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. 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 April 16, 2012 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . 4 Mr. Nesbitt Presents with Possible Mental Health Issues.. . . . . . . . . . . . . . . . . . . . . . . . 4 Defense Counsel Agrees to the Court Shackling his Client and Invites the Court to Proceed Without his Client.. . . . . . . . . . . . . . . . . . . . . . 5 During Jury Selection, Defense Counsel Uses Just One Peremptory and Prepares the Jury for his Concession. . 6 Before Hearing Any Evidence, Defense Counsel Announces that the Case Is Hopeless and He Has No Defense. . . . 8 The People’s Case. . . . . . . . . . . . . . . . . . . 10 The Defense Puts on No Case. . . . . . . . . . . . . . 15 Counsel Declines the Court’s Invitation to Request a Lesser Included Offense. . . . . . . . . . . . . . . 16 Defense Counsel Concedes His Client’s Guilt During Summation. . . . . . . . . . . . . . . . . . . . . . . 17 The Charge and Verdict.. . . . . . . . . . . . . . . . 20 Sentencing.. . . . . . . . . . . . . . . . . . . . . . 21 Appellate Division Issues a Split Decision.. . . . . . 22 ARGUMENT 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.. . . . . . . . . 25 I. Counsel’s Concession as to Guilt Was Per Se Ineffective.. . . . . . . . . . . . . . . . . . . 27 A. An Attorney Cannot Concede Guilt on a Top Count of the Indictment Without Consent of his Client.. . . . . . . . . . . . . . . . . 27 B. Counsel Conceded Mr. Nesbitt’s Guilt.. . . . 32 C. Counsel’s Concession Was Not a Strategic Gambit.. . . . . . . . . . . . . . . . . . . 36 D. Mr. Nesbitt’s Conduct Did Not Permit Counsel to Make the Concession.. . . . . . . . . . . 38 II. Counsel’s Failure to Present a Viable Defense or Request a Lesser Included Offense Deprived Mr. Nesbitt of Effective Assistance.. . . . . . . . . 39 A. Counsel’s Performance Was Deficient In Failing To Present Any Defense When a Viable Defense Existed.. . . . . . . . . . . 40 B. Counsel’s Performance Was Otherwise Subpar.. 47 C. Counsel’s Deficient Performance Harmed Mr. Nesbitt. . . . . . . . . . . . . . . . . 52 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . 55 PRINTING SPECIFICATIONS STATEMENT.. . . . . . . . . . . . . 56 -ii- TABLE OF AUTHORITIES CASES Brookhart v. Janis, 384 U.S. 1 (1966).................. 29, 31 Cooke v. State, 977 A.2d 803 (Del. 2009)............... 30, 31 Faretta v. California, 422 U.S. 806 (1975)................. 28 Florida v. Nixon, 543 U.S. 175 (2004)...................... 37 Harding v. Davis, 878 F.2d 1341 (11 Cir. 1989). .......... 38th Jones v. Barnes, 463 U.S. 745 (1983)....................... 28 McMann v. Richardson, 397 U.S. 759 n.14 (1970)............. 40 People v. Adames, 52 A.D.3d 617 (2d Dep’t 2008)............ 45 People v. Aiken, 45 N.Y.2d 394 (1978)...................... 38 People v. Allen, 165 A.D.2d 786 (1 Dep’t 1990). .......... 46st People v. Baldi, 54 N.Y.2d 137 (1981).................. 40, 52 People v. Benevento, 91 N.Y.2d 708 (1998).............. 40, 52 People v. Bradburn, 110 A.D.2d 1065 (4 Dep’t 1985). ...... 37th People v. Caban, 5 N.Y.3d 143 (2005)................... 40, 52 People v. Castillo, 199 A.D.2d 276 (2d Dep’t 1993)......... 43 People v. Clyde, 18 N.Y.3d 145 (2011)...................... 48 People v. Colon, 90 N.Y.2d 824 (1997)...................... 28 People v. Cummings, 16 N.Y.3d 784 (2011)................... 52 People v. Horton, 9 A.D.3d 503 (3d Dep’t 2004)............. 42 People v. LaBree, 34 N.Y.2d 257 (1974)..................... 40 People v. Lane, 60 N.Y.2d 748 (1983)....................... 37 People v. Longtin, 92 N.Y.2d 640 (1998).................... 27 -iii- People v. Lopez, 16 N.Y.3d 375 (2011)...................... 53 People v. Lugo, 181 Misc.2d 811 (Sup. Ct. Kings Co. 1999).. 43 People v. Martinez, 257 A.D.2d 667 (2d Dep’t 1999)......... 46 People v. Matos, 107 A.D.2d 823 (2d Dep’t 1985)............ 45 People v. McKinnon, 15 N.Y.3d 311 (2010)............... 44, 54 People v. McLaughlin, 8 A.D.3d 146 (1 Dep’t 2004). ... 45, 46st People v. Nesbitt, 89 A.D.3d 447 (1 Dep’t 2011). .......... 1st People v. Petrovich, 87 N.Y.2d 961 (1996).............. 28, 29 People v. Robles, 173 A.D.2d 337 (1 Dep’t 1991). ......... 44st People v. Sandoval, 34 N.Y.2d 371 (1974)................... 49 People v. Sleasman, 24 A.D.3d 1041 (2d Dep’t 2005)......... 42 People v. Steinberg, 79 N.Y.2d 673 (1992).................. 47 People v. Stewart, 18 N.Y.3d 831 (2011)................ 45, 54 People v. Thomas, 244 A.D.2d 271 (1 Dep’t 1997). ......... 36st People v. Tran, 188 Misc.2d 717(N.Y. Sup. Ct. Queens Co. 2001), aff’d 308 A.D.2d 497 (2d Dep’t 2003)........... 46 People v. Tucker, 91 A.D.3d 1030 (3d Dep’t 2012)....... 41, 42 People v. White, 73 N.Y.2d 468 (1989).................. 28, 29 People v. Whyte, 47 A.D.3d 852 (2d Dep’t 2008)............. 43 Petrovich v. Leonardo, 229 F.3d 384 (2d Cir. 2000)......... 29 Powell v. Alabama, 287 U.S. 45 (1932)...................... 27 Sandstrom v. Montana, 442 U.S. 510 (1979).................. 47 State v Carter, 14 P.3d 1138 (Kan. 2000)................... 31 State v. Harbison, 337 S.E.2d 504 (N.C. 1985).............. 31 State v. Pilcher, 472 N.W.2d 327 (Minn. 1991).............. 31 -iv- Stouffer v. Reynolds, 168 F.3d 1155 (10 Cir. 1999). ...... 33th Strickland v. Washington, 466 U.S. 668 (1984).......... 40, 54 Torres v. State, 688 N.W.2d 569 (Minn. 2004)............... 35 United States v. Cronic, 466 U.S. 648 (1984)....... 27, 28, 39 United States v. Swanson, 943 F.2d 1070 (9 Cir. 1991). 30, 39th United States v. Williamson, 53 F.3d 1500 (10 Cir. 1995). 30th CONSTITUTIONS N.Y. Const., art. I, § 6................................... 40 U.S. Const., amend. VI..................................... 40 U.S. Const., amend. XIV.................................... 40 STATUTES C.P.L. § 440.10............................................ 22 C.P.L. § 450.90(1).......................................... 1 Penal Law § 10.00(10).................................. 41, 44 Penal Law § 10.00(13)...................................... 51 Penal Law § 70.05(3)(c).................................... 51 Penal Law § 120.00(1).................................. 50, 51 Penal Law § 120.05(2)...................................... 51 Penal Law § 120.10(1)................................... 1, 41 Penal Law § 120.10(2)........................... 1, 41, 44, 47 Penal Law § 270.25(2)(b)................................... 50 -v- COURT OF APPEALS STATE OF NEW YORK ----------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : : -against- : AKIEME NESBITT, : Defendant-Appellant. : ----------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Diane T. Renwick, Justice of the Appellate Division, granted on January 5, 2012 (A. 2),1 appeal is taken from an order of the Appellate Division, First Department, People v. Akieme Nesbitt, 89 A.D.3d 447 (1 Dep’tst 2011) (A. 3-19). That order, entered November 3, 2011, affirmed with opinion a judgment of the Supreme Court, New York County, which convicted appellant, after a jury trial, of two counts of assault in the first degree (Penal Law §§ 120.10(1), (2)) and sentenced him to concurrent determinate terms of 25 years’ incarceration and five years of post-release supervision (Carol Berkman, J., at trial and sentence). This Court has jurisdiction, pursuant to New York Criminal Procedure Law Section 450.90(1), to entertain this appeal and to review the questions raised. On February 16, 2012, the Court Citations to the appendix are in parentheses preceded by “A.”1 granted appellant’s motion to assign Robert S. Dean, Center for Appellate Litigation, as counsel on appeal. No application for a stay of execution of judgment has been made and appellant is currently incarcerated pursuant to the judgment herein appealed. QUESTION PRESENTED Whether trial counsel was ineffective by failing to challenge the People’s proof, conceding his client’s guilt, presenting no defense whatsoever, and failing to request a charge on or argue in favor of an available lesser included offense? SUMMARY OF ARGUMENT Akieme Nesbitt was tried, convicted, and sentenced to 25 years’ incarceration for slashing his 19-year-old friend Anthony Johnson after they had an argument. Mr. Nesbitt’s trial counsel did not defend the assault charges in any way. He did not do so because, he claimed, he could think up no defense. Counsel made that determination after numerous conflicts with his possibly mentally-ill client (including being spit upon). Counsel even announced that the evidence was overwhelming and any defense hopeless prior to trial beginning and any evidence being presented. Mr. Nesbitt, however, wanted to contest his guilt and had repeatedly refused to consider a plea. With no defense he could think of to offer to the assault charges, counsel did little during the trial. He hardly participated in jury selection, using just one peremptory -2- challenge during the entirety of voir dire. He made no opening statement. He did not cross examine most of the People’s witnesses. He put on no defense witnesses. And, then, in summation he conceded Mr. Nesbitt’s guilt on the first-degree assault charges. Admittedly, he argued against the attempted murder charge, but given that the two first-degree assault charges were of the same degree (class B violent felony offenses) and carried the same sentencing exposure, defending one of the three charges, even successfully, could not help Mr. Nesbitt. Counsel had a defense to offer. As all of the justices in the Appellate Division found (both the three justices in the majority and the two justices in the dissent), counsel could have and should have argued that the evidence did not establish the injury required for first-degree assault or that Mr. Nesbitt necessarily had the mens rea for first-degree assault. Moreover, counsel could have and should have requested that the court charge the jury with the lesser-included second-degree assault charge – a charge to which Mr. Nesbitt was entitled. Counsel’s failure to defend Mr. Nesbitt as to the first- degree assault charges amounted to an improper concession and, therefore, a deprivation of Mr. Nesbitt’s rights to effective counsel and a fair trial. In addition, counsel’s decision, prior to the start of the trial, not to defend the assault -3- charges both worked an unfairness upon Mr. Nesbitt and otherwise harmed him. STATEMENT OF FACTS Mr. Nesbitt Presents with Possible Mental Health Issues On September 29, 2005, within two days of the incident and his arrest, the criminal court judge ordered Mr. Nesbitt to undergo a 730 examination to determine his competency. In October 2005, the two examining doctors declared Mr. Nesbitt unfit and on November 30, 2005, he was committed to the custody of the Office of Mental Hygiene. Although Mr. Nesbitt’s competency was found restored soon thereafter, by March 2006 he had been sent for another competency examination. Declared unfit again in April, a hearing on competency was held on May 1 and May 5, 2006. Although the court declared Mr. Nesbitt fit on May 5, 2006, subsequent doctors’ reports from May 9, July 27, August 24, and October 12, 2006, all found him unfit. In 2007, Mr. Nesbitt had additional periods of confinement in a mental institution and additional competing declarations of fitness and unfitness. Finally, two-and-a-half years later, all doctors, including the expert hired by the defense, concluded that Mr. Nesbitt was fit to proceed. See Court File: 730 Reports, worksheets, and motion papers. -4- Defense Counsel Agrees to the Court Shackling His Client and Invites the Court to Proceed Without his Client Trial commenced on July 8, 2008, without Mr. Nesbitt (A. 21-22). The court recounted part of the tortured history regarding Mr. Nesbitt’s competency, but found him “unquestionably fit at this point” (A. 23). The court also recounted Mr. Nesbitt’s past “threatening behavior” including profanities directed at the court (A. 22). That behavior allegedly included “a number of specific instances of threatening behavior to counsel as well” (A. 23). Based on that prior conduct, the court put on the record that “we [have] agree[d] he needs to be shackled for the course of this Trial” (A. 23). The court noted, however, that Mr. Nesbitt had refused to be shackled, even upon warning that trial would proceed without him being present (A. 23-24). Defense counsel, Bryan Konoski, Esq., then reminded the court that it had previously “give[n] Mr. Nesbitt Parker Warnings,” “[a]nd so, I think he has been made aware that if he’s not present for the proceedings for the Trial, that it could proceed in his absence” (A. 24). Counsel, while not seeking to be relieved or any other relief, recounted for the record how when he had gone into the pens to talk to Mr. Nesbitt that day, Mr. Nesbitt “actually spit directly in my face” and “threatened to kill me or have me killed” (A. 25-26). Counsel noted that prior to the -5- spitting, he had told Mr. Nesbitt that if he refused to come out in shackles, trial would proceed without him (A. 26). The court proceeded to have a Sandoval hearing without Mr. Nesbitt (A. 26-28).2 During Jury Selection, Defense Counsel Uses Just One Peremptory and Prepares the Jury for his Concession Defense counsel, armed with 15 peremptory challenges as well as two peremptories for each of the three alternate jurors selected, used just a single peremptory challenge (A. 112). The one person struck was a police officer, whose friends and cousins were on the force and whose uncle had been murdered (A. 68-70). Amongst those prospective jurors not challenged by defense counsel were: • A deputy managing director of a conference company whose sister was a probation officer and whose father was an FBI agent and CIA operative (A. 44-45). He sat as the foreperson of the jury (A. 112). At the Sandoval hearing, defense counsel argued that none of the2 prior convictions the prosecutor sought to bring out bore “any relevance on the intent or motive or anything related to this case” (A. 27). He argued that the specific facts of the prior convictions with which the prosecutor sought to cast doubts on Mr. Nesbitt’s credibility should he testify were not properly admitted because the facts of those cases were different from the facts of the instant case (A. 27-28). For example, counsel argued that Mr. Nesbitt’s single prior attempted robbery conviction – which counsel termed “the robberies” – “don’t bear any relevance to this case because this is just a direct assault. There’s no allegation of theft or any intent to thieve anything. So, I would object to any of those being asked about during cross -examination” (A. 28). -6- • A hedge fund systems manager, who moved from Westchester to the Upper East Side and whose brother was a police officer. He did “[n]ot really” have a problem with being open minded about police testimony (A. 47-48). During his admittedly “brief” voir dire of the prospective jurors (A. 105), counsel discussed a “hypothetical” in which a defendant was “charged with different types of crimes” (A. 106). In his scenario, “the Prosecution can prove each and every element of one of those crimes, but cannot prove each and every element of . . . the second crime” (A. 106). Would, counsel inquired, the jurors be willing to “find guilty” on the offense that “was proven beyond a reasonable doubt” but find not guilty on the second offense (A. 106-07). He continued to press to make sure that there was not “anybody that has a problem finding not guilty on one, but guilty on the other” (A. 108). “If, let’s say, on closing I argue to you that one crime may have been proven, but another was not. Is there anybody going to hold that against me?” (A. 109). Upon asking those few questions, counsel was done (A. 111). In the second round, counsel’s voir dire of the jurors was even shorter. He simply asked whether the prospective jurors could all assure him that they would hold the prosecution to its burden (A. 146-47). -7- Before Hearing Any Evidence, Defense Counsel Announces that the Case Is Hopeless and He Has No Defense The day the case resumed after jury selection, Mr. Nesbitt was present (A. 157-58). Defense counsel used that opportunity to “make a record about a few things” (A. 157-58). He first noted that Mr. Nesbitt was not interested in any plea offer, whether it be the offer of 20 years the People had formally extended or even 15 years that the People indicated “they might be willing” to offer (A. 158). Mr. Konoski noted that he had sent “four opinion letters to Mr. Nesbitt,” but that Mr. Nesbitt “never responded to me at all . . . I never heard from him regarding the offers” (A. 158). Mr. Konoski had not had any discussions directly with Mr. Nesbitt because he “is not a person who is ever calm enough to discuss a case with” (A. 168). Mr. Nesbitt responded by reminding the court that he had moved to get Mr. Konoski relieved (A. 158-59). Mr. Nesbitt insisted that Mr. Konoski had not given him the discovery material and had not “do[ne] nothing since day one” (A. 159, 165). He had reported Mr. Konoski “to the Bar,” and he wanted the court to appoint him a new lawyer (A. 165). Mr. Nesbitt insisted that he was not “going to cop out to 20 years” and that he was “not copping out to this” (A. 160; see also A. 164-65). Mr. Nesbitt continued to “object to this whole -8- proceeding” and insisted that Mr. Konoski was “not my lawyer” (A. 161-62; see also A. 165).3 Mr. Konoski objected to his client “continuously interrupt[ing] me” while he was trying to make a record (A. 166). Despite being interrupted, disparaged, and spit upon, Mr. Konoski claimed he was “not holding that against Mr. Nesbitt” and believed he could “fully represent him without any problems whatsoever” (A. 167). Although trial had yet to being and no evidence had yet been presented, counsel reported to the court that the prosecution’s “evidence in this case is quite overwhelming” (A. 167). Mr. Konoski would be offering no defense, except a claim that Mr. Nesbitt was not guilty of attempted murder because he did not have any intent to kill (A. 167-68). Counsel recognized that would still “leave[] the assault in the first degree charge[s] which, unfortunately, [are] the same classification of crime. It’s a B Felony just the same as attempted murder” (A. 168). “Therefore, Mr. Nesbitt is facing the same amount of time . . . which puts us in somewhat of a bind” (A. 168). He suggested no way out of the bind. Mr. Nesbitt also informed the court that he wanted “the jurors to see3 [him] in handcuffs and shackles” (A. 159; see also A. 163). Counsel advised against it (A. 164). After the complainant’s testimony, Mr. Nesbitt stood before the jurors exposing his shackles and then left the courtroom (A. 239- 41). Mr. Nesbitt was not present for the remainder of the trial (A. 261-62, 326). -9- Not yet having heard the prosecution’s proof, Mr. Konoski announced he did not “have any defense to the assault in the first degree” (A. 168). He could think of no possible defense to those counts “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). He would, therefore, not be making an opening statement (A. 168), would “have very little questioning for any of these witnesses” (A. 169), and would offer “very little defense in this case” (A. 170). Mr. Konoski put that all on the record, even before any evidence had been offered, because he was “concerned that an Appellate Lawyer is going to try to say ineffective assistance,” and he “d[id]n’t want an Appellate Lawyer to turn around and say this counsel was ineffective for not doing X, Y, and Z” (A. 169-70). With that record made, the court directed that the trial begin (A. 170-71). After the court’s preliminary remarks (A. 172-78) and the prosecutor’s opening (A. 178-86), Mr. Konoski “waive[d his] Opening” (A. 186). The People’s Case Anthony Johnson, 22 years old, testified that, in 2005, he had lived at 90 Pitt Street in Manhattan with his mother -10- and 11 siblings, including Yvette Johnson (A. 187-89, 243-44). In September 2005, Mr. Johnson met Mr. Nesbitt and they became friends (A. 190-91). Mr. Johnson invited Mr. Nesbitt, who had no place to stay, to sleep in the second bed in his room or on the couch in the livingroom (A. 192, 244). Mr. Johnson and Mr. Nesbitt ate together, played ball together, and hung out together (A. 192-93, 244). Although Mr. Nesbitt did not contribute money to the family, he did some cooking and cleaning around the apartment (A. 193, 244). On September 27, 2005, Mr. Nesbitt returned to the apartment in the afternoon and reported to Mr. Johnson that he had applied for a job at the Pathmark that was opening in the area (A. 195-96, 246). Mr. Nesbitt encouraged Mr. Johnson to apply, but an argument ensued when Mr. Johnson said he had too much pride to work there (A. 196-97). That argument escalated when Mr. Johnson refused to lend Mr. Nesbitt a quarter to make a phone call (A. 197, 246-47). Mr. Johnson eventually directed Mr. Nesbitt to get his belongings and leave the apartment (A. 198, 248). Mr. Nesbitt refused (A. 198, 248). Mr. Johnson then left to get his uncles to assist him in removing Mr. Nesbitt from the apartment (A. 199). According to Yvette Johnson, Mr. Nesbitt said that he was “going to show this Nigger” “how we from Brooklyn do it” and asked where his -11- “blade” was (A. 249-51). She later saw him with a silver flip knife that had three scalpel blades fused together (A. 253).4 As Mr. Johnson waited in the hallway for the elevator upstairs to his uncles’ apartment, Mr. Nesbitt walked around Mr. Johnson as if to exit through the lobby, and then grabbed Mr. Johnson around the neck (A. 201, 252-53). Mr. Nesbitt pulled Mr. Johnson to the ground, tried to kick him, and “tussled” with him once Mr. Johnson regained his footing (A. 202-03). Mr. Johnson fell once more; when he regained his footing, Mr. Nesbitt cut him on his face (A. 202, 254). Mr. Johnson never saw the knife, but he saw blood coming down his chest (A. 202, 204). Mr. Johnson ran into his apartment and locked the door (A. 213, 255). Mr. Nesbitt tried to pursue, but could not get into the apartment (A. 213). Upon seeing the cuts on his forehead and right forearm, Mr. Johnson or a friend called an ambulance (A. 213-19, 257). Through a window, he spotted Mr. Nesbitt jogging up the block (A. 216, 234). The ambulance arrived five minutes later (A. 235). Mr. Johnson claimed the EMTs stitched him up a bit before the drive to the hospital (A. 222, 236). Once at the hospital, Mr. Johnson was not treated for over an hour (A. 224, 236). Mr. Konoski did not cross examine Ms. Johnson (A. 259).4 -12- Meanwhile, Police Office Eworth Pryce responded to the apartment (A. 307-08). He and his partner took Yvette Johnson in their patrol car on a canvass of the neighborhood (A. 308). They spotted Mr. Nesbitt a block away, sitting outside a liquor store drinking a beer (A. 258, 308). Office Pryce arrested him (A. 259, 309). Mr. Nesbitt had no weapon on him and none was found in the area (A. 309). Blood on his sneakers and left pant leg matched Mr. Johnson’s DNA (A. 310- 11, 317-19; Criminalist Sara Phillips: A. 272-79 ).5 After the hour wait at Bellevue, Mr. Johnson received stitches on his face, back, and neck (A. 225). The stitches didn’t hurt, but he had a bad headache and his face was swollen for two weeks (A. 224). The stitches were removed two-and-a-half weeks later (A. 229). At the time of trial, Mr. Johnson reported that “everything is fine now, just except my arm is – I kind of feel it but I don’t. That’s basically it.” (A. 230). He elaborated by explaining that about five inches of his arm would get numb sometimes and have no feeling (A. 230). The prosecution introduced a photo taken at Bellevue Hospital one hour after the incident showing the cuts, photos taken one week after the incident showing the sutures, and Mr. Konoski did not cross examine either Officer Pryce or Ms.5 Phillips (A. 280, 319). -13- photos taken the day before trial showing lingering marks (A. 220-21, 225-29, 231-33; People’s Exhibits 1-10, 25-34). Dr. Odette Hall reviewed the medical records from the Emergency Room at Bellevue Hospital and testified to what he believed those records revealed (A. 287). Dr. Hall, an employee of the Office of the Chief Medical Examiner who specialized in autopsies, was not “familiar with Emergency Medicine” (A. 287, 296). The medical records showed that Mr. Johnson had suffered “superficial lacerations to the right neck, back of neck, [and] upper back” (A. 298). The term “superficial” “impl[ied]” to Dr. Hall “that the wounds did not go deep” (A. 294). The wounds to the forehead and arm were deeper, though still described, at times, as superficial (A. 296-99). The wounds were consistent with having been caused by a scalpel (A. 292). The wound on the neck was one inch away from the right carotid artery, which, Dr. Hall opined, “had it been” cut could have been life threatening (A. 290-91). It had not been cut (A. 293). The injury to the right forearm “could have” caused permanent nerve damage (A. 291-92). He did not opine as to whether it actually did (A. 291-92). The doctor alternatively opined that the wounds “would cause permanent scarring” (A. 292) or “could create scars” (A. 300). He did not describe the nature or extent of the scarring that would -14- or could occur. Even “superficial lacerations,” Dr. Hall testified, could bleed and scar (A. 300). The entire medical treatment that Mr. Johnson received was the “clean[ing], sutur[ing], and bandag[ing]” of the wounds (A. 291). After the wounds had been cleaned, stitched, and bandaged, Mr. Johnson was released (A. 295). No referral was made for additional treatment. No testimony was adduced as to any further treatments at Bellevue Hospital or elsewhere. The Defense Puts on No Case Near the end of the prosecution’s case, the court noted that it had received a report that Mr. Nesbitt was pacing in his cell and crying hysterically. The Corrections Officers wanted to take him to see a psychologist, but Mr. Nesbitt refused. The officers thought they might use force to take him (A. 301). Justice Berkman termed it “our latest performance” (A. 301). Counsel then “put on the record” what had occurred: “when I went up again to speak to him and asked him to come back down, I asked him if he would be testifying. He said ‘No’ and threatened to make his life’s mission to kill me, and spit on my forehead again” (A. 319-20). To ensure that “the record” was clear, Mr. Konoski repeated that he “did get spit in the -15- face. I did ask him again [about testifying] and I got spit on” (A. 320). Justice Berkman believed that Mr. Nesbitt had, therefore, “forfeited his Right to come in here and testify,” but in “an excess of concern for his Constitutional Rights,” directed a Court Officer to speak with Mr. Nesbitt (A. 320- 21). The Court Officer reported that he had told Mr. Nesbitt that “this was his last chance and he refused” (A. 321). The defense rested without putting on any witnesses (A. 322). Counsel Declines the Court’s Invitation to Request a Lesser Included Offense Upon resting, counsel moved to dismiss the attempted murder charge because the People had failed to prove that Mr. Nesbitt had a conscious intent or purpose to kill Mr. Johnson (A. 323-24). Counsel admitted that there was “possibly the intent to cause serious injury; but murder, I don’t think, the People have proven that” (A. 324). The court rejected that argument, ruling that intent is an issue “uniquely . . . for the jury to determine” (A. 324). The court then asked counsel whether there was “a request for any lesser included[ offenses]?” (A. 324). Mr. Konoski -16- responded: Not at this time, Judge. But I would ask to give me until Monday to take another look at the file just to see. But my feeling right now is, no, there isn’t. . . . I don’t have any lesser includeds in mind at this point, other than maybe an assault, third degree charge. I mean, I just really don’t have anything off the top of my head. You’ll have to give me a little bit of time to think about it. But my feeling is probably not (A. 324-25). The court invited Mr. Konoski to try to “think of something by the end of the day” (A. 325). Mr. Konoski would not be discussing the issue with Mr. Nesbitt because Mr. Konoski “refus[ed] to go back up to speak to him again . . . . I’ve been spit on twice. I’m not doing it” (A. 325). When court next convened, counsel confirmed that he had “no requests for lesser includeds” (A. 328). Defense Counsel Concedes His Client’s Guilt During Summation In beginning his summation, Mr. Konoski reminded the jury of what he had discussed during voir dire – the hypothetical whereby the jury promised to consider each count separately and return a verdict of guilty on one charge and not guilty on another if the evidence supported that (A. 329). “I think,” Mr. Konoski stated, “we can [now] make a little bit more sense of [the hypothetical]” (A. 329). He noted that there were three charges, each with different elements (A. 329). -17- “[D]uring this Closing Argument, ladies and gentlemen, I’m going to leave your function [sic] to the assault charges” (A. 329). The verdict on those charges is “up to you” (A. 330). Mr. Konoski was going “to specifically talk to you about the first charge which is attempted murder in the second degree” (A. 330). For that charge, Mr. Konoski, argued “[t]he elements are not there” and so, “on that particular charge, I’m going to ask that you actually check off the box that says ‘Not Guilty’” (A. 330). For the balance of his summation, Mr. Konoski urged the jurors to find that Mr. Nesbitt did not have the intent to kill Mr. Johnson nor did he come dangerously close to doing so (A. 331-42). In so arguing, Mr. Konoski assured the jurors, he was “certainly not [making] light of the injuries that were sustained. . . . [W]hen you use a scalpel during a fight that’s [] serious. But there are charges for that. And if you find that the elements of those charges are made, then you find guilty. . . . But the charges that relate to scalpeling somebody and causing disfigurement or scarring or causing serious physical injury are related to the assault charges, not the attempted murder charge” (A. 333). Mr. Konoski pointed out that the photographs the prosecution admitted were not “pretty” and that the wounds “can result in scarring. But that’s the assault charges. That’s not the attempted murder -18- charge[]” (A. 334). “Scarring?,” counsel inquired, “that’s up to you” (A. 336). In concluding, Mr. Konoski urged a not guilty verdict on the attempted murder charge, but made no such request as to the assault charges: “[W]hatever you do, when you go back into the jury room, whatever you do as to those assault charges, I leave that up to you. You saw the evidence. You heard the evidence” (A. 340). “If you find that there was enough for assault, find guilty” (A. 341). “I’m sure whatever your decision is, it will be the right decision” (A. 341). In contrast, “[t]here’s only one decision you can make on attempted murder, and that’s clear on the evidence, and it’s not guilty. Period. Make your decision on the rest. I’m sure whatever it is, it will be the right decision. And I ask you to find Mr. Nesbitt not guilty [on the attempted murder charge], and make the right decision as to the other charges. Thank you” (A. 342). In response, the prosecutor noted that defense counsel “hasn’t really touched very much on the assault in the first degree charges” (A. 343). The prosecutor did “want to go through those charges and talk about why Mr. Nesbitt [was] guilty of assault in the first degree in terms of both of those counts” (A. 344). The prosecutor, without objection, maintained that “there’s no question here that the defendant intended to cause serious physical injury to Anthony Johnson” -19- (A. 344), and “of course, that he did, in fact, seriously physically injure Anthony Johnson” (A. 345). “We [also] know,” the prosecutor continued, “that the defendant, Mr. Nesbitt, intended to seriously and permanently disfigure Anthony Johnson. . . . There’s no question but that he seriously and permanently disfigured him” (A. 345-46). As for the attempted murder count, the prosecutor also maintained that was established by the evidence (A. 349-55). In conclusion, the prosecutor reminded the jurors, without objection, that “[t]he Defense even concedes the Assault 1 counts” (A. 365). The Charge and Verdict The court charged the jurors on attempted murder and two counts of first-degree assault (A. 367-88). The first of the assault charges required that the People prove beyond a reasonable doubt that Mr. Nesbitt used a dangerous instrument to cause serious physical injury and that he specifically intended to cause serious physical injury (A. 383-84). Serious physical injury was defined as the “impairment of a person’s physical condition which creates a substantial risk of death, or which causes death, or serious and protected disfigurement, or protracted impairment of the function of any bodily organ” (A. 383). The other assault charge required that the People prove beyond a reasonable doubt that Mr. -20- Nesbitt “seriously and permanently disfigured Anthony Johnson, or destroyed, amputated, or disabled permanently a member or organ of Anthony Johnson’s body. And the People’s theory is serious and permanent disfigurement” (A. 385). The People also had to prove that Mr. Nesbitt had the specific intent “to disfigure Anthony Johnson seriously and permanently” (A. 385). During deliberations, the jurors sent out a number of notes, including one seeking the definition of intent and the difference between intent to assault and intent to kill (A. 389). Eventually, the court accepted a partial verdict finding Mr. Nesbitt guilty of both assault counts (A. 393-94). A mistrial was declared on the attempted murder count (A. 395); that count was later dismissed. Sentencing At sentencing, the prosecutor opted not to seek discretionary persistent felony status “[a]fter conversations with supervisors of the Appeals Bureau” (A. 401). Instead,6 the prosecution requested the maximum possible term of 25 Mr. Nesbitt admitted that he had been convicted of the violent felony6 of attempted second-degree robbery in 1998 (A. 401-02). Although the sentencing minutes do not reflect any other convictions, a review of the Presentence Report and the Sandoval minutes reveal that Mr. Nesbitt had one other prior felony conviction (a 2000 conviction for attempted second-degree assault), one prior misdemeanor conviction, and a Youthful Offender adjudication (from 1998 for third-degree burglary) (A. 26). Defense counsel did not correct the prosecutor’s references to Mr. Nesbitt’s “many felony convictions in the past” (A. 402). -21- years’ incarceration, relying in part on defense counsel’s reports of Mr. Nesbitt’s behavior (A. 401-03). Mr. Konoski then spoke “even though Mr. Nesbitt was threatening towards me, even though he had in fact spit on me on two occasions” (A. 403). Mr. Konoski announced that he had “forgiven” Mr. Nesbitt and “believe[d]” he had advocated “in an effective manner for Mr. Nesbitt” (A. 403). As for advocating for a lower sentence, Mr. Konoski merely asked the court “to be more reasonable in the sentence that Mr. Nesbitt will get” and “for less than the maximum” (A. 404). The court imposed the maximum possible sentence of 25 years’ incarceration with five years of post release supervision (A. 404-05). Appellate Division Issues a Split Decision The Appellate Division split three to two in favor of affirming the conviction. All five justices agreed that given Mr. Konoski’s purported explanation for his action or inaction on the record, the ineffective assistance of counsel claim could properly be raised and reviewed on direct appeal (A. 8-9 (majority holding that “the record before us is sufficient, without the need for a CPL 440.10 motion, to determine whether counsel was effective”); A. 14 (dissent finding that “the existing record is adequate for review of the ineffective assistance claim, as counsel chose to make his own record as -22- to why he was virtually abandoning any defense to first-degree assault”). All five Justices also agreed that Mr. Konoski’s performance was deficient (A. 11 (majority recognizing that “defense counsel might have made a colorable argument to the jury that the People did not meet the elements of first degree assault”); A. 17 (dissent finding that “there was a sound basis for counsel to argue that the victim did not suffer the requisite ‘serious physical injury’ or ‘serious disfigurement’”); A. 17-18 (dissent noting that “[d]efendant’s counsel reasonably should have defended against the first-degree assault charges, and should have at least requested submission of second-degree assault as a lesser included offense”). The dispute between the majority and the dissent was about the degree to which Mr. Nesbitt was harmed or prejudiced by counsel’s failings. The majority found it “unlikely that, had counsel made the arguments advanced by the defendant now, the outcome would have been different” (A. 11). As for New York’s fairness standard, the majority concluded that Mr. Nesbitt did not “suffer[] a fundamental unfairness by counsel’s decision not to argue more vociferously for an acquittal on the assault charges” (A. 12). Notably, the majority insisted that “[a]lthough counsel did not explicitly argue to the jury they should find defendant not guilty on [the assault] charges, his comments were not a concession of -23- guilt” (A. 11). The dissent, in contrast, concluded that Mr. Konoski’s remarks and actions “essentially conceded [Mr. Nesbitt’s] guilt” (A. 14). Not only had “counsel’s failure to make any arguments against the first-degree assault counts, and his failure to request second-degree assault as a lesser included offense, compromised defendant’s right to a fair trial and deprived him of meaningful representation,” but that “defendant has also established a reasonable probability that the outcome at trial would have been different but for his counsel’s errors” (A. 18-19). -24- ARGUMENT 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. Mr. Nesbitt was quite clear in his desire to exercise his constitutional right to trial and not to plead guilty. Despite that, his attorney conceded his guilt on the two first-degree assault charges – charges that were of the same level of seriousness as the attempted murder charge and that brought the same sentencing exposure. Not only did Mr. Konoski present and develop no defense to those two top charges, he invited the jury to convict his client. Counsel made the decision not to defend the assault charges prior to any evidence being presented and prior to having heard from any witness. There was simply no need to do that. Counsel could have requested the lesser included offense of second-degree assault and should have argued that Mr. Nesbitt neither intended to cause serious physical injury or permanent disfigurement nor did he in fact cause such injuries. Instead, counsel asked that the jury convict his client of charges that had the exact same sentencing exposure as the charge he defended. In fact, Mr. Nesbitt received a 25 year sentence on each of the conceded counts, which was the longest possible sentence he -25- could have received even had he been convicted of every charge. Defense counsel was ineffective. First, counsel could not permissibly concede guilt on the top counts of the indictment without his client’s consent. By conceding guilt, counsel denied his client the right to a trial and rendered the verdict inherently unreliable. The effect of counsel’s concession was essentially an unknowing and involuntary plea by Mr. Nesbitt. Second, by entirely failing to present a viable defense when one existed and by failing to request a viable lesser included offense, counsel’s performance was deficient. He did not subject the prosecution’s case to adversarial testing, hardly participated in jury selection, gave no opening statement, did not cross examine most witnesses, repeatedly spoke out against his client, and invited the guilty verdict. Counsel determined his course of action before hearing any evidence and while knowing that his client sought to contest his guilt. Counsel’s performance was not “meaningful” under New York’s standard and worked an unfairness upon Mr. Nesbitt. In addition, counsel’s performance prejudiced Mr. Nesbitt. For all of those reasons, the conviction must be reversed and a new trial ordered. -26- I. Counsel’s Concession as to Guilt Was Per Se Ineffective Putting aside for the moment the issue of whether counsel was ineffective in failing to present a viable defense in this case, what counsel could not do, regardless of the viability of any defense, was to concede his client’s guilt. The decision on whether to mount a defense to the top count in the indictment is, as with the decision to plead guilty, a decision reserved for the defendant. Mr. Nesbitt turned down plea offers and sought to contest his guilt; Mr. Konoski, therefore, could not properly concede his client’s guilt to the first-degree assault charges without hope of any tactical gain and without his client’s consent. A. An Attorney Cannot Concede Guilt on a Top Count of the Indictment Without Consent of his Client Defense counsel, appointed by the court to represent an indigent defendant, is duty bound to defend the case. See Powell v. Alabama, 287 U.S. 45, 73 (1932). Counsel “act[s] in the role of an advocate,” “to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 (1984). Counsel must be “singlemindedly devoted to the client’s best interests.” People v. Longtin, 92 N.Y.2d 640, 644 (1998). Counsel is per se ineffective if he “entirely fails to subject the prosecution’s case to meaningful adversarial testing” thus -27- making the “adversary process itself presumptively unreliable.” United States v. Cronic, 466 U.S. at 659. That devotion to the client requires that counsel leave to a defendant certain decisions that due to their consequences are too significant to the defendant to be made by counsel. See Faretta v. California, 422 U.S. 806, 819-20 (1975). A defendant retains the “ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify . . . , [and] take an appeal.” Jones v. Barnes, 463 U.S. 745, 751 (1983); see People v. Colon, 90 N.Y.2d 824, 825-26 (1997); People v. White, 73 N.Y.2d 468, 478 (1989); see also N.Y.S. Rules of Professional Conduct, Rule 1.2(a) (“a lawyer shall abide by a client’s decisions concerning the objectives of representation . . . . [and] abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify”). Decisions that could be determinative of the verdict so impact a defendant’s fate that they are necessarily entrusted to the defendant to make. For example, reserved for the defendant’s exclusive decision-making is whether to request the affirmative defense of extreme emotional disturbance. See People v. Petrovich, 87 N.Y.2d 961 (1996). “[T]he submission of the extreme emotional disturbance defense . . . could -28- indeed be determinative of the verdict” and, thus, was “not unlike” the other decisions reserved for the defendant. Id. at 963; see also Petrovich v. Leonardo, 229 F.3d 384 (2d Cir. 2000) (“The decision to assert an affirmative defense is akin to other, fundamental trial decisions, such as the decision to plead to a lesser charge or to assert a plea of insanity”). The decision to concede guilt as to the highest count of the indictment, where the defendant’s sentencing exposure remains the same and where counsel seeks no tactical advantage, is a decision that must similarly be reserved for the defendant. As with the decision to plead guilty, see People v. White, 73 N.Y.2d at 478, and the decision to submit an affirmative defense that lowers the degree of offense, see People v. Petrovich, 87 N.Y.2d at 966, the decision not to mount any challenge at trial is reserved for the defendant because such a decision is determinative of the outcome of the case. See Brookhart v. Janis, 384 U.S. 1, 7 (1966) (finding that counsel’s agreement to hold a prima facie trial, in which the defense would not cross-examine witnesses or present any evidence, was “the equivalent of a guilty plea” and an improper “waive[r of] his client’s constitutional right to plead not guilty”). Simply put, counsel is not free to unilaterally concede guilt to a count in the indictment which does not lessen the defendant’s sentencing exposure or otherwise result in a tactical advantage. -29- A concession of guilt by the lawyer renders the results of the trial unreliable. As recognized in United States v. Swanson, 943 F.2d 1070 (9 Cir. 1991), “[a] lawyer who informsth the jury that it is his view of the evidence that there is no reasonable doubt regarding the only factual issues that are in dispute has utterly failed to ‘subject the prosecution’s case to meaningful adversarial testing’” and has, per se, provided ineffective assistance. Id. at 1074 (internal citations omitted); see also United States v. Williamson, 53 F.3d 1500, 1511 (10 Cir. 1995) (“the admission by counsel of histh client’s guilt to the jury, represents a paradigmatic example of the sort of breakdown in the adversarial process that triggers a presumption of prejudice”). The dangers of permitting counsel to concede the defendant’s guilt without consent of the client have been recognized by courts throughout the nation. The Delaware Supreme Court’s decision’s in Cooke v. State, 977 A.2d 803 (Del. 2009), is illustrative. In that capital case, counsel pursued a “guilty but mentally ill” strategy over the desires of the defendant. The court found that strategy wholly improper: First, Cook did not have the “assistance” of counsel in pursuing his chosen objective for the trial–obtaining a not guilty verdict. Second, Cooke was denied the benefit of the reasonable doubt standard and meaningful adversarial testing of the prosecution’s case. -30- Consequently, Cooke’s fundamental right to enter a plea of not guilty was effectively negated by the conflicting objective of his defense attorneys to have the jury find him guilty but mentally impaired. Id. at 843. The court also found that by conceding guilt, counsel had negated the defendant’s right to testify in his own defense, see id. at 843-44, and had deprived the defendant’s of the right to an impartial jury, see id. at 845; see also State v. Pilcher, 472 N.W.2d 327, 337 (Minn. 1991) (“The decision whether or not to admit guilt at trial belongs to the defendant, and a new trial will be granted where defense counsel, explicitly or implicitly, admits a defendant’s guilt without permission or acquiescence.”); State v. Harbison, 337 S.E.2d 504, 507 (N.C. 1985) (“When counsel admits his client’s guilt without first obtaining the client’s consent, the client’s rights to a fair trial and to put the State to the burden of proof are completely swept away. The practical effect is the same as if counsel had entered a plea of guilty without the client’s consent. Counsel in such situations denies the client’s right to have the issue of guilt or innocence decided by a jury.”); State v Carter, 14 P.3d 1138, 1148 (Kan. 2000) (“By such conduct defense counsel was betraying the defendant by deliberately overriding his plea of not guilty. He not only denied Carter the right to conduct his defense, but, as in Brookhart, it was the equivalent to entering a plea of guilty. To allow the defense -31- counsel to argue to the jury that Carter is guilty while Carter is verbally maintaining his innocence violates his Sixth Amendment right to counsel and interferes with his due process right to a fair trial.”). B. Counsel Conceded Mr. Nesbitt’s Guilt Here, counsel, without meaningful discussions with Mr. Nesbitt and largely in his absence, conceded his client’s guilt to two of the three top charges in the indictment. Counsel’s concession led to his conviction on offenses for which he is serving 25 years’ incarceration. That sentence is the maximum possible sentence that Mr. Nesbitt faced after indictment, yet Mr. Nesbitt vociferously sought to contest his guilt and challenge the People’s proof. Mr. Konoski, though assigned to defend Mr. Nesbitt, provided no defense to the first-degree assault charges. In fact, he planned to present no defense. Immediately before trial – before he had even heard one shred of evidence or testimony from the witness stand – he announced that he did not “have any defense to the assault in the first degree” charges (A. 168). He claimed to have brain-stormed for ideas as to possible defenses, but all he could come up with was that “potentially [Mr. Nesbitt] didn’t do it, which . . . in this case is just preposterous” (A. 169). Therefore, he would not be making an opening statement or cross examining -32- witnesses (A. 168-69). By his own admission he would be offering “very little defense” (A. 170). Starting at jury selection, Mr. Konoski did “very little” but prepare the jury to convict his client of the assault charges. In his first words to the prospective jurors, counsel introduced a hypothetical in which the People proved beyond a reasonable doubt some charges (i.e. the assault charges) but did not present sufficient evidence on one charge (i.e. the attempted murder charge). Mr. Konoski sought assurances from the jurors not merely that they would acquit of the insufficient count, but that they would convict of the sufficient counts (E.g. A. 106-07 (asking whether the jurors would be willing to “find guilty” of the offense that “was proven beyond a reasonable doubt”); A. 108 (asking whether “anybody that has a problem finding not guilty on one, but guilty on the other”)). When trial unfolded, counsel made clear to the jurors that he was not fully defending the case. He made no opening statement and declined to cross-examine most of the witnesses. See Stouffer v. Reynolds, 168 F.3d 1155, 1163 (10 Cir. 1999)th (defense counsel’s failure to make an opening statement “serve[d] to underscore the lack of any discernible effort by Petitioner’s counsel to present a defense”). He presented no defense case, poked no holes in the People’s case, and -33- suggested no basis for any verdict other than guilty on the first-degree assault charges. When summations came, he reminded the jurors of his voir dire and invited the jury to convict Mr. Nesbitt of the first- degree assault charges (A. 329). While arguing that the jurors should acquit of the attempted murder charge, he pointedly left it to the jurors to make “the right decision” on the assault charges (A. 341). In case the jurors did not understand what the “right decision” was on the assault charges, he contrasted that with the “not guilty” verdict he sought on the attempted murder charge (A. 342). Thus, Mr. Konoski left no doubt that the “right decision” was to convict, even noting that using a “scalpel during a fight” is “serious” and the “charges for that” were “the assault charges” (A. 333). The wounds, he conceded, could have “result[ed] in scarring. . . . that’s the assault charges” (A. 336). The prosecutor rightly recognized, in his summation, that Mr. Konoski had “concede[d] the Assault 1 counts” (A. 365). Mr. Konoski did not dispute that or object to that statement. There was “no question” raised at trial, the prosecutor recounted, “that the defendant intended to cause serious physical injury to Anthony Johnson . . . [and] did, in fact, seriously physically injury Anthony Johnson” (A. 345). Mr. -34- Konoski did not object to those statements, because he agreed with them. To be sure, counsel did not specifically inform the jury that he was conceding Mr. Nesbitt’s guilt, but no formulaic recitation of specific words is necessary to find a concession. An implied concession is just as wrong as an explicit concession. An “implied concession” occurs “where a reasonable 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) (internal quotations and citations omitted). Here, counsel told the jurors in voir dire that he would ask them to vote to acquit on one count and convict on others. He then did not present an opening, cross-examine most witnesses, or present any argument as to why the jury should not convict of the first- degree assault counts. He did not even ask the jurors to hold the People to their high burden of proof on those counts. Instead, in summation, he told the jurors to do what was right on those counts, which was sharply contrasted with his plea to acquit on the attempted murder count. Counsel then sat silently when the prosecutor noted that he had “concede[d]” guilt on those counts (A. 365). A reasonable person could only have concluded that counsel was not contesting guilt on the assault counts and was, therefore, conceding guilt. Because the concession of guilt by counsel without his -35- client’s consent was improper, this Court should find counsel’s actions per se ineffective and reverse the conviction on that basis alone. C. Counsel’s Concession Was Not a Strategic Gambit Although Mr. Konoski did proffer a partial defense in this case, his concession on the assault counts was not a strategic gambit. Here, the attempted second-degree murder charge was of the same seriousness – a class B violent felony offense – as the first-degree assault charges and called for the same sentence – a determinate term from 10 to 25 years. Thus, Mr. Konoski could not have been strategically trying to avoid a top count conviction by conceding guilt on the lesser charges. Cf. People v. Thomas, 244 A.D.2d 271 (1 Dep’tst 1997). Instead, he was offering a defense to only one of three top charges while conceding guilt on charges as serious and with the same sentencing exposure as the other count. Mr. Konoski’s own words establish this was not a strategic plan. Mr. Konoski candidly announced that he could think of no possible defense to the first-degree assault counts “other than potentially he didn’t do it, which in my o[w]n mind . . . is just preposterous” (A. 169). Mr. Konoski’s remarks show that he never thought to argue that the injuries were not grave enough nor the evidence of intent not strong enough to support anything but the first-degree assault -36- charges. Instead, Mr. Konoski believed “the evidence against Mr. Nesbitt, in my opinion, happens to be extremely strong” (A. 167) and “quite overwhelming” (A. 167). He simply could not think up “any defense to the assault in the first degree” charges (A. 168). Nor is this a situation where the failure to request a lesser-included offense can be considered strategic. Here, Mr. Konoski did not exploit the failure to submit the lesser included charge of second-degree assault by arguing for an acquittal on the first-degree assault charges. Cf. People v. Lane, 60 N.Y.2d 748 (1983); People v. Bradburn, 110 A.D.2d 1065, 1066 (4 Dep’t 1985). In contrast, Mr. Konoskith presented no defense to the first-degree assault charges and conceded Mr. Nesbitt’s guilt. Notably, Mr. Nesbitt received the maximum possible sentence after conviction on the first- degree assault counts that he could have received on the attempted murder count, giving lie to any suggestion that Mr. Konoski was pursuing a legitimate strategy to minimize sentencing exposure. An attorney’s concession as to the client’s guilt may arguably be permissible where there is a strategic basis for the concession. See Florida v. Nixon, 543 U.S. 175, 190-91 (2004) (finding, in a capital case, that counsel’s strategic concession during the guilt phase was allowable where “avoiding execution [may be] the best and only realistic -37- result possible,” but recognizing that “such a concession in a run-of-the-mine trial might present a closer question”) (internal citations omitted, alterations in original). Here, with no strategic rationale for the concession, counsel’s actions were per se ineffective requiring that Mr. Nesbitt’s conviction be reversed. D. Mr. Nesbitt’s Conduct Did Not Permit Counsel to Make the Concession While Mr. Nesbitt’s conduct should certainly be considered in determining whether it affected Mr. Konoski’s performance, see People v. Aiken, 45 N.Y.2d 394 (1978), his conduct could not excuse Mr. Konoski’s failure to present any defense. See Harding v. Davis, 878 F.2d 1341, 1344 (11 Cir.th 1989) (“[E]ven a criminal defendant’s complete noncooperation does not free his lawyer to abdicate his professional responsibility to represent his client in the best way possible under the circumstances.”). Here, the record shows that Mr. Nesbitt was actually denied any defense, raising fears that counsel purposefully “threw” trial in order to retaliate against him. Mr. Konoski repeatedly informed the court about misconduct on Mr. Nesbitt’s part, even though he sought no relief from the court. And he kept emphasizing to the court his view about the overwhelming nature of the prosecution’s proof, even -38- before any evidence had been tendered. By doing so, Mr. Konoski was prejudicing the court toward his client while advancing no legitimate interest of his client. Mr. Konoski seemed more focused on defending his lack of effort, in order to head off an ineffectiveness claim, while not advancing legitimate arguments on behalf of his client. While Mr. Konoski repeatedly insisted that despite Mr. Nesbitt’s conduct toward him he could effectively continue to represent him, Mr. Konoski performance refutes those claims. In sum, counsel was per se ineffective here because he “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing” thus making the “adversary process itself presumptively unreliable.” United States v. Cronic, 466 U.S. at 659; see also United States v. Swanson, 943 F.2d at 1074. II. Counsel’s Failure to Present a Viable Defense or Request a Lesser Included Offense Deprived Mr. Nesbitt of Effective Assistance Even had counsel not effectively conceded guilt, his performance was still deficient in that he failed to present a viable defense to the assault charges when such a defense existed. That deficient performance harmed Mr. Nesbitt because it led to the proceeding being unfair and because it prejudiced Mr. Nesbitt. -39- The Federal and New York State Constitutions provide criminal defendants with the right to the assistance of counsel. U.S. Const., amends. VI, XIV; N.Y. Const., art. I, § 6. That right includes more than the appointment of a lawyer to stand alongside. See Strickland v. Washington, 466 U.S. 668, 685 (1984); People v. LaBree, 34 N.Y.2d 257, 260 (1974). Rather, under the Federal standard, the right to the assistance of counsel requires the “effective” assistance of counsel. Strickland v. Washington, 466 U.S. at 686; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). A new trial is required for defendants who establish that trial counsel’s performance was deficient and that such performance prejudiced the defense. See Strickland v. Washington, 466 U.S. at 687. Similarly, under the New York standard, a new trial is required when the evidence, the law, and the circumstances of the case, viewed in the totality and as of the time of the representation, reveal that the attorney did not provide “meaningful” representation and that the attorney’s representation led to the proceeding being unfair. See People v. Caban, 5 N.Y.3d 143, 155 (2005); People v. Benevento, 91 N.Y.2d 708, 714 (1998); People v. Baldi, 54 N.Y.2d 137 (1981). A. Counsel’s Performance Was Deficient In Failing To Present Any Defense When a Viable Defense Existed Counsel could have defended the assault charges. The defense was straight forward: either Mr. Nesbitt did not -40- cause seriously physical injury and permanent and serious scarring or he did not intend to cause such injuries. Mr. Nesbitt was charged with two different versions of first-degree assault. Under count two, he was charged with intending to cause “serious physical injury” and causing such injury by means of a “dangerous instrument” in violation of Penal Law § 120.10(1). Under count three, he was charged with intending to “disfigure another person seriously and permanently” and causing such injury in violation of Penal Law § 120.10(2). The jurors could not have convicted Mr. Nesbitt of first- degree assault under the second count unless they unanimously agreed that Mr. Johnson suffered injuries that created “a substantial risk of death, or which cause[d] death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” Penal Law § 10.00(10) (defining “serious physical injury”). Although a doctor testified that one of the wounds came within a inch of cutting an artery, which, had it been cut, could have been life threatening (A. 290-91, 293), that testimony about a hypothetical injury does not support the claim that the injury actually inflicted either “cause[d] death” or “a substantial risk of death.” See People v. Tucker, 91 A.D.3d 1030, 1031 (3d Dep’t 2012) (finding evidence insufficient despite the doctor’s testimony that the eight -41- stab wounds “could [] have caused substantial risk of death,” because the doctor “did not . . . state that the wounds actually did create such a substantial risk”). The statute looks to “the victim’s actual injuries, rather than mere possibilities or what could have happened.” Id.; see also People v. Sleasman, 24 A.D.3d 1041, 1042-43 (2d Dep’t 2005) (finding that knife wound to the neck requiring two units of blood did not support “a finding of substantial risk of death” where there was no injury to the trachea, esophagus, or major blood vessels in the neck); People v. Horton, 9 A.D.3d 503 (3d Dep’t 2004) (finding insufficient evidence of serious physical injury where victim was shot in the neck with the bullet lodged near spinal cord because “[d]iagnostic testing revealed no injuries to his esophagus, trachea, the major blood vessels or the nerves in his neck”). To the extent that the wound nearly missed an area that could have then “cause[d] death” or “a substantial risk of death,” an attempted first-degree charge might have been appropriate; but no such charge was pursued by the People. Thus, the assault charge could not be sustained on the theory that the injury caused a substantial risk of death. The sole bit of testimony about any “impairment of health or protracted loss or impairment of the function of any bodily organ” was Mr. Johnson’s testimony that “everything is fine now, just except my arm is – I kind of feel it but I don’t. -42- That’s basically it” (A. 230). Whether a periodic numbness in a few inches of his arm could even amount to a “protracted loss or impairment” of the function of a “bodily organ” is doubtful. A strong, if not dispositive, argument existed that a five inch spot on the arm was not a “bodily organ” and that even if it was, the periodic numbness did not amount “protracted loss or impairment” of that arm. See People v. Castillo, 199 A.D.2d 276, 277 (2d Dep’t 1993) (finding evidence insufficient where “the complainant suffered two stab wounds which required suturing,” “was treated and released from the hospital and was absent from work for the next two weeks” and, at trial, eighteen months later reported that “[i]t hurts once in a while when the weather changes”). Cf. People v. Whyte, 47 A.D.3d 852, 853 (2d Dep’t 2008) (upholding conviction where victim suffered partial loss of vision); People v. Lugo, 181 Misc. 2d 811, 814 (Sup. Ct. Kings Co. 1999) (same where victim suffered inability to close jaw). Nor did Mr. Johnson necessarily suffer “serious and protracted disfigurement” under the second count of the indictment or “serious[] and permanent[]” disfigurement under the third count. Here, Mr. Johnson’s injuries were not so severe as to warrant immediate treatment. He was made to wait for over an hour at the emergency room (A. 224, 236). His entire treatment was the suturing of the wounds in the ER (A. 225). The only follow up treatment was the removal of the -43- stitches two weeks later (A. 229). Although Mr. Johnson claimed a bad headache and a swollen face for two weeks, those were not serious, much less protracted or permanent, disabilities. Notably, the doctors at the ER termed the wounds “superficial lacerations,” which did not penetrate deeply (A. 298). No plastic surgeon was consulted much less employed to deal with any scarring. Admittedly, Mr. Johnson had scarring. The statutes, however, requires more. The scars must amount to either “serious or protracted disfigurement,” Penal Law § 10.00(10), or “serious[] and permanent[]” disfigurement, Penal Law § 120.10(2). As this Court held, “[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 standard is “an objective one” that requires the viewing of the injury “in context, considering its location on the body and any relevant aspects of the victim’s overall physical appearance.” Id. Not all scars meet that definition. See id. (finding evidence insufficient where severe and deep bite marks remained visible). Even serious stab wounds do not necessarily meet that standard. See, e.g., People v. Robles, 173 A.D.2d 337, 338 (1 Dep’t 1991) (reversing conviction for insufficientst evidence of disfigurement where victim stabbed in neck and shoulder and suffered from difficulty eating and walking); see -44- also People v. Adames, 52 A.D.3d 617, 618 (2d Dep’t 2008) (finding insufficient evidence to support first-degree assault where complainant was stabbed in chest and back and testified that she still had scars at time of trial); People v. Matos, 107 A.D.2d 823, 824 (2d Dep’t 1985) (finding insufficient evidence of protracted disfigurement where complainant shot in the leg and required lengthy hospitalization). The injuries present are similar to those recently considered by this Court in People v. Stewart, 18 N.Y.3d 831 (2011). There, as here, the assault “involv[ed] numerous blows with a sharp instrument,” but “the resulting injuries were described in their most acute aspect by the treating emergency room physician as ‘superficial’; no organ damage or injury to muscle tissue was radiologically evident.” Id. at 832. There, as here, the entire treatment was dressing the wounds and, in one circumstance, suturing. Id. Unlike here, the victim in Stewart spent longer in the hospital (a day) and “complained of daily pain attributable to his healing scars.” Id. There, as here, the victim sought no “follow-up medical care, apart from the removal of his stitches.” Id. This Court found that evidence in Stewart to be legally insufficient to support first-degree assault. Id. at 832-33. Here, the question is not one of legal sufficiency, where all of the evidence is viewed in the light most favorable to the prosecution. Cf. People v. McLaughlin, 8 A.D.3d 146, 147 -45- (1 Dep’t 2004) (finding sufficient evidence of disfigurementst where victim suffered a permanent and noticeable change in shape of face); People v. Martinez, 257 A.D.2d 667 (2d Dep’t 1999) (same where victim’s plastic surgeon described wounds as “permanent”); People v. Allen, 165 A.D.2d 786, 787 (1 Dep’tst 1990) (same where permanent hemorrhage of blood in eye). The question here is whether there was room for counsel to have argued otherwise. Mr. Konoski could and should have argued that those strict standards as to the scope of the injuries were not made out. Even if Mr. Konoski for some reason believed he could not possibly argue that the “superficial lacerations,” were not “serious and protracted disfigurement” or “serious[] and permanent[]” disfigurement, he could still have argued that Mr. Nesbitt did not necessarily intend those injuries to result. To be guilty of the charged assaults, Mr. Nesbitt must have had the specific intent to maim Mr. Johnson. See People v. McLaughlin, 8 A.D.3d at 147; People v. Tran, 188 Misc.2d 717, 718 (N.Y. Sup. Ct. Queens Co. 2001), aff’d, 308 A.D.2d 497 (2d Dep’t 2003). That intent requirement is in addition to the requirement that Mr. Nesbitt actually caused such an injury. The statute “requires a specific intent to achieve the mayhem result. If the intent is merely to ‘injure,’ the crime is either second or third degree assault depending upon the seriousness of the injury intended.” -46- Commission Staff Notes to Penal Law § 120.10(2). Although, in some cases such intent can be inferred from the injuries themselves, a jury is prohibited from automatically presuming that the defendant intended the natural consequences of his actions. See Sandstrom v. Montana, 442 U.S. 510 (1979). The jury is merely permitted to make such an inference, if it can be fairly drawn from the evidence. See People v. Steinberg, 79 N.Y.2d 673, 685 (1992). Thus, Mr. Konoski was free to argue that the jurors should not draw that inference of intent even if the injuries met the statutory definition. As the trial court below noted, intent is an issue “uniquely . . . for the jury to determine” (A. 324). Mr. Konoski should have recognized that he had arguments to make. The trial evidence did not show any statements of intent, aside from the ambiguous remark that Mr. Nesbitt was going to show Mr. Johnson how things were “done in Brooklyn.” Many of the injuries were caused during a struggle, leaving room to argue that the specific intent might not have been to main or permanently disfigure. Surely competent counsel could have crafted some argument in support of a claim that the People had failed to prove first-degree assault beyond a reasonable doubt. With no other defense to offer, Mr. Konoski had nothing to lose by arguing that the People had not proven beyond a reasonable doubt either the extent of the injuries necessary -47- to support first-degree assault or the requisite specific intent to cause those injuries. That argument would not have contradicted or even hurt his argument regarding the attempted murder charge. It was, in fact, a logical extension of that same argument. B. Counsel’s Performance Was Otherwise Subpar This is not a case where counsel’s failing was isolated to a small issue. The determination of Mr. Nesbitt’s guilt on the top charges in the case – including the two first-degree assault charges – was the issue in the case. Not only did counsel utterly fail to contest guilt as to those counts, but his performance throughout the trial was subpar. From the beginning to the end of the case, Mr. Konoski showed scant familiarity with the governing law and poor judgment. For example, even before trial began, Mr. Konoski “agree[d]” that his own client “needs to be shackled for the course of this Trial” (A. 23). Counsel, however, should have been protecting Mr. Nesbitt’s interests by ensuring that leg irons were not used unless the court itself found them to be absolutely necessary. See People v. Clyde, 18 N.Y.3d 145, 152 (2011) (holding that “[t]he trial court must exercise ‘close judicial scrutiny’” whenever physical restraints are used) (internal citations omitted). Moreover, counsel should not have been prejudicing the court toward his client by bringing -48- up threats or actions that his client took toward him (e.g. A. 25-26), unless counsel was seeking to get relieved or some other relief. Certainly, counsel had no reason to be discussing with the court, before trial had even begun, how overwhelming he viewed the evidence against his client to be (A. 167). The prosecution’s use of counsel’s own statements against Mr. Nesbitt at sentencing (A. 403), shows the harm. Counsel’s grasp of legal issues did not appear strong. In arguing against the prosecution’s use of prior convictions to impeach his client should he testify, counsel inverted the standard. Counsel not only inflated Mr. Nesbitt’s record by discussing prior “robberies,” when Mr. Nesbitt just had a single attempted robbery conviction (A. 28), but he argued that “the robberies” should not be used to impeach because they were dissimilar to the case at issue. The law is the opposite. See People v. Sandoval, 34 N.Y.2d 371, 376-77 (1974) (recognizing that prior offenses similar to the one being tried might be overly prejudicial due to the danger that the jurors will use that prior offense as evidence of propensity, but recognizing that theft offenses are particularly probative of truthfulness). During jury selection, counsel showed scant interest in the case or in gathering a jury that would critically examine the evidence. Indeed, counsel had already decided the evidence was overwhelming and the case unwinnable. Although -49- armed with 15 peremptory challenges for the regular jurors and two additional peremptory challenges for each alternate juror, see Penal Law § 270.25(2)(b), for a total of 21 potential strikes, counsel used just one (to strike a police officer). He did not strike potential jurors whose family members were in law enforcement, even though nothing else about those jurors would appear helpful to the defense (A. 44-45, 47-48). During trial, as noted, counsel presented no opening statement, did not cross examine most witnesses, and presented no defense case. He offered almost no objections during trial, not even when the prosecutor asserted in summation that he had conceded guilt on the assault counts and stated that there was “no question” of Mr. Nesbitt’s guilt (A. 345-46). Counsel also appeared confused as to the law governing lesser included offenses and, perhaps, even the relevant elements of the different degrees of assault. When the court asked Mr. Konoski whether he wanted any lesser included offenses charged to the jury, Mr. Konoski responded with “no” “other than maybe an assault, third degree charge” (A. 324). Third-degree assault, while in the abstract a possible lesser included offense of the type of first-degree assault Mr. Nesbitt was charged with, was not at all applicable to this case. A person commits third-degree assault when intending to cause physical injury, he causes such physical injury. See Penal Law § 120.00(1). The difference between that charge and -50- the second-degree charge is the absence of the “dangerous instrument” element. Compare Penal Law § 120.00(1) with Penal Law § 120.05(2). A “dangerous instrument” is statutorily defined as including “any instrument . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.” Penal Law § 10.00(13). The three- bladed scalpel surely constitutes such an instrument. Therefore, there was no reasonable view of the evidence supporting third-degree assault. The proper lesser included offense was second-degree assault on the theories that the injury caused was not necessarily serious physical injury and intent was a question for the jury. Those arguments Mr. Konoski missed. He never requested the lesser included offense even though the court appeared open to it and even though second-degree assault had a significantly lower sentencing range. See Penal Law § 70.05(3)(c) (setting forth the sentencing range for second degree assault, a class D violent felony offense, at five to seven years for a second violent felony offender). Counsel was no better at sentencing. Instead of advocating for a lesser sentence for his client, Mr. Konoski took the opportunity to remind the court that Mr. Nesbitt had threatened him and spit on him (A. 403). He spent his time defending his own performance – “I believe [I advocated] in an -51- effective manner for Mr. Nesbitt” (A. 403) – instead of attempting to humanize his own client. His only plea to the court was a bare bones request that Mr. Nesbitt be sentenced to “less than the maximum” (A. 404). Although such failings standing alone might not require reversal of the conviction, his performance when viewed in totality was not meaningful. See People v. Cummings, 16 N.Y.3d 784, 785 (2011) (“The core of our inquiry in reviewing ineffective assistance of counsel claims is whether counsel’s performance ‘viewed in totality’ amounts to ‘meaningful representation.’”) (quoting People v. Baldi, 54 N.Y.2d at 147). Certainly, this was not a case of one minor failing by counsel. C. Counsel’s Deficient Performance Harmed Mr. Nesbitt Counsel’s deficient performance harmed Mr. Nesbitt under both the State and Federal standards. New York’s “standard of meaningful representation” “focuses on the ‘fairness of the process as a whole rather than its particular impact on the outcome of the case.’” People v Caban, 5 N.Y.3d at 155-56 (quoting People v. Benevento, 91 N.Y.2d at 714). “Thus, under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial.” Id. -52- Focusing on the proceeding as a whole, one cannot say that it was fair to Mr. Nesbitt. Mr. Nesbitt sought to contest the prosecution’s proof. He sought to hold the People to their heavy burden. Instead, Mr. Konoski gave up before trial had even begun and then invited the jury to convict his client of the assault counts. Counsel did not afford the jury the option of considering the lesser degree of assault, even though the maximum possible sentence for that offense would have been one-quarter of the term Mr. Nesbitt ended up receiving. Mr. Nesbitt had his guilt determined by a jury about which counsel cared little of its composition. That jury heard no defense whatsoever to the assault charge and saw a deflated attorney not even bothering to participate in much of the trial process. Counsel cared more about protecting himself from ineffective assistance than he did about protecting his client from a conviction. Counsel could dream up no defense to the charges, despite defenses as to both the requisite injury and the mens rea existing, and offered the jury no path to acquit. Surely if the fairness of the proceeding stands for anything, this mockery of a trial cannot stand. See People v. Lopez, 16 N.Y.3d 375, 385 (2011) (“New York has long viewed the right to counsel as a cherished and valuable protection that must be guarded with the utmost vigilance.”). -53- Even under the stricter federal standard, Mr. Nesbitt must prevail. Under the federal standard, prejudice is established if “[t]he defendant ... show[s] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Given the strength of the defenses not presented (or developed) in this case, there is a reasonable probability that but for counsel’s failings the outcome of the trial would have been different. See People v. Stewart, 18 N.Y.3d at 832-33; People v. McKinnon, 15 N.Y.3d at 315. -54- CONCLUSION FOR THE REASONS SET FORTH ABOVE, 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 April 16, 2012 -55- PRINTING SPECIFICATIONS STATEMENT 1. Processing System: WordPerfect x4. 2. Typeface: Courier New. 3. Point Size: 12 point text; 10 point footnotes. 4. Word Count: 12,001 words (excluding table of contents, table of authorities, and appendices). -56-