” Resp. at 30, in a few inches of an arm establishes the “protracted impairment” of “the function” of a “bodily organ.” Cf. People v. Castillo, 199 A.D.2d 276, 277 (2d Dep’t 1993) (holding that evidence of such impairment was legally insufficient where the complainant testified “[i]t hurts once in a while when the weather changes”); see also Brief at 43 (collecting additional cases). As to the scarring, this Court has held that “[a] person is ‘seriously’ disfigured when a reasonable observer would find her altered appearance distressing or objectionable.” People v. McKinnon, 15 N.Y.3d 311, 315 (2010). That “objective” standard requires that the jurors consider the injury’s “location on the body and any relevant aspects of the victim’s overall physical -9- appearance.” Id. Thus, even if there was “permanent scarring,” Resp. at 28, that alone does not establish serious disfigurement. See McKinnon, 15 N.Y.3d at 315 (finding scars that remained visible years later were legally insufficient to establish the injury necessary for first-degree assault). In People v. Stewart, 18 N.Y.3d 831 (2011), a case with remarkable similar facts, see Brief at 45, this Court found the numerous scars left by the slashing “were not shown to be objectively ‘distressing or objectionable’” so as to support the first- degree assault charges. Id. at 832. The prosecution claims the injuries here stand in “stark contrast” to those in Stewart, but the facts they point to do not support that claim. Resp. at 61. The fact that the knives used were different, see Resp. at 61, does not support any claim regarding the objectionable quality of the resultant injuries. The fact that “sutures” were required here, see Resp. at 61, is no different than in Stewart where the wounds were “sutured,” 18 N.Y.3d at 832. In both cases, the “superficial” injuries which required no hospitalization (beyond the immediate care) and no follow up treatment, left visible marks years later. The most significant difference with Stewart is that here the issue is not whether the first-degree assault charges were “proven by legally sufficient evidence,” Resp. at 61, but rather, the question is whether there was any room for counsel -10- to have made an argument that the injuries were not necessarily so “distressing or objectionable” as to constitute first-degree assault. That the defense does not in this forum at this time “contest” “the legal sufficiency of the evidence,” Resp. at 29, 61, does not mean that the jurors should not have been focused on deciding that quintessentially factual question and with the benefit of reasoned arguments by counsel. The other quintessential jury question, which counsel failed to raise, was whether Mr. Nesbitt necessarily had the intent to cause serious physical injury. See Brief at 46-47. That Mr. Nesbitt made “belligerent comments,” announced that he would show how folks “from Brooklyn” do things, and asked where his “blade” was, Resp. at 27, does nothing to establish that Mr. Nesbitt specially intended to cause “serious and protracted disfigurement,” rather than some other type of injury. Without proof beyond a reasonable doubt of Mr. Nesbitt’s specific intent to maim, an acquittal would have been required. See People v. McLaughlin, 8 A.D.3d 146, 147 (1 Dep’t 2004).st Trial counsel not only failed to present any reason or argument for the jurors not to convict on the first-degree assault charges, but he foreswore the opportunity for the jurors to consider a lesser-included offense. Second-degree assault was a proper lesser-included offense for the jury to consider in this case, but counsel – though offered the opportunity to make -11- such a request (A. 324) – had no “lesser includeds in mind” (A. 324-25; see also A. 328). Notably, the prosecution does not contest that second-degree assault is a proper lesser-included offense to first-degree assault based on either the theory that the injury was not necessarily serious physical injury or that the defendant’s intent was not necessarily to specifically cause serious physical injury. See Resp. at 63. Thus, so long as there was “any reasonable view of the evidence” such that the jurors could find that Mr. Nesbitt intended to harm the victim, but not necessarily seriously injure him, or that the injuries did not necessarily constitute serious physical injury, then the lesser had to be charged upon request. See People v. Martin, 59 N.Y.3d 704, 705 (1983). Given that the trial court would have been obligated to grant the motion for the lesser-included offense of second-degree assault in this case, counsel had no reason for foregoing that charge as he was not otherwise presenting the jurors with any reason to acquit on the first- degree assault charges. III. Mr. Nesbitt Was Harmed By Counsel’s Failings Mr. Nesbitt stands convicted and sentenced to 25 years’ incarceration based on a crime about which even the prosecution admits “counsel . . . did not explicitly argue” or present a defense. Resp. at 54. Instead, the prosecution believes it is -12- appropriate and proper for a defense attorney to fail to raise what every Justice in the Appellate Division found was at least “a colorable argument to the jury that the People did not meet the elements of first degree assault.” Resp. at 53 (quoting People v Nesbitt 89 A.D.3d 447, 451 (1 Dep’t 2011) (reprintedst A. 11)). The prosecution holds that belief because, they claim, counsel, in his effort to defend the attempted murder charge, unintentionally “provide[d] the jury with a basis for finding defendant not guilty of the assault charges.” Resp. at 54. Counsel’s utter failure to recognize that he had a defense to the assault charges and his conveyance to the jury of that belief by offering no defense to the assault charges in his summation gives lie to the suggestion that his actions were not harmful to Mr. Nesbitt. The fact that evidence existed in the record with which counsel could have argued for an acquittal of the first-degree assault charges but didn’t establishes his ineffectiveness, not the other way around. Cf. Resp. at 54 (claiming that counsel was effective because he provided “a basis for finding defendant not guilty of the assault charges” even though he did not “argue to the jurors that the evidence had not proven defendant’s guilt”); Resp. at 55 (claiming that counsel’s summation “although directed towards supporting counsel’s argument that defendant was not guilty of the attempt murder charge” was “germane to the first-degree charges”). -13- Under New York’s special “standard of meaningful representation” a reversal is warranted “whenever a defendant is deprived of a fair trial” due to the inadequacy of counsel, “even in the absence of a reasonable probability of a different outcome.” People v. Caban, 5 N.Y.3d 143, 155-56 (2005). Thus, the prosecution’s focus on “whether defendant was actually prejudiced because a different result would have followed,” Resp. at 54, is a misapplication of New York’s standard with “focuses on the ‘fairness of the process as a whole rather than its particular impact on the outcome of the case.’” Id. (quoting People v. Benevento, 91 N.Y.2d 708, 714 (1988)). Mr. Nesbitt was deprived of any semblance of a fair trial when his attorney gave up before hearing any evidence (A. 170: counsel announcing before trial he had “very little defense in this case”) and utterly failed to present to the jurors any defense to the top concurrent charges in the case. Counsel’s job was to defend Mr. Nesbitt. Instead, he agreed to having his client shackled (A. 23), detailed his client’s bad acts to the court (A. 25-26, 320), hardly participated in jury selection, Brief at 6-7, presented no opening statement (A. 186), did not cross examine most witnesses (A. 259, 280, 319), put on no defense case (A. 322), never even asked the jurors to acquit his client of the assault charges during summation (A. 329-42), deprived the jurors of the -14- opportunity to consider a lesser charge (A. 324-25, 328), and never presented any reason for the jurors to do anything but convict his client of the assault charges. Even if we accept the prosecution’s mistaken believe that counsel “had limited choices in terms of plausible defenses he could raise,” Resp. at 57, surely we can agree that counsel was obligated to raise some defense to the charges. The prosecution’s comparison of defense counsel’s abdication of his duty to defend the assault charges here to situations where defense counsel did not raise a frivolous claim, Resp. at 56-57 & nn.10-11, is unconvincing. This is not a situation where counsel did not request a charge to the jury to which he was not entitled, see People v. Caban, 5 N.Y.3d at 152, or where counsel did not offer plainly inadmissible hearsay, see People v. Stultz, 5 N.Y.3d 277, 287 (2004). See also People v. Feliciano, 17 N.Y.3d 14 (2011) (finding appellate counsel not ineffective for not claiming that trial counsel was ineffective when he did not raise a “novel” claim that would have required “an extension of or change in–not application of–existing law”). Here, counsel did not defend in any manner the top concurrent charges in the indictment, when a viable and potentially winning defense existed.2 People v. Evans, 16 N.Y.3d 571 (2011), cited by the prosecution, see2 Resp. at 56 n.10, is completely inapposite. There, as with the decision to submit any lesser-included-offense, counsel’s decision not to seek dismissal of a lesser offense could simply have been a proper strategic decision so as -15- This was not an case with just an isolated failing by counsel either. Despite the prosecution’s claim that “counsel provided meaningful and effective representation of defendant during every phase of the trial,” Resp. at 30, their extensive recitation of his actions, Resp. at 30-45, does not support that. Challenging his own client’s competency then withdrawing that challenge, Resp. at 31, did not take great skill. Not meeting with your client, but sending him four letters over the course of a year, Resp. at 31-32, does not bespeak effective communication. “[A]gree[ing]” that your client “needs to be shackled” (A. 23), but then “appris[ing the client] that if he did not wear the shackles in court, the trial would have to proceed in his absence,” Resp. at 32, is not great advocacy. Overstating your client’s criminal record (by discussing “robberies,” instead of the single robbery) and arguing the wrong legal standard during the Sandoval hearing, Resp. at 33 n.6, does not support the prosecution’s conclusion that counsel “persuaded the court,” Resp. at 33, when it issued the usual Sandoval compromise ruling. Asking next to no questions during the voir dire of prospective jurors because there was supposedly “little need for him to ask many more questions beyond what had already been covered by the court and the prosecutor” Resp. at 34, does not demonstrate competency. Nor does raising a to not force the jury to choose between conviction of the top charge and a total acquittal. -16- frivolous and losing argument against a clearly admissible photograph deserve the accolades of “zealous representation” that the prosecution heaps upon counsel. Resp. at 34-35. Hard pressed to find more to praise about counsel’s woeful performance throughout trial, the prosecution even applauds counsel for advising his client not to display his shackles to the jury. Resp. at 35. To be sure, counsel did offer a defense to the attempted murder charge. He did cross examine some of the witnesses on issues pertinent to that charge and did offer arguments in summation as to why Mr. Nesbitt was not guilt of that offense. See Resp. at 36-42. But as counsel himself recognized before trial, that limited defense would still “leave[] the assault in the first degree charge[s] which, unfortunately, [are] the same classification of crime . . . . as attempted murder” (A. 168). “Mr. Nesbitt is facing the same amount of time,” counsel recognized (A. 168), but did nothing to try to avoid that outcome. Indeed, counsel’s sullen performance at sentencing (during which he did not correct the prosecutor’s overstatement of Mr. Nesbitt’s record, but instead discussed how his client had threatened him and then defended his own inactions, while not offering a shred of mitigation evidence) served to emphasize that point. As even counsel appeared to expect, the court3 The prosecution’s terming counsel’s one-minute statement at3 sentencing (A. 403-04) “a very well-reasoned argument,” Resp. at 45, shows either how far the prosecution is willing to mischaracterize the record to -17- imposed the maximum possible sentence that Mr. Nesbitt could have received even had he been convicted of the attempted murder charge. New York’s “fairness” standard requires more. Mr. Nesbitt did not have a “fair trial” on the assault charges. With no defense offered, no argument made, no alternative provided, the jury had to convict him. Looking at “the fairness of the process as a whole,” People v. Benevento, 91 N.Y.2d at 714, and considering “the integrity of the judicial process,” id., these failings by counsel cannot be countenanced. This Court should continue to “guard[] with the utmost vigilance” the “cherished and valuable protection” afforded by the right to counsel. People v. Lopez, 16 N.Y.3d 375, 385 (2011). Here, counsel simply did not defend, at any point during the trial, the top concurrent counts of the indictment which led to Mr. Nesbitt’s incarceration. Under both the State and Federal standards, counsel provided ineffective assistance. IV. Counsel’s Ineffectiveness Is Fully Reviewable Given His Contemporaneous On-the-Record Explanations Contrary to the prosecution’s efforts to defer a decision on counsel’s ineffectiveness, see Resp. at 21-22, this is one of those circumstances where a C.P.L. § 440.10 motion is unnecessary to establish why counsel raised no defense. Here, support their claim or how little they expect of defense counsel. -18- counsel made a full and complete record, specifically directed to the appellate courts, as to why he would put on no defense. Counsel’s “record about a few things” (A. 157-58), included his explanation that due to what he perceived to be the “quite overwhelming” evidence in the case, he could not think up “any defense to the assault in the first degree” charges (A. 167, 168). Counsel explained that he was “in somewhat of a bind” because he could think up no defense “other than potentially he didn’t do it, which in my o[w]n mind, based on the facts and scientific proof in this case is just preposterous” (A. 169). Counsel explained that he would not be making an opening statement, would “have very little questioning for any of these witnesses,” and would offer “very little defense in this case” (A. 168, 169, 170). He made that record – even before the prosecution had offered one shred of evidence – in case he was later charged with “ineffective assistance” (A. 169). Counsel wanted this Court to know why, he believed, he was not “ineffective for not doing X, Y, and Z” (A. 169-70). Faced with those explicit statements by counsel on the record in this case, the prosecution’s claim that counsel needs to be given another “opportunity to fully explain the various decisions he made and actions he took during the trial,” Resp. at 21, rings hollow. Notably, both the majority and the dissent below recognized that the record was entirely sufficient to permit the claim to be reviewed on direct appeal (A. 8-9 (“the -19- record before us is sufficient, without the need for a CPL 440.10 motion, to determine whether counsel was effective”); A. 14 (“In this case, however, defendant’s trial counsel deliberately made a record ... [h]ence, the existing record is adequate for review of the ineffective assistance claim, as counsel chose to make his own record as to why he was virtually abandoning any defense to first-degree assault”). Even as regards counsel’s woeful lack of attention during jury selection and his failure to request the lesser-included charge of second-degree assault, the record is sufficiently clear. Counsel was not going to expend much effort and did not view any lesser-included offense as viable because, in his mistaken opinion, the “evidence in this case is quite overwhelming” and he did not “have any defense to the assault in the first degree” charges (A. 167, 168). He, therefore, “d[id]n’t have any lesser includeds in mind” (A. 324-25). In sum, the record is comprehensive as to counsel’s reasons. He could think up no defense whatsoever. His grossly mistaken belief that no defense existed, when legitimate, viable, and strong defenses to the assault charges existed establishes his ineffectiveness. Mr. Nesbitt, as with any criminal defendant, regardless of his conduct or the nature of the charges, had a constitutional right to be defended. He was not. -20- CONCLUSION FOR THE REASONS SET FORTH ABOVE AND IN THE MAIN BRIEF, MR. NESBITT WAS DEPRIVED OF THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND THE CONVICTION SHOULD BE SET ASIDE AND A NEW TRIAL ORDERED. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation David J. Klem Of Counsel July 9, 2012 -21- PRINTING SPECIFICATIONS STATEMENT 1. Processing System: WordPerfect x4. 2. Typeface: Courier New. 3. Point Size: 12 point text; 10 point footnotes. 4. Word Count: 4,695 words (excluding table of contents, table of authorities, and appendices). -22-