The People, Respondent,v.Prince Clark, Appellant.

Brief

N.Y.November 16, 2016

To he argued hy DE NICE POWELL ( 15 .\linutcs) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Re.<,pondent, - against - PRINCE CLARK, Defendant-Appellant. AMENDED BRIEF FOR DEFENDANT-APPELLANT DE NICE POWELL Of ( 'ounsel October 2. 2015 APL-2015-00183 LYNN W. L. FAHEY APPELLATE ADVOCATES Attorney for Defendant-Appellant 111 John Street. 9th Floor New York. NY 10038 (212) 693-0085 FAX: (212) 693-0878 INDEX PRELIMINARY STATEMENT 1 QUESTIONS PRESENTED 2 STATUTORY PROVISIONS INVOLVED 3 SUMMARY OF ARGUMENT 3 I 3 II 7 STATEMENT OF FACTS 8 Introduction 8 The Court's Ejection of the Audience from the Courtroom During Jury Selection 10 The People's Case at Trial . 10 The Eyewitness Evidence 10 Investigation . 12 Defense Counsel's Deferral to Appellant to Make the Strategic Decision Not to Pursue the Justification Defense Counsel Knew Should Be Pursued . . 14 Defense Counsel's Summation, and the Charge, Deliberations, and Verdict . 16 The Appellate Division Decision 19 ARGUMENT POINT I APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN ( 1) COUNSEL AND THE COURT, MISTAKENLY BELIEVING THAT APPELLANT HAD THE SOLE AUTHORITY TO MAKE THE CLASSIC TACTICAL DECISION OF WHAT DEFENSES TO RAISE, DEFERRED TO APPELLANT'S WISH NOT TO PRESENT THE JUSTIFICATION DEFENSE COUNSEL KNEW SHOULD BE PRESENTED; AND (2) COUNSEL FAILED TO PROTECT APPELLANT'S FUNDAMENTAL RIGHT TO A PUBLIC TRIAL (A) (B) POINT II THE COURT VIOLATED ITS DUTY TO RESPOND MEANINGFULLY TO THE JURY'S REQUEST FOR INSTRUCTION ON THE LAW WHEN, IN ANSWERING ITS REQUEST FOR GUIDANCE ON HOW JUSTIFICATION AFFECTED APPELLANT'S CULPA- BILITY FOR MURDER, IT TOLD JURORS NOT TO CONCERN THEMSELVES WITH THE DEFENSE AND TO FOCUS INSTEAD SOLELY ON WHETHER HE INTENDED TO KILL THE DECEASED CONCLUSION . . . ii 22 24 45 50 57 TABLE OF AUTHORITIES CASES: Andres v. United States, 333 U.S. 740 (1948) Berryhill v. Ricketts, 242 Ga. 447 (1978) Brookhart v. Janis, 384 U.S. 1 (1966) Faretta v. California, 422 U.S. 806 (1975) Gomez v. United States, 490 U.S. 858 (1989) v. United States, 553 U.S. 242 (2008) In Re Oliver, 333 U.S. 257 (1948) Johnson v. Zerbst, 304 U.S. 458 (1938) Jones v. Barnes, 463 U.S. 745 (1983) Kirby v. Illinois, 406 U.S. 682 (1972) Lanier v. State, 486 P.2d 981 (Alaska 1971) Lewis v. Alexander, 11 F.3d 1349 (6th Cir. 1993) McMann v. Richardson, 397 U.S. 759 (1970) 50 29 27 26,27 . 48 6,27,32 . 45 6,25,36 4,26,28,34 35 24,32 29 33 26 New York v. Hill, 528 U.S. 110 (2000) 26 Nieves v. Kelly, 990 F.Supp. 255 (S.D.N.Y. 1997) 31 Ortiz v. State, 866 S.W.2d 312 (Tex. Crim. App. 1993) 29 Outten v. 29 Owens v. United States, 483 F.3d 48 (ist Cir. 2007) 49 People v. Ahmed, 66 N. Y.2d 307 (1985) 7,50 People v. Almodovar, 62 N. Y.2d 126 (1984) 51 People v. Alvarez, 20 N.Y.3d 75 (2012) 46,47,48,49 People v. Baldi, 54 N. Y.2d 137 (1981) 6,24 People v. Benevento, 91 N. Y.2d 708 (1998) 28,36,44 iii People v. Berk, 88 N.Y.2d 257 (1996) 37 People v. Ciaccio, 47 N.Y.2d 431 (1979) 51 People v. Colon, 90 N. Y.2d 824 (1997) 29,45 People v. Colville, 20 N.Y.3d 20 (2012). 4,34,38 People v. Copeland, 216 A.D.2d 55 (1st Dept. 1995) 39 People v. Davis, 13 N. Y.3d 17 (2009) 4,28 People v. DeGina, 72 N.Y.2d 768 (1988) 36,54 People v. Diaz, 15 N.Y.3d 40 (2010) 37 People v. Ellis, 81 N. Y.2d 854 (1993) 31 People v. Ferguson, 67 N.Y.2d 383 (1986) 28 People v. Gallardo, 112 Ill .App. 3d 764 (1983) 4,32 People v. Gezzo, 307 N.Y. 385 (1954) 51 People v. Giamanco, 188 A.D.2d 547 (2d Dept. 1992) 39 People v. Glover, 165 A.D.2d 880 (2d Dept. 1990) 32 People v. Gonzalez, 293 N.Y. 259 (1944) 51,52,53,55,56,57 People v. Gray, 86 N.Y.2d 10 (1995) 55 People v. Guiterez, 86 N. Y.2d 817 (1995) 48 People v. Hamilton, 48 Cal. 3d 1142 (1989) 29 People v. Henning, 271 A.D.2d 813 (3d Dept. 2000) 51 People v. Henry, 95 N.Y.2d 563 (2000) 24 People v. Jelke, 308 N.Y. 56 (1954) 6,45 People v. Jeremiah, 168 A.D.2d 458 (2d Dept. 1990) 4 People v. Jones, 53 Cal. 3d 1115 {1991) 33 Jordan, 96 A.D.2d 1060 (2d Dept. 1983) I 62 N. Y.2d 825 (1984) 24,29 People v. Khan, 68 N. Y.2d 921 (1986) 54 People v. Kin Kan, 78 N.Y.2d 54 (1991) 47 lV People v. Lane, 60 N.Y.2d 748 (1983) People v. Lewis, 116 A.D.2d 16 (1st Dept. 1986) People v. Lourido, 70 N.Y.2d 428 (1987) People v. Magliato, 68 N.Y.2d 24 (1986) People v. Malloy, 55 N.Y.2d 296 (1982) 43 54,55 51 39,55 51 People v. Martin, 16 N.Y.3d 607 (2011) 6,45,46,47,48,49 People v. McLucas, 15 N.Y.2d 167 (1965) People v. McManus, 67 N.Y.2d 541 (1986) People v. Mehmedi, 69 N.Y.2d 759 (1987) People v. Mikell, 217 Ill.App.3d 814 (1991) People v. Miller, 7 Cal.3d 562 (1972) People v. Nazario, 4 N.Y.3d 70 (2005) People v. Nieves, 90 N.Y.2d 426 (1997) People v. Padgett, 60 N.Y.2d 142 (1983) People v. Petrovich, 87 N.Y.2d 961 (1996) People v. Ramey, 152 Ill.2d 41 (1992) People v. Rivera, 74 A.D.2d 589 (2d Dept. 1980) People v. Rodriguez, 95 N.Y.2d 497 (2000) People v. Rosen, 81 N.Y.2d 237 (1993) People v. Schultheis, 638 P.2d 8 (Supreme Court of Colorado, En Banc 1981) People v. Steele, 26 N.Y.2d 526 (1970) People v. White, 16 A.D.3d 440 (2d Dept. 2005) People v. White, 73 N.Y.2d 468 (1989) People v. Woods, 290 A.D.2d 346 (lsl Dept. 2002) People v. Zurita, 76 A.D.2d 871 (2d Dept. 1980) v 37 37,38,40,53 56 31 32,35 48 48 38,40 36,37,38 4,34 39 4,28 29 29 54 40 28 51 39 Powell v. Alabama, 287 U.S. 45 (1932) 4,25 Presley v. Georgia, 558 U.S. 209 (2010) 6,45,46,47,48 Press-Enterprise v. California, 464 U.S. 501 (1984) 46 Smith v. United States, 1993 WL 485606 (S.D.N.Y. 1993) 31 State v. DeGuzman, 68 Haw. 14 (Haw. 1985) 29 State v. Jones, 392 N.W.2d 224 (Minn. 1986) 29 State v. Pratts, 365 A.2d 928 (N.J. 1976) Strickland v. Washington, 466 U.S. 668 (1984) Taylor v. United States v. Cronic, 466 U.S. 648 (1984) United States v. Vegas, 27 F.3d 773 (2d Cir. 1994) United States ex rel. Williams v. Twomey, 510 F.2d 634 (7th Cir. 1975) Van Alstine v. 263 Ga. 1 (1993) Wainwright v. Sykes, 433 U.S. 72 (1977) Waller v. Georgia, 467 U.S. 39 (1984) 29 6,24,25,44 25,26 . 25 4,31 32 29 4 I 31 6,45,46 CONSTITUTIONAL PROVISIONS, STATUTES, AND OTHER AUTHORITIES U.S. Const., Amend. VI 23,44 U.S. Const., Amend. XIV 23,50 N.Y. Const., Art. I, §6 . 44 C.P.L. §300.10(2) C.P.L. §310.30 8,21,50,52,53,55 P.L. §35.15(1) 39 P.L. §35.15(2) 39 P.L. §125.25(1) (a) 37 ABA Criminal Justice Standards for the De Function (4th ed., 2015), Standard 4-5.2 .. 4,30,33,35 vi New York Rules of Professional Conduct, 1.2(a) 4,30,31 CJI2d[NY] Justification: USE OF DEADLY PHYSICAL FORCE IN DEFENSE OF A PERSON, PENAL LAW 35.15 [Effective Sept. 1, 1980] . . . . . . . . 54 Vll STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PRINCE CLARK, Defendant-Appellant. PRELIMINARY STATEMENT By permission of the Honorable Robert J. Miller, Associate Justice of the Appellate Division, Second Department, granted on June 29, 2015 (A 1) , 1 appellant Prince Clark appeals from an order of that court, entered April 29, 2015 (A 2-44), which affirmed a judgment of the Supreme Court, Kings County, rendered on December 22, 2010, convicting him, after a jury trial, of murder in the second degree and assault in the second degree, and sentencing him to consecutive prison terms of 20 years to life and 5 years. On August 27, 2015, this Court granted appellant leave to proceed as a poor person and assigned Lynn W. L. Fahey, of Appellate Advocates, as counsel on appeal. Appellant is incarcerated pursuant to the judgment. No stay has been sought. Appellant had one co defendant, Michael Morrison, who Numbers in parentheses preceded by "A" refer to the Amended Appendix. pleaded guilty to criminal possession of a weapon in the second degree. This Court has jurisdiction pursuant to C.P.L. §450.90(1) to entertain this appeal. The first issue, that appellant was denied the effective assistance of counsel, presents an issue of law without the need for a protest. The second issue, that the court failed to respond meaningfully to the jury's request for guidance on the applicable law, presents an issue of law because the court's failure to fulfill its charging obligations constituted a mode of proceedings error. QUESTIONS PRESENTED 1. Was appellant denied the effective assistance of counsel when ( 1) counsel and the court, mistakenly believing that appellant had the sole authority to make the classic tactical decision of what defenses to raise, deferred to appellant's wish not to present the justification defense counsel knew should be presented; and (2) counsel failed to protect appellant's fundamental right to a public t al? 2. Did the court violate its duty to respond meaningfully to the jury's inquiry when, in answering its request for guidance on how self-defense might affect appellant's culpability for murder, it told the jurors not to concern themselves with that defense and to focus 2 instead solely on whether appellant intended to kill the deceased? STATUTORY PROVISIONS INVOLVED C.P.L. general §300.10 Court's Charge; in 2. In its charge, the court must state the material legal principles applicable to criminal cases in general. * * * The court must also state the material legal principles applicable to the particular case . C.P.L. §310.30 Jury Deliberation; request for information At any time during deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. SUMMARY OF ARGUMENT I Over 80 years ago, the Supreme Court established that an attorney representing a criminal defendant has the obligation to make strategic decisions because the accused, "lack[ing] both the skill and knowledge adequately to prepare his d,efen.se / " " res the guiding hand of counsel." "[W]ithout it, though he be not guilty, he faces the danger of conviction 3 because he does not know how to establish his innocence." Powell v. Alabama, 287 U.S. 45, 69 (1932) In v. Barnes, 463 U.S. 745, 751 (1983), the Supreme Court recognized the importance of counsel's tactical expertise in affording a defendant a fair t when it held that, although the accused has the "ultimate authority to make certain fundamental decisions" ("whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal"), other decisions are "matter[s] of professional judgment" to be determined by defense counsel. Accord People v. Colville, 20 N.Y.3d 20 (2012); People v. Davis, 13 N.Y.3d 1 7, 30 (2009) People v. Rodriguez, 95 N. Y. 2d 497, 501-502 (2000); ABA Criminal Justice Standards for the Defense Function (4th ed., 2015), Standard 4-5.2; New York Rules of Professional Conduct, 1.2(a) Courts have also long held that whether to pursue a particular theory of defense is a quintessential tactical decision requiring an attorney's knowledge, skill, and professional judgment. See, ~' Wainwright v. Sykes, 433 U.S. 72, 93 (1977) (Burger, C.J., concurring); United States v. Vegas, 27 F.3d 773, 777 (2d Cir. 1994); People v. Ramey, 152 Ill.2d 41, 53 (1992); People v. Jeremiah, 168 A.D.2d 458 (2d Dept. 1990); People v. Glover, 165 A.D.2d 880 (2d Dept. 1990); People v. Gallardo, 112 Ill.App.3d 764 (1983). In the instant case, using his professional judgment, defense counsel rightly determined that appellant had a strong justification defense and that relying solely on a 4 misidentification defense was doomed to fail. The People's evidence showed that the deceased, Jamel Wisdom, was part of an armed group who had attacked appellant near his residence. A video showed that, a short time later, Wisdom and a companion pursued appellant into his building's lobby, where Wisdom slammed him against the wall before Wisdom's companion joined in, repeatedly kicking appellant. Within seconds, Wisdom lay fatally shot. Based on that evidence, defense counsel realized that the case cried out for a justification defense. In contrast, an identity defense was only marginally viable at best, particularly given testimony by appellant's friend, who observed the events immediately preceding the fatal shooting and identified appellant as the shooter on the video. Indeed, the jurors obviously shared defense counsel's view. Even without justification being submitted to them, they deliberated for days, repeatedly asked about the intent to kill element of murder, and explicitly asked for information about how self-defense related to the requisite intent to kill. Contrary to well-established law that the choice of defenses is a tactical decision counsel must make, however, defense counsel and the court mistakenly believed that appellant had the sole authority to make such decisions. Furthermore, without any correction by counsel, the court gave appellant fundamentally misleading information about the outcome of a successful justification defense, stating that it 5 would lead not to an acquittal, but only to a manslaughter conviction. As a result of counsel's and the court's mistaken understanding of counsel's obligation, counsel failed to pursue a justification defense through cross-examination of prosecution witnesses, summation, or a charge request. During deliberations, when the jury requested guidance about how self-defense might affect the requisite mens rea for intentional murder, defense counsel still failed to request a justification instruction. By erroneously reassigning counsel's responsibility to make a c tical tactical decision to appellant, counsel and the court denied him an advocate who used his professional knowledge, skill, and judgment to achieve appellant's objectives, Gonzalez v. United States, 553 U.S. 242, 249-250 (2008); v. Zerbst, 304 U.S. 458, 465 (1938), and thereby denied him the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 688 (1984); People v. Baldi, 54 N.Y.2d 137, 147 (1981). Defense counsel also failed to protect appellant's fundamental rights in another way. In all criminal cases, the accused has the fundamental right to a public trial, which extends to jury selection. Presley v. Georgia, 558 U.S. 209 (2010); People v. Martin, 16 N.Y.3d 607, 611 (2011); People v. Jelke, 308 N.Y. 56, 61 (1954). Judicial proceedings may be closed when necessary, but the party seeking closure must advance an overriding interest that is likely to be prejudiced. 16 N.Y.3d at 611, quoting, Waller v. 6 Georgia, 467 U.S. 39, 48 (1984). A court may have a judicial economy interest in filling the courtroom with potential jurors during jury selection, but that interest does not override an accused's constitutional right to a public trial. Martin, 16 N.Y.3d at 611. Nonetheless, when the court excluded spectators, including appellant's family members, from the courtroom during jury selection, defense counsel did not protest. By again failing to protect appellant's constitutional rights, counsel further denied appellant the meaningful representation to which he was entitled. II Integral to the constitutional right to a jury trial is the requirement that a jury be charged on the material legal principles applicable to its determination of a criminal defendant's guilt or non-guilt. See People v. Ahmed, 66 N.Y.2d 307, 311 (1985). In line with this fundamental principle, the Legislature has mandated that, in charging a jury, a court must "state the material legal principles applicable to the particular case." C.P.L. §300.10(2). Therefore, when a deliberating jury requests instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case . . the court . . must give such requested information or instruction as the court deems proper. 7 C.P.L. §310.30. Providing information the jury seeks is "an integral part of the structure of an adequate trial." People v. Gonzalez, 293 N.Y. 259, 263 (1944). Therefore, "if to a proper question the court gives no answer at all or an answer that fails to answer, then the error is reversible" even in the absence of an objection. Id. at 262. Here, the court's response to the deliberating jury, which requested guidance on how self-defense related to the requisite intent to kill element of murder, was equivalent to no response at all. It told the jurors that the law recognizes justification as a defense, but instructed them not to concern themselves with justification; instead, it said, they should focus solely on whether appellant intended to kill the deceased. The court's response clearly did not address the jury's concern about how self defense related to the intent to kill element of murder. It thus violated appellant's right to a properly charged jury and the statutory mandate of C.P.L. §§300.10 and 310.30. STATEMENT OF FACTS Introduction Appellant was indicted for second-degree murder in connection with the shooting death of Jamel Wisdom, and for the attempted murder of Gamard Talleyrand. Before potential jurors entered the courtroom on November 10, 2010, for jury selection, the court ejected the audience, which included 8 appellant's family, to make room for the venire. Defense counsel failed to object. The People's witnesses testified that Talleyrand, Wisdom, and a group of their friends, at least one of whom was armed with a knife, confronted and attacked appellant a couple of blocks from his home. Appellant fled, but later pursued Talleyrand, with the result that a second altercation occurred during which Talleyrand was shot. A surve i 11 ance video showed, minutes later, Wisdom and an unidentified companion pursuing appellant into the lobby of his building and attacking him. Within seconds, Wisdom lay dead on the lobby floor. Defense counsel informed the court that, although the evidence supported a justification defense, he would not pursue it for the sole reason that appellant would not authorize him to do so. The court also deferred to appellant after informing him, without objection, that a successful justification defense would reduce the crime from murder to manslaughter. During deliberations, the jury requested supplemental instructions on the relationship between self-defense and the intent to kill element of murder. In response, the court told the jury that it had not been charged on justification and instructed it to focus solely on whether appellant intended to kill Wisdom. The jury convicted appellant of the second- degree rnurde:r of Ir.Jisdorn and assault as to Talleyrand. 9 The Court's Ejection of the Audience from the Courtroom During Jury Selection Before prospective jurors entered the courtroom, defense counsel noted the presence of appellant's family, including his sister (A 65-67, 105). The court gave appellant's sister an opportunity to speak privately to appellant in the courtroom about the People's plea offer, which he declined, but co defendant Michael Morrison accepted (A 65 70). The court then directed the "audience" to leave the courtroom, saying, "There will be no seating for you when the panel walks in the room. You have to wait outside. We' 11 come and get you as soon as I can make room for you" (A 94 95) . Although the court was aware that "members of the public who wish[ed] to observe" had been excluded from the courtroom (A 120), it began jury selection (A 106) and, after a lunch break (A 126), completed it (A 208). The record does not indicate whether or when the court permitted appellant's family or any other spectators back into the courtroom during jury selection. The People's Case at Trial The Eyewitness Evidence At about 10:00 p.m. on September 22, 2008, appellant's friend Khadija Mitland was with appellant, his cousin Michael Morrison, and their girlfriends, Yani and Shavone, when Gamard Talleyrand (nicknamed "Getti"), Jamel Wisdom, Wisdom's brother, and others confronted appellant on East 1 Street 10 in Brooklyn. Calling appellant names, Talleyrand and his friends pushed and kicked him, provoking a fight between Talleyrand and appellant (A Mitland: 256-263, 271-272, 274, 301-303; Talleyrand: 442-446, 453-454, 458, 461-464). Talleyrand, who was incarcerated in Massachusetts on a gun charge at the time of trial, testified that the fight arose from an "ongoing dispute" involving appellant's failure to return jewelry he had agreed to hold for Talleyrand when Talleyrand was arrested on a previous gun charge (A 443 444, 455 456 I 465-466) • During the ensuing fight, Mitland heard appellant say, "They got a knife, they are going to cut me" (A 301-302). As appellant retreated a couple of blocks toward 68 East 19th Street, where he lived, Mitland saw that he was bleeding (A Mitland: 261, 264, 269 270, 302). Talleyrand and the others pursued and attacked him again on 19th Street before he reached his building (A Mitland: 267-268, 287-288, 302-303; Talleyrand: 446-447). After the second attack, appellant and Michael Morrison entered their building, but emerged a short time later. Mitland saw appellant walk down the block, away from the building. Hearing gunshots, she ran away (A Mitland: 264 265, 268-269). Talleyrand testified that he and his friends remained on the block after he fought appellant the second time. He abruptly left, however, when he saw someone brandishing a gun (A 447-448) . He ran "a couple of steps" before being shot in 11 the leg (A 448-454, 458-459) He said he could not identify the shooter (A 448). The Surveillance Video and Investigation Surveillance video from cameras in and outside of 68 East 19th Street showed a man wearing a white T shirt and jeans, whom Mitland identified as appellant (A 246 [video entered into evidence as People's Exhibit #1] ; 2 Mitland: 270-271), entering what appeared to be the lobby elevator at about 10:26 p.m. About one minute later, the same man, preceded by a man wearing a green baseball hat, whom Mitland identified as Morrison, exited the building (video, Channels One and Five; A Mitland: 274). After appellant and Morrison left the building, appellant appeared to take an object from Morrison. Appellant, alone, then walked away from the building, out of the camera's view. Several minutes later, appellant, holding what appeared to be a gun, returned to the building (A Mitland: 270 272, 275; video, Channel Five) The video showed appellant re-entering the building at about 10: 3 0 p. m. , immediately followed by Wisdom, who was wearing a hooded jacket, and an unidentified man, who was 2 Appellate counsel has viewed the surveillance video, a copy of which has been forwarded to the Court. Talleyrand testified that he had identified appellant at a lineup as the person he had fought before the shooting (A 461-462). He was unable to identify anyone depicted in the surveillance video (A 455, 457-460). 12 wearing shorts and a white hat. Inside, Wisdom immediately attacked appellant, slamming him against the lobby wall. Wisdom appeared to reach for the gun. A puff of smoke in the video suggested that a single shot was then fired, but Wisdom continued to pursue and attack appellant. Within seconds, they both fell to the lobby floor (video, Channels One and Three). The confrontation continued, with both men on the floor, for several more seconds before Wisdom's companion suddenly joined in, kicking appellant. Seconds later, Wisdom lay dead in the lobby. Appellant fled upstairs. Wisdom's companion reached down and appeared to remove an object from Wisdom's pocket before he fled the building through the front door (video, Channel One) . Medical Examiner Melissa Pasquale-Styles conducted the autopsy. Wisdom sustained six gunshot wounds: one to his head, three to his right arm, one to his left shoulder, and one to his chest. All of the shots, except one of the wounds to his arm, had soot or stippling either surrounding the entrance wound or inside the wound itself, indicating that the gun was either in contact, or almost in contact, with Wisdom's body when it was fired (A 425 429) . Al though unable to determine the order in which the shots were fired (A 434), Dr. Pasquale-Styles opined that the head wound, which passed through the base of Wisdom's skull, "may have caused immediate unconsciousness" and loss of "control of [his] movement and [] breathing" (A 433-434). 13 Three spent shell casings recovered on East 19th Street and the six casings recovered in the lobby of 68 East 19th Street were fired from the same 9 mm. gun (A Detective Paul R. Brown: 313 327; Detective 374 378). Blood from both appellant and Morrison was on a sweatshirt recovered from the roof of a nearby building (A Det. Brown: 317-318, 320; Criminalist Kerry Annitto: 400 412). Morrison's DNA was also on the collar and cuffs (A Annitto: 405-406, 412-414). Detective began looking for appellant and Morrison on the day of the crime (A 481) . Several weeks later, appellant was apprehended in Georgia and, after waiving extradition, was brought back to New York (A Det. Joseph Racicot: 365-366; Perry: 481 483, 488). Appellant told Detective Perry, "[Y]ou don't have a gun," "you don't have no evidence," and "so you have no case" (A 484). Defense Counsel's Deferral to Appellant to Make the Strategic Decision Not to Pursue the Justification Defense Counsel Knew Should Be Pursued Early in the trial, defense counsel informed the court that the People's evidence would support justification and extreme emotional disturbance (EED) defenses (A 341). Appellant, however, did not want counsel to advance either defense (A 341) . Counsel stated his belief that appellant had to expressly authorize him to pursue either defense, and therefore that he was constrained not to raise either one (A 341-342). As a result, he informed the court, he would not question any prosecution witnesses "with respect to why Jamel 14 Wisdom went into the building and . . other aspects of the case" (A 341) . Agreeing with defense counsel that the justification decision was up to appellant personally, the court addressed appellant as follows, suggesting that it, like EED, would, if successful, merely reduce the murder charge to manslaughter: [W]e've indicated now in open court that at least as to the justification or self defense claim or the extreme emotional disturbance, both of which in essence say I did it but there was some reason I did it; either I was justified in doing it or I did it because of an extreme emotional disturbance and, therefore, . . . says in essence I'm not guilty of murder, maybe guilty of manslaughter which doesn't carry a life term at the back of it as a murder conviction (A 342-343; emphasis added) . * * * [Y]our attorney says that as a tactical decision which you're entitled to make, that you don't want to pursue those defenses in terms of justification and or extreme emotional disturbance, is that correct? THE DEFENDANT: That is correct (A 343; emphasis added) Defense counsel failed to correct the court's misleading statement about the result of a successful justification defense, and appellant confirmed his reliance on that erroneous information, saying: I am not making any decision ref erring to you reducing it to any manslaughter or anything like that cause this is not me [on the surveillance video] (A 343-344; ernphasis ad_ded) ~ 15 Still, neither the court nor defense counsel told appellant that, unlike extreme emotional disturbance, justification was a complete defense that, if credited, would result in an outright acquittal of the second-degree murder charge. Defense Counsel's Summation, and the Charge, Deliberations, and Verdict Defense counsel argued that the evidence was insufficient to prove appellant's identity as the perpetrator beyond a reasonable doubt (A 504-507). The court submitted four counts to the jury: second degree (intentional) murder of Wisdom, attempted second-degree murder of Talleyrand, second-degree assault of Talleyrand (causing physical injury with a deadly weapon), and second degree criminal possession of a weapon (possession of a loaded gun outside the home or place of business) (A 562 572) . 4 On the first day of deliberations, the jury reviewed the surveillance video and heard a readback of Mi tland' s testimony identifying various people in the video (A 582-588). On the second day of deliberations, the jury reviewed various portions of the video twice, autopsy photographs and diagrams, and photographs of Talleyrand's leg wound (A 593- 598) . The jury also asked for instruction on the intent 4 The court denied the People's request to charge manslaughter in the first degree, which defense counsel opposed, finding there was "not a reasonable view of the facts to support an intent to cause serious physical injury as opposea to" an intent to kill "when we' re talking about someone shot six times one of which the Medical Examiner indicated [was] either a contact bullet or within half an inch of the head" (A 477-478) 16 element of murder and how the "law differentiate[s] 'intent to kill' from 'intent to harm?'" and "[w]ith respect to Wisdom - if he initiated the struggle [and appellant] was acting defensively, does that negate the 'intent to kill'?" (A 593- 594 I 602) • The court told the parties that it was "obliged to tell the [ jurors] they have not been instructed on the law of justification o[r] self defense because there is no claim in this case regarding that and that's not an issue for them to resolve" (A 594) . Defense counsel responded: [A]s far as the murder is concerned the Court is aware that I have been instructed to use only one defense . that the defendant is not the one in the tapes so I can't object to what you are saying . . . but there is a question that they still have to find that he intended to kill him (A 594-595). After an-off the record bench conference, defense counsel added: I object to any reference to self defense or you advising the jury that that issue was not before them and they're not to rule on it. All I would ask that you tell them what happened and what you decide happened you must proof [sic] that it's intent to kill. I object to telling the jury that - that self defense or justification defense is not of their concern (A 595). The prosecutor opposed defense counsel's suggested response as "unresponsive to the jury's note" (A 596) . He 17 also contended that, since defense counsel had said he "wasn't going to raise" justification, it would be in the interest of an appropriate verdict one way or the other for the Court to keep the jury on track and I don't think that allowing [the jurors] to go off afield for something that the People never had an opportunity to even deal with or address (A 596-597). After instructing the jurors on the intent to kill and the intent to cause physical injury (A 598-601), the court told the jurors: [T]here is a concept in the law called justification, self defense. It requires a number of factors to be present. You were not instructed on what is commonly called the law of self defense. What you were instructed on is the issue of intent that is in order for the People to prove beyond a reasonable doubt that the defendant is guilty of Murder in the Second Degree, what they have to prove is that the defendant [] acted with the intent to cause the death of another when that person's conscious objective or purpose is to cause the death of another. That is [] what you have to focus on; whether or not the defendant intended to cause the death of Mr. Wisdom in that causing his death was his conscious objective or purpose (A 602). Defense counsel objected to the supplemental charge, saying, Under the circumstances here with respect to your charge I'm putting in an objection . . which would protect the defendant's right later on if it should get to that or goes to appeal (A 603). Subsequently, the jury requested and reviewed various exhibits, including the video (A 603-606). Toward the end of the second ddy of deliberat the jury asked, "If we cannot reach agreement on one of the 18 charges, what happens with the charges we have agreed upon?" (A 606) The court directed the jury to continue deliberating, saying its "note was wildly premature" (A 608- 609) . The jury reviewed the surveillance video again and listened to a readback of Talleyrand's testimony (A 611-612). On the third day of deliberations, the jury requested and reviewed the surveillance video three more times and received a readback of Detective Brown's testimony about the evidence he recovered on East 19th Street (A 616-618, 621-622). It also requested the definition of intent "in writing" (A 617) . The court responded that it was not permitted to give the jury written instructions and then essentially repeated the supplemental instructions it had given the preceding day as to the intent required for murder and assault, and instructed them on the intent element of attempted murder (A 619-621). The jury acquitted appellant of attempted murder of Talleyrand, but convicted him of second-degree murder of Wisdom, second-degree assault of Talleyrand, and the weapon count (A 624 626) . 5 The Appellate Division Decision On appeal to the Appellate Division, Second Department, appellant argued that he had been deprived of the effective assistance of counsel and due process when his attorney (1) deferred to appellant's wish not to pursue a justification At sentencing, the court dismissed the weapon charge because the verdict sheet erroneously listed the weapon count as third-degree criminal possession of a weapon (A 631-632) . 19 defense, and (2) failed to protect appellant's constitutional public trial right. He also argued that, when a reasonable view of the evidence permitted the jury to find that appellant's use of force was justified, the court failed to respond meaningfully to the jury's request for guidance in failing to give a justification charge, denying appellant a fair trial. On April 29, 2015, a majority of the Appellate Division affirmed appellant's conviction. It held that whether to raise a justification defense "involved a matter that was 'personal' and 'fundamental' to" appellant, which defense counsel was powerless to override. It also found counsel's decision to pursue a misidentification defense, allegedly made after weighing the risk that inconsistent def ens es would reduce appellant's "chances of acquittal," was objectively reasonable (A 10-15) . The majority also held that defense counsel was not ineffective in failing to protest closing the courtroom to appellant's family during jury selection because this Court had not yet decided the issue (A 9) Finally, it held that the court had responded meaningfully to the jury's request for information and had no obligation to instruct on justification, which "had not been at issue during the trial" and would "logically conflict" with appellant's chosen misidentification defense (A 15-22). The Honorable Robert J. Miller and Sylvia Hinds Radix dissented and would have reversed the judgment and ordered a 20 new trial on two grounds. They would have found counsel ineffective for failing to exercise his professional judgment based on his "belief that his client had the absolute final authority over what trial strategy to employ" (A 42-44). In their dissenting opinion, Justice Miller wrote: Defense counsel was mistaken in his belief that he was forestalled from exercising his own professional judgment and compelled to let his client decide matters of tactics and strategy. This is not a case where, "after consulting with and weighing the accused's views along with other relevant considerations," defense counsel made the decision to reject a justification defense in favor of a misidentification defense [cita- tions omitted] . Defense counsel deferred completely to defendant's wishes in this matter because he was under the mistaken impression that he was required to do so [citations omitted] (A 44). The dissenters also would have ordered a new trial based on the court's failure to charge justification in its main charge or its response to the deliberating jury's request (A 30-40) . Noting that the evidence, viewed in the light most favorable to appellant, supported the charge, they believed the court had a duty, arising from appellant's constitutional right to a jury trial and C.P.L. §§300.10(2) and 310.30, to provide a jury with the law pertinent to its verdict (A 34 3 8) . Answering a jury's questions about the applicable law during deliberations, the dissenters wrote, was "no mere 21 matter of conventional procedure," but "an integral part of the structure of an adequate trial" (A 38) . The recorded footage from the surveillance cameras gave the jurors what amounted to a firsthand view of the final altercation and, together with other evidence at trial, provided reason to conclude that the defendant was justified in firing the gun to protect himself . (A 38). Therefore, the court had a duty to charge justification in response to the jury's request for guidance on how justification related to its determination of the intent to kill element of murder (A 34-35, 38). ARGUMENT POINT I APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN (1) COUNSEL AND THE COURT, MISTAKENLY BELIEVING THAT APPELLANT HAD THE SOLE AUTHORITY TO MAKE THE CLASSIC TACTICAL DECISION OF WHAT DEFENSES TO RAISE, DEFERRED TO APPELLANT'S WISH NOT TO PRESENT THE JUSTIFICATION DEFENSE COUNSEL KNEW SHOULD BE PRESENTED; AND (2) COUNSEL FAILED TO PROTECT APPELLANT'S FUNDAMENTAL RIGHT TO A PUBLIC TRIAL. A criminal defendant's constitutional right to the effective assistance of counsel entitles him to the benefit of his attorney's tactical and strategic expertise. Here, the People presented a video of the fat al shooting in which appellant's friend identified him. That video showed the deceased and his companion pursue appellant into his building lobby and attack him. After the deceased slammed appellant 22 against the wall, the two fell and struggled on the floor for several seconds, during which the deceased's companion repeatedly kicked appellant. Within seconds, the deceased lay dead. Thus, as defense counsel realized, this case cried out for a justification defense and a mistaken identification defense, standing alone, was bound to fail. Nevertheless, because counsel and the court incorrectly believed that appellant had sole control over the classic strategic decision of what defense to raise, only a misidentification defense. He counsel raised forwent the justification defense, moreover, based on a decision appellant made in reliance on the court's incorrect advice about the consequences of successfully raising a justification defense, which misadvice his attorney failed to correct. Counsel's error carried over into deliberations when the jury specifically requested guidance as to justification but counsel still requested no justification charge. Appellant was thus denied his right to his attorney's expertise in making a quintessentially tactical decision based on counsel's professional judgment and knowledge of the law. Counsel also failed to object when the court ejected the audience, which included appellant's family, from the courtroom during jury selection. Under the federal and state constitutions, a criminal defendant has the right to the effective assistance of counsel. U.S. Const., Amends. VI, XIV; N.Y. Const. Art . .L, §6. The constitution assures that, in any criminal 23 prosecution, the accused is not left to his own devices in facing the "prosecutorial forces of an organized society." Kirby v. Illinois, 406 U.S. 682, 689 (1972). The federal courts have established a two-pronged test to measure claims of ineffectiveness as a violation of the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687-688 ( 1984) . The defendant must show both that "counsel's representation reasonableness fell below an objective standard of . under prevailing professional norms," Id. at 688, and that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. The test in New York employs a "flexible" standard that assesses whether the "evidence, the law, and the circumstances of the particular case, viewed in totality and as of the time of the representation," show that the attorney failed to provide "meaningful representation." People v. Baldi, 54 N.Y.2d 137, 147 (1981); People v. Henry, 95 N.Y.2d 563 (2000). Here, under either standard, counsel's failures deprived appellant of the effective assistance of counsel and a fair and public trial. (A) To assure fundamental fairness in the adversarial criminal justice system, a defendant is entitled to counsel who draws on his or her professional skill, expertise, and judgment to make tactical and strategic decisions on his 24 behalf. Strickland, 466 U.S. at 688 (allocating to defense counsel the ultimate authority to make strategic and tactical decisions serves a trial's essential function as a "reliable adversarial testing process"). To that end, defense counsel "has - and must have - full authority to manage the conduct of the trial." Taylor v. Illinois, 484 U.S. 400, 417-418 (1988); see also United States v. Cronic, 466 U.S. 648, 654, 656 (1984) (assistance of one versed in the "intricacies of the law" is needed to assure that the "prosecution's case encounters the crucible of meaningful adversarial testing"). A criminal defendant cannot be expected to protect himself. Even the intelligent and educated layman has small and sometimes no skill in the science of law. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. Powell v. Alabama, 287 U.S. 45, 69 (1932) As the Supreme Court has recognized, only by exercising the ultimate authority to manage the case and make strategic and tactical decisions "can counsel protect[] [the] accused from conviction resulting from his own ignorance," Zerbst, 304 U.S. 458, 465 (1938), and render the effective assistance of counsel that the constitution and the adversarial criminal justice system demand. also McMann 25 v. Richardson, 397 U.S. 759, 771 ftn. 14 (1970); Strickland, 466 U.S. at 684. The critical importance of counsel's professional skill, knowledge, and judgment in affording a criminal defendant a fair trial is reflected in the division of decision-making power between the accused and his attorney that the Supreme Court enunciated in Jones v. 463 U.S. 745 (1983). When represented by counsel, the accused retains ultimate control of certain fundamental decisions. Id. at 751. These include "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Id. Given "the superior ability of trained counsel /1 and counsel's "professional judgment, /1 Jones, 463 U.S. at 751, however, counsel has not only the authority to manage the day- to-day conduct of the defendant's case, but also the ultimate authority to make strategic and tactical decisions. See New York v. Hill, 528 U.S. 110, 114-115 (2000) ("Absent a demonstration of ineffectiveness, counsel's word on such matters [of trial strategy] is the last"); Taylor, 484 U.S. at 418 (aside from the rights identified in Jones v. Barnes, the "the lawyer has - and must have - full authority to manage the conduct of the trial" and, except in the "exceptional cases in which counsel is ineffective, the client must accept the consequences of the lawyer's" tactical and strategic decisions); Faretta v. California, 422 U.S. 806, 820-821 (1975) ("when a defendant chooses to have a lawyer manage and present his case, law and tradition [] allocate to the counsel 26 the power to make binding decisions of trial strategies in many areas"). In Gonzalez v. United States, 553 U.S. 242, 250-251 (2008), the Supreme Court reaffirmed defense counsel's duty to decide "tactical considerations of the moment and the larger strategic plan for the trial." The Court explained: The presentation of a criminal defense can be a mystifying process even for well-informed laypersons. This is one of the reasons for the right to counsel ... Numerous choices affecting conduct of the trial . . . depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiency and fairness that the trial process is designed to promote. Id. at 249 (emphasis added). As Justice Harlan expressed it in his partially concurring opinion in Brookhart v. Janis, 384 U.S. 1, 8 (1966): I believe a lawyer may properly make a tactical determination of how to run a trial even in the face of his client's incomprehension or even explicit disapproval. If a defendant desires control over tactical and strategic decisions, he has the right to represent himself. By accepting representation by counsel, however, he consents to the division of decision-making authority allocating strategic and tactical decisions to counsel. 422 U.S. at 820-821. A contrary rule would clearly "strike[] at 27 the heart of the attorney-client relationship," U.S. at 417, and "serious [ly] undermine[] the Taylor, 484 ability of counsel to present the client's case in accord with counsel's professional evaluation." Jones, 463 U.S. at 751. This Court has similarly recognized that the right to counsel is "an essential ingredient" of our criminal justice system, which is "rooted deeply in our concept of a fair trial within the adversarial context." People v. 91 N.Y.2d 708, 711 (1998). It has therefore repeatedly agreed with the division of decision-making power enunciated in~== v. Barnes. See People v. Davis, 13 N.Y.3d 17, 30 (2009) ("well established" that a defendant, "having accepted the assistance of counsel, retains authority over only certain fundamental decisions regarding the case" such as "whether to plead guilty, waive a jury trial, testify in s or her own behalf or take an appeal"); People v. White, 73 N.Y.2d 468, 478 (1989) (same); People v. Ferguson, 67 N.Y.2d 383, 390 (1986) (same). Thus, this Court has repeatedly held that defense counsel has the ultimate authority to make strategic or tactical decisions, because they require a lawyer's professional knowledge, judgment, and skill. See, ~. People v. Rodriguez, 95 N.Y.2d 497, 501 502 (2000) ("By accepting counseled representation, a defendant assigns control of much of the case to the lawyer, who, by reason of training and experience, is entrusted with sifting out weak arguments, charting strategy and making day-to day decisions over the 28 course of the proceedings") (emphasis added); People v. Colon, 90 N.Y.2d 824, 825-826 (1997) ("With respect to strategic and tactical decisions concerning the conduct of trials, defendants are deemed to repose decision-making authority in their lawyers" and "do not retain a personal veto power over counsel's exercise of professional judgments") ; People v. Rosen, 81 N.Y.2d 237, 244 (1993) ("the accused ordinarily plays a relatively passive advocacy role and is bound by the innumerable strategic choices made by counsel during trial"); People v. Jordan, 96 A.D.2d 1060, 1061 (2d Dept. 1983), 62 N.Y.2d 825 (1984) ("An attorney, subject to the constitutional limitation of effective assistance of counsel, has the right to make the day-to day decisions governing the case and if he, as a matter of professional judgment, decides not to press a certain issue, it will be binding on the client") . Other jurisdictions have also held that defense counsel has the ultimate authority to control trial strategy. See, ~, Outten v. State, 720 A.2d 547, 557 (Del. 1998); Van Alstine v. State, 263 Ga. 1 (1993); Ortiz v. State, 866 S.W.2d 312, 315 (Tex. Crim. App. 1993); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986); State v. DeGuzman, 68 Haw. 14, 17 (1985) i Berryhill People v. Hamilton, v. Ricketts, 242 48 Cal.3d 1142, 1162 (1989); Ga. 447 (1978); People v. Schultheis, 638 P.2d 8 (Supreme Court of Colorado, En Banc 1981); State v. Pratts, 365 A.2d 928, 92 (N.J. 1976) (per curiam); Lanier v. State, 486 P.2d 981 (Alaska 1971). 29 The American Bar Association's Criminal Justice Standards for the Defense Function (4th ed., 2015), Standard 4-5.2, entitled "Control and Direction of the Case," provides that the decisions "ultimately to be made" by the defendant include "whether to proceed without counsel," "what pleas to enter," "whether to accept a plea offer," "whether to cooperate with or provide substantial assistance to the government," whether to waive a jury trial," "whether to testify in his or her behalf, 11 "whether to speak at sentencing," whether to appeal, 11 and "any other decision that has been determined in the jurisdiction to belong to the client." ABA Standard 4. 5-2 (b) . But, ABA Standard 4-5.2(d) provides: Strategic and tactical decisions should be made by defense counsel, after consultation with the client where feasible and appropriate. Such decisions include how to pursue plea negotiations, how to craft and respond to motions and, at hearing or trial, what witnesses to call, whether and how to conduct cross- examination, what jurors to accept or strike, what motions and objections should be made, what stipulations if any to agree to, and what and how evidence should be introduced. Rule 1.2(a) of New York's Rules of Professional Conduct, which separates the "objectives" of an attorney's representation from the "means" of achieving those objectives, states: Subject to the provisions herein, a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. In a criminal case, the 30 lawyer shall 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. N.Y.R.P.C. l.2(a). Rule 1.2(a), therefore, effectively allocates to defense counsel ultimate control, after consultation with the defendant, of tactical and strategic decisions: the "means" to achieve the defendant's objectives. Thus, as between defense counsel and his client, both case law and professional standards uniformly allocate to defense counsel the final say in determining strategic and tactical matters. Courts have long recognized that the decision to rely on a particular theory of defense is a matter of trial strategy within defense counsel's control, which will be upheld unless it is unreasonable. Wainright v. Sykes, 433 U.S. 72, 93 ( 1977) (tactical decisions include "what defenses to develop" [Burger, C.J., concurring]); United States v. Vegas, 27 F.3d 773, 777 (2d Cir. 1994) (decision to pursue an entrapment defense was a matter of "trial strategy"); Nieves v. Kelly, 990 F.Supp. 255, 263 (S.D.N.Y. 1997) (defense attorney's deci- sion not to raise an alibi defense fell "squarely in ambit of trial strategy") ; Smith v. United States, 1993 WL 485606 (S.D.N.Y. 1993) (defense counsel's decision to raise a particu- lar defense was a "tactical" one based on the circumstances of the case) ; People v. Ellis, 81 N. Y.2d 85, 856-857 (1993) (defense counsel's chosen theory of defense was a matter of "trial strategy"); People v. Mikell, 217 Ill.App.3d 814, 31 821 (1991) (defense counsel's decision to advance a justification defense rather than voluntary manslaughter was a matter of "strategy"); People v. Glover, 165 A.D.2d 880 (2d Dept. 1990) (attorney made "strateg [ic]" decision to attempt to prove that defendant bought drugs for personal use, not to sell); People v. Gallardo, 112 Ill.App.3d 764, 770 ( 1983) (decision not to advance justification defense was a "matter of trial tactics") ; People v. Miller, 7 Cal. 3d 562 (1972) (decision to advance an alibi defense was a tactical and strategic decision made by defendant's attorney) Allocating to counsel the ultimate authority to determine which theories of defense should be advanced to achieve the defendant's objectives serves two vital, interrelated purposes. It affords an accused the benefit of an attorney's expert tactical and strategic judgment, which is necessary to protect him from making foolish tactical decisions out of his ignorance. It also protects his fundamental right to a fair t al during which the prosecution's case is tested by a trained adversary. Gonzalez, 553 U.S. at 249 ("The presentation of a criminal defense can be a mystifying process even for well-informed laypersons"); Kirby v. Illinois, 406 U.S. 682, 689 (1972) (constitution assures that, in any criminal prosecution, the accused is not left to his own devices); United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975) (criminal trial is "not a game" in which "unarmed prisoners;; are sacrificed to prosecutorial "gladiators") . 32 Counsel's ultimate authority over strategic decisions means that his choice controls (unless unreasonable) , even if counsel has not consulted his client about it or if the client affirmatively disagrees with his attorney's decision. In Lewis v. Alexander, 11 F.3d 1349, 1350 (6th Cir. 1993), for example, defense counsel decided to advance only a theory that the victim's death was accidental, not that it resulted from intervening medical maltreatment. Counsel made that decision without discussing it with his client. . at 1350- 1351. Nevertheless, the Court found counsel effective. It noted that ABA Standard 4-5. 2 recognizes that the determination of the defense theory is within the "exclusive province of defense counsel to make after consultation with his client." Id. at 13 54. And it concluded that counsel, while having the duty to consult with his client about important matters, has the ultimate authority to "exercise his professional judgment with respect to the viability of certain defenses" and does so without "running afoul of the Sixth Amendment." Id. at 1354. In People v. Jones, 53 Cal.3d 1115 (1991), defense counsel and the defendant, acting as co counsel, presented conflicting defenses at a capital murder trial. The defendant attempted to cast doubt on his identity as the perpetrator, while defense counsel asserted that the defendant lacked the requisite mental state to be convicted of the offenses. Id. at 1138 1139. On appeal, the Court upheld the conviction on 33 the basis that defense counsel retained "complete control" over "all tactical and procedural decisions." Id. at 1139. In People v. Ramey, 152 Ill.2d 41, 53 (1992), the defendant testified at a suppression hearing and denied any involvement in a murder. At trial, his attorney advanced a justification defense over Ramey's objection. On appeal, the Court rejected Ramey's ineffective assistance of counsel claim, holding that, beyond the four decisions allocated to the defendant personally in Jones v. and the 1986 ABA Standards: trial counsel has the right to make the ultimate decision with respect to matters of tactics and strategy after consulting with his client. Such matters include the defense to be presented at trial [citations omitted] 152 Ill.2d at 54 (emphasis added). Recently, in People v. Colville, 20 N.Y.3d 20 (2012), this Court addressed the division of authority between counsel and the accused with respect to whether to request that a lesser included offense be charged to the jury. There, defense counsel had asked the court to submit two lesser included offenses, first- and second-degree manslaughter, but the trial court denied the request because the defendant did not want them. Id. at 24 26. rejected the notion that decisions are the defendant's to make because they either carry a risk of conviction or potentially "dilute[] the force and effect of the defense" he personally favors. 34 (dissenting opin.). Recognizing that the decision to request submission of a lesser included offense is a complicated one involving an evaluation of the law and the evidence, the Court held that it is a matter of trial strategy and tactics, requiring defense counsel's expertise in determining the best course of action. Citing Jones v. Barnes and ABA Standard 4- 5.2, the Court stated: [Defense counsel] repeatedly voiced his professional judgment that it was in his client's best interests for the jury to be instructed on these lesser-included offenses. The judge, however, made plain that he would be guided solely by defendant's choice in the matter, despite the defense attorney 1 s clearly stated views and advice to the contrary. This was error because the decision was for the attorney, not the accused, to make. By deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him. (emphasis added) Such decisions correctly reflect that selecting a theory of defense involves quintessentially strategic and tactical matters and comport with the division of authority enunciated in Jones v. Barnes and the ABA standards, as well as voluminous case law. They are consistent with New York's Rules of Professional Conduct and they protect defendants by making defense counsel the final arbiter of decisions that require an attorney's professional knowledge, skill, and judgment in fashioning the means to achieve the client's desired ends. See also Miller, 7 Cal. 3d at 571 (applying "settled rule" that strategic and tactical matters "remain[] 35 committed to counsel's judgment" to uphold defense counsel's decision to rely exclusively on alibi defense) . Thus, the choice of defense theory, a tactical matter involving defense counsel's legal expertise and professional judgment, must fall within defense counsel's ultimate control. A contrary rule, allowing the defendant personally to override counsel's decision as to strategic matters, would "seriously undermine[] the ability of counsel to present the client's case in accord with counsel's professional evaluation," Jones v. Barnes, 463 U.S. at 751, and disserve the client's fair trial right the "very goal of vigorous and effective advocacy." Id. at 754; see also Johnson v. Zerbst, 304 U.S. 458, 465 (1938); Benevento, 91 N.Y.2d at 711 (right to counsel is "an essential ingredient" of our criminal justice system, "rooted deeply in our concept of a fair trial within the adversarial context"). People v. DeGina, 72 N.Y.2d 768 (1988), Petrovich, 87 N.Y.2d 961 (1996), on which and People v. the Appellate Division majority relied, are not to the contrary. In DeGina, the trial court charged the affirmative defense of entrapment over defense counsel's objection. 72 N.Y.2d at 773-774. This Court reversed, holding that placing an affirmative burden of proof on the defense imperrnissibly interfered with DeGina's right to chart his own defense. Id. at 776 777. In holding that the court could not overrule the defense, the Court in DeGina did not speak to the division of authority between the defendant and his attorney and there is no reason to believe 36 that they disagreed. Therefore, DeGina sheds no light whatsoever on the issue raised in this case. In Petrovich, 87 N.Y.2d at 963, this Court held that the ultimate decision of whether to request submission of extreme emotional disturbance (EED) belonged to the defendant, not to defense counsel. But EED, like entrapment, is an affirmative defense that the defense must prove by a preponderance of the evidence. People v. McManus, 67 N.Y.2d 541, 546 (1986); P.L. §125.25 (1) (a). Moreover, EED, unlike justification, requires exploration and personalized consideration of the defendant's mental health, which potentially exposes him to adverse personal consequences, such as revelation of his innermost secrets that only he and his mental health provider may know, and even long-term civil commitment. Additionally, since EED involves a "mental infirmity," People v. Berk, 88 N.Y.2d 257, 263 (1996), and psychiatric evidence, by raising an EED defense, the defendant necessarily waives his fundamental right to silence, because the court can compel him to submit to an examination by the People's expert. People v. Diaz, 15 N.Y.3d 40, 47 (2010). Therefore, EED involves a deeply personal decision that is appropriately allocated to the defendant. Petrovich, 87 N.Y.2d at 963; see also People v. McLucas, 15 N.Y.2d 167 (1965) (defendant's right to silence deemed fundamental) . Justification stands in stark contrast to an EED defense. Unlike EED, justification does not trigger the prosecution's right to examine the accused or a waiver of his fundamental 37 right of silence. Nor does it risk revealing the defendant's innermost secrets or expose him to adverse personal consequences, as an EED defense may. The decision of whether to advance a justification defense involves the attorney's analysis of the evidence and the risks and benefits of possible defenses an analysis that unquestionably utilizes the attorney's knowledge of the law and his professional skill and judgment. In Colville, the People contended that a request for a lesser-included instruction was analogous to Petrovich, and the submission of EED to the jury. Colville, 20 N.Y.3d at 31 32. However, the Court disagreed. It explained that, unlike EED, which a court is not permitted to charge over a defendant's objection, a court has the discretion to submit a lesser-included offense if there is a reasonable view of the evidence supporting a finding that the defendant committed the lesser offense but not the greater. Moreover, when a reasonable view of the evidence supports submission of a lesser-included offense, the court must submit it if requested by either party. Id. at 31. Similarly, a court has the power to charge justification in the absence of the defendant's request. See McManus, 67 N.Y.2d at 546 (when a reasonable view of the evidence, viewed in the light most favorable to the accused, would permit the jury to find that the accused's use of force was justified, the court should instruct the jury on justification); People v. Padgett, 60 N.Y.2d 142, 144-145 (1983) (same); People 38 v. Copeland, 216 A.D.2d 55, 57 (pt Dept. 1995) (same); People v. Zurita, 76 A.D.2d 871 (2d Dept. 1980) (same); People v. Rivera, 74 A.D.2d 589 (2d Dept. 1980) (same). Moreover, in certain circumstances, the court is permitted to charge justification over the defendant's objection. See People v. Magliato, 68 N.Y.2d 24, 28-29 (1986) (court correctly ruled that it would charge justification over defendant's objection if defense counsel argued in summation that defendant was justified in drawing weapon, which he claimed accidentally discharged); People v. Giamanco, 188 A.D.2d 547 (2d Dept. 1992) (when defendant testified that gun "went off" when deceased tried to grab it from defendant during a fight, court correctly charged justification over the defendant's objection because there was a reasonable view of the evidence to support it) . In the instant case, defense counsel informed the court that, based on the evidence, he wanted to pursue the defense of justification, but that appellant refused to authorize him to do so. Counsel's strategic decision that justification should be advanced was clearly correct. Indeed, it was the obvious and only viable defense. A person may use physical force in self-defense when and to the extent he reasonably believes it is necessary to defend himself against the use or imminent use of physical force against him. P.L. §35.15(1). He may use deadly physical force upon a person he reasonably believes is using or about to use deadly physical force. P.L. §35.15(2). A trial court 39 must instruct a jury on the defense of justification if any reasonable view of the evidence, viewed in the light most favorable to the accused, would allow the fact finder to decide that the defendant's actions were justified. McManus, 67 N.Y.2d at 546; Padgett, 60 N.Y.2d 142, 145 (1983); People v. White, 16 A.D.3d 440 (2d Dept. 2005) Testimony by prosecution witnesses describing the events immediately leading up to the fatal shooting and the surveillance video entered into evidence unambiguously showed that, after Talleyrand was shot in the leg, appellant retreated into his building. As he did so, Talleyrand's friend, Jamel Wisdom, and his unidentified companion pursued appellant into the lobby, where Wisdom confronted and at tacked him. Backing appellant up, Wisdom appeared to reach for the gun as he slammed appellant against the wall. A single shot appears to have been fired, but Wisdom continued his attack and both combatants fell to floor. As they struggled there, Wisdom's companion repeatedly kicked appellant. later, Wisdom lay fatally shot. Seconds Even aside from what the video showed, appellant had every reason to fear that Wisdom and his companion would use deadly physical force against him. Minutes earlier, Talleyrand and Wisdom, along with a group of their friends, had confronted and attacked appellant, making him bleed. Appellant believed that one the group was armed with a knife. According to Talleyrand, appellant also knew that Talleyrand had previously been charged with gun possession. Under all 40 these circumstances, any competent defense attorney would have realized as defense counsel did that a justification defense should be pursued. Defense counsel also correctly determined that a misidentification defense, standing alone, had virtually no chance of success. Appellant's friend, Khadija Mitland, who was present and saw much of the confrontation preceding the shooting, identified appellant not only as a participant in that confrontation, but also in the video of the fatal encounter. Defense counsel acknowledged that, given appellant's refusal to agree to advance a self-defense claim, he would not question any prosecution witnesses "with respect to why Jamel Wisdom went into the building and . other aspects of the case" (A 341) . Nor did he raise justification in his closing remarks or request a justification charge, although the People's direct case alone, even without the additional favorable facts defense counsel might have been able to elicit on cross-examination, defense. presented a strong justification Finally, even during deliberations, when the jury explicitly asked for an instruction on justification, unambiguously signaling that the jurors questioned whether appellant acted in self-defense, defense counsel did not request a justification charge. Saying, as "the court is aware," "I have been instructed to use only one defense" (A 594-595), counsel again deferred to his client as to the basic 41 tactical decision of what defense to raise. Counsel could not have made clearer that he still believed that justification was the defense that he should have raised. Had counsel properly relied on his own professional judgment, the jury might well have agreed that appellant was justified and acquitted him of Wisdom's murder. Moreover, the court affirmatively misled appellant by suggesting that, if either EED or justification was credited by the jury, he would be convicted of manslaughter. In the colloquy between the court and appellant following defense counsel's assertion that appellant refused to authorize him to present either an EED or justification defense, the court discussed the defenses together and said: [T]he justification or self defense claim or the extreme emotional disturbance, both of which in essence say I did it but there was some reason I did it; either I was justified in doing it or I did it because of an extreme emotional disturbance and, therefore, . says in essence I'm not guilty of murder, maybe guilty of manslaughter which doesn't carry a life term at the back of it as a murder conviction (A 342-343). Indeed, as the record shows, appellant clearly misunderstood what the result of a successful justification defense would be - a misunderstanding that neither the court nor defense counsel dispelled. Following the court's misleading statement, appellant said that he did not want a justification defense because "I am not making any decision referring to you reducing it to any manslaughter or anything like that" (A 343 -344) . Clearly, appellant misunderstood that 42 a successful justification defense would lead to an acquittal, not merely reduction to a lesser crime. Nonetheless, defense counsel and the court still deferred to appellant's wish not to raise justification. Thus, not only did counsel inappropriately defer to his client's misguided decision not to raise a justification defense, he was complicit in giving the misadvice that likely led to that decision. In affirming, the Appellate Division majority reasoned that defense counsel "appreciated" that a justification defense was logically at odds with misidentification and "could well reduce [appellant's] chances of acquittal by rendering his position less credible in the eyes of the jury" A ll) . That reasoning is refuted by the record, which unambiguously shows that counsel failed to raise justification not because he was trying to maximize appellant's chances of an acquittal, but solely in deference to appellant's wishes. See People v. Lane, 60 N.Y.2d 748, 750 (1983). As the dissenters wrote, on this record, counsel's decision resulted from his incorrect belief that it was within appellant's sole power to make that decision (A 44) Having erroneously deferred to appellant to make a critical strategic decision and permitted appellant to dictate that justification would not be advanced, defense counsel argued in summation only that the People failed to prove appellant's identity as the perpetrator - a defense that had virtually no chance of succeeding given the video and 43 Mitland's identification of appellant, who was her friend, on it. "That a person who happens to be a lawyer is present at trial alongside the accused . is not enough to satisfy" the right to effective assistance of counsel. Strickland, U.S. at 685. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney . who plays the role necessary to ensure that the trial is fair. Clearly, the presence of an attorney acting merely as a defendant's alter-ego does not satisfy the constitutional right to counsel. By deferring to appellant to make the most important tactical decision counsel faced, whether to present a justification defense, counsel failed to fulfill his constitutional role, deprived appellant of a meaningful adversarial testing of the People's proof, and rendered the t al unfair and its outcome unreliable. Thus, appellant was denied the effective assistance of counsel and due process. Benevento, 91 N.Y.2d at 711 ("The fundamental right to the 'effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial'"). 44 (B) Defense counsel also failed to protect appellant's right to a public trial, as provided by the Sixth Amendment of the United States Constitution and Art. I, §6, of New York's Constitution. In all criminal trials, the accused has the fundamental right to a public trial. People v. Jelke, 308 N.Y. 56, 61 (1954). The public trial right, "rooted in our common-law heritage," People v. Colon, 71 N.Y.2d 410, 414 (1988), serves as a "restraint on possible abuse of judicial power." In Re Oliver, 333 U.S. 257, 270 (1948). Moreover, [W]ithout exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged. Re Oliver, 333 U.S. at 271 272. Judicial proceedings may be closed when necessary, but the party seeking closure must advance an overriding interest that is likely to be prejudiced, the closure must no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and must make findings adequate to support the closure. People v. Martin, 16 N.Y.3d 607, 611 (2011), quoting, Waller v. Georgia, 4 6 7 U.S. 3 9, 4 8 ( 19 84) . Nearly a year before the instant case was tried, the United States Supreme Court held in Presley v. Georgia, 558 U.S. 209, 213 214 (2010), that the public trial right extends 45 to jury selection. In that case, the trial court excluded Presley's uncle during voir dire out of concern that there was not enough space in the courtroom and that the uncle would "intermingle" with venire members. Id. at 211. The Supreme Court held that the court had denied Presley his right to a public trial when it ejected his uncle from voir dire without sua sponte considering reasonable alternatives to closure. Id. at 215. In reaching this decision, the Supreme Court rejected the state court's conclusion that whether trial courts must consider, sua sponte, reasonable alternatives to closure was still an open question. Its statement in Waller that "the trial court must consider reasonable alternatives to closing the proceedings" had resolved that question. Presley, 558 U.S. at 214. Moreover, "[i]f that statement le[ft] any room for doubt," the Court had eliminated it in Press-Enterprise v. California, 464 U.S. 501, 511 (1984), when it even more explicitly stated that the trial court had an obligation to consider, sua sponte, reasonable alternatives to closure, regardless of whether the party objecting to closure suggested them. Presley, 558 U.S. at 214. This Court recently affirmed these long-established principles in Martin, 16 N.Y.3d at 611, and People v. Alvarez, 20 N.Y.3d 75 (2012). In Martin, the trial court excluded the defendant's father from the courtroom during jury selection on the grounds that every seat was needed for the potential jurors and that it did not want him communicating with them. 46 Id. at 610. This Court reversed, holding that the "failure to consider any alternate accommodations violated defendant's right to an open trial, regardless of the reasons for closure" and regardless of whether the parties suggested any alternate accommodations. Martin, 16 N.Y.3d at 612. Similarly, in Alvarez, 20 N.Y.3d at 79, the court excluded defendant's parents pursuant to its standard voir dire practice in "every trial" of asking "the family to step out and as soon as seats are available, they are [the] first ones offered seats." Citing Martin and Presley, this Court again ordered a new trial because the court had failed to consider any alternative to closure. Id. at 81-82. Like in Martin and Alvarez, the instant case was squarely controlled by Presley. Al though Presley had been decided about 10 months earlier, defense counsel failed to object when the court cleared the courtroom to fill all available seats with potential jurors, informing those in the audience, which included appellant's sister and apparently additional family members, that "[t]here will be no seating for you when the panel walks in the room. You have to wait outside" (A 94-95). The court's wholesale exclusion of the audience, including appellant's family members, was clearly overly broad under well-established New York, as well as federal, law. Our courts had long held that, even when closing the courtroom to members of the general public is warranted to protect an "overriding interest," excluding a defendant's family or their "equivalents" is improper unless the prosecution can show 47 specific reasons for doing so. People v. Nazario, 4 N.Y.3d 70, 72-73 {2005); People v. Nieves, 90 N.Y.2d 426, 430 (1997); People v. Guiterez, 86 N.Y.2d 817 (1995); People v. Kin Kan, 78 N.Y.2d 54, 58-59 {1991). Neither the prosecution nor the court even suggested that such a showing could be made here. Moreover, the court failed to make any record findings concerning possible alternatives to complete closure, such as allowing some of appellant's family members to remain in the courtroom. Presley, 558 U.S. 209; Alvarez, 20 N.Y.3d at 81- 82; Martin, 16 N.Y.3d at 612; Guiterez, 86 N.Y.2d 818 ("excluding defendant's close family members was broader than constitutionally tolerable and, thus, constituted a violation of defendant's overriding right to a public trial") Thus, as any defense attorney familiar with the controlling law should have realized, the court's wholesale exclusion of the audience from the courtroom during jury selection violated appellant's constitutional right to a public trial. Presley, 558 U.S. 209; Alvarez, 20 N.Y.3d at 81-82; Martin, 16 N.Y.3d at 612. Protecting appellant's public trial right was important to appellant because a public trial "keep[s a defendant's] triers keenly alive to a sense of their responsibility," Waller, 467 U.S. at 46, and "[j]ury selection is the primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice or predisposition about the defendant's culpability." Gomez v. United States, 490 U.S. 858, 873 (1989). If questioned in a courtroom open to the public in 48 general, and appellant 1 s family in particular, it is possible that potential jurors will be more forthcoming about their biases. Therefore, exclusion of all spectators during jury selection necessarily "calls into question the fundamental fairness 11 of the accused 1 s trial. Owens v. United States, 483 F.3d 48, 65 (l8t Cir. 2007). Especially given the Supreme Court / s unambiguous decision in Presley, defense counsel should have objected to the court 1 s closure during jury selection and failure to consider reasonable alternatives, regardless of whether this Court had decided Martin and Alvarez. No possible strategic reason could have justified defense counsel / s failure to protect appellant 1 s fundamental public trial right. See Owens, 483 F. 3d at 64 (defense attorney's failure to object to the closure of the courtroom during jury selection deprived defendant of a substantial fair trial right and could not have been sound trial strategy) . As a result, the failure to protect appellant 1 s public trial right denied him the effective assistance of counsel. * * * In sum, defense counsel 1 s critical failures denied appellant the effective assistance of counsel, and require reversal and a new trial. 49 POINT II THE COURT VIOLATED ITS DUTY TO RESPOND MEANINGFULLY TO THE JURY'S REQUEST FOR INSTRUCTION ON THE LAW WHEN, IN ANSWERING ITS REQUEST FOR GUIDANCE ON HOW JUSTIFICATION AFFECTED APPELLANT'S CULPABILITY FOR MURDER, IT TOLD JURORS NOT TO CONCERN THEMSELVES WITH THE DEFENSE AND TO FOCUS INSTEAD SOLELY ON WHETHER HE INTENDED TO KILL THE DECEASED. On the second day of deliberations, the jury sent a note to the court requesting an instruction on the relationship between self-defense and the intent to kill necessary to find appellant guilty of murder. In response, the court instructed the jurors not to concern themselves with whether appellant acted in self-defense and instead to focus solely on whether he intended to kill the deceased. The court's response was not meaningful and undermined appellant's right to a fair trial. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6. An integral part of the constitutional right to a jury trial is a jury that is properly charged on the material legal principles applicable to its determination of whether the People proved the defendant's guilt beyond a reasonable doubt. Andres v. United States, 333 U.S. 740 (1948); People v. Ahmed, 66 N.Y.2d 307, 311 (1985) When a deliberating jury requests instruction or information on the law, . or with respect to any other matter pertinent to the jury's consideration of the case [,] . the court . must give such requested information or instruction as the court deems proper. C P.L. §310.30. 50 A court's response to a deliberating jury's request for guidance is critically important because the response will likely be "determinative of the outcome of the case, coming as [it does] in response to questions raised by the jurors themselves." People v. Ciaccio, 47 N.Y.2d 431, 437 (1979). Recognizing the critical importance of a response to a deliberating jury's request, this Court has repeatedly held that, while a trial court has discretion in framing its answer, its response must be meaningful. People v. Almodovar, 62 N.Y.2d 126, 131 (1984); People v. Malloy, 55 N.Y.2d 296, 302 (1982). It is well-established that a response is not meaningful when a court fails to respond at all. People v. Lourido, 70 N.Y.2d 428, 434-435 (1987) (court's failure to comply with jury's readback request was not a meaningful response); People v. Gezzo, 307 N.Y. 385, 396 (1954) (reversible error when court "gives no answer at all or an answer that fails to answer" a deliberating jury's question); People v. Gonzalez, 293 N.Y. 259, 262 (1944) (refusal to respond to jury's confusion about the law) People v. Woods, 290 A.D.2d 346 (1st Dept. 2002) (refusal to answer jury's questions about how to assess voluntariness of defendant's statement); People v. Henning, 271 A.D.2d 813, 814-815 (3d Dept. 2000) (refusal to instruct that defendant's mere presence was insufficient for drug sale or to answer reworded inquiry because it was "hypothetical"). In the seminal case of Gonzalez, 293 N.Y. 259, where the jury had to decide whether a killing was premeditated, the 51 jurors asked, "If a man put a gun in his pocket for protective purposes originally, and subsequently used it in the commission of a crime, would that constitute premeditation?" The court responded that it was "unable to answer [the] question in that form" and offered to reread its charge. Id. at 261. Reversing because that response amounted to a "refusal to clarify the [jurors'] doubts," Id. at 261, this Court held that §427 of the Code of Criminal Procedure, the precursor to C.P.L. §310.30, "leaves to the trial courts no discretion whatever as to whether or not to answer a proper question from the jury " Id. at 262. Providing information the jury seeks, the Court explained, is "an integral part of the structure of an adequate trial," Id. at 263, and "if to a proper question the court gives no answer at all or an answer that fails to answer, then the error is reversible." Id. at 262. The instant case is controlled by Gonzalez. On the second day of deliberations, the jury, which had repeatedly reviewed a surveillance video showing the shooting death of Jamel Wisdom and requested supplemental instruction on the intent element of murder, requested instructions about the relationship of intent and self-defense: "[w]ith respect to Wisdom if he initiated the struggle [and appellant] was acting defensively, does that negate [the] 'intent to kill'?" (A 594) . In response, the court failed to give the jury the guidance it requested and told the jurors not to consider justification. It said "there is a concept in the law called 52 justification, self-defense," which "requires a number of factors to be present" (A 602), but that the jurors were not charged on justification and should "focus on . . whether or not [appellant] intended to cause the death of Mr. Wisdom in that causing his death was his conscious objective or purpose" (A 602) . The jury's question about self-defense was clearly pertinent to its determination of appellant's guilt or non- guilt. Therefore, the court had no discretion to decline to give the jury the requested information and charge. C.P.L. §310.30; Gonzalez, 293 N.Y. at 261-262. However, the court's response, which conveyed that the jurors must not consider whether appellant acted in self-defense, was tantamount to no response at all. It violated well-established law requiring a court to respond meaningfully to a deliberating jury's request for information about any matter pertinent to its determination of a criminal defendant's guilt or non-guilt. Id. It is not surprising that the jury was concerned about whether appellant acted in self-defense (see pp. 40-41, ante). The court should have instructed the jurors that the defense of justification recognizes force to be privileged under certain circumstances, rendering its use "entirely lawful." People v. McManus, 67 N.Y.2d 541, 546 (1986). It also should 53 have given the pattern charge on the use of deadly physical force: [] The People are required prove beyond a reasonable doubt that the defendant was not justified. * * * [A] person may use deadly physical force upon another individual when, and to the extent that, he[] reasonably believes it to be necessary to defend himself[] from what he[] reasonably believes to be the use or imminent use of [] deadly physical force by such individual. CJI2d [NY] Justification: USE OF DEADLY PHYSICAL FORCE IN DEFENSE OF A PERSON, PENAL LAW 3 5. 15 [Effective Sept. 1, 1980] . Had the court fulfilled its obligation to respond meaningfully to the jury's request for supplemental instructions and given a justification charge, it would not have interfered with the misidentification defense counsel had advanced because defense counsel would not have been required to affirmatively embrace the justification defense in any way, much less take on any burden of proof. See, 26 N.Y.2d 526 (1970); cf. People v. DeGina, 72 N.Y.2d 768 (1988). Moreover, that the defense did not request a justification instruction in the main charge is irrelevant. In People v. Khan, 68 N.Y.2d 921, 922 (1986), this Court held that the trial court erred in failing to give a justification charge requested for the first time after summations and the main charge. Similarly, in People v. Lewis, 116 A.D.2d 16 54 (1st Dept. 1986), the defendant, charged with possession of a gun with the intent to use it unlawfully, neither raised justification nor objected to the absence of the defense in the main charge. During deliberations, however, defense counsel requested a self-defense charge when the jury sought clarification of the intent to use unlawfully element, asking, "Does intent to use unlawfully include use in self-defense?" The court refused to charge justification and instructed instead, "I have charged you with respect to all of the applicable law there is to this case. There is no other law applicable to this case." Id. at 18-19. Finding the court's response inadequate, the Appellate Division held that a trial court must charge justification when requested and, therefore, the court's failure to give a justification charge in response to the jury's request for the charge constituted reversible error. Id. at 19. 6 The court's failure to give the deliberating jury a justification charge it outright requested was equivalent to no response at all, a structural defect violating the statutory mandate of C.P.L. §310.30. Structural defects in a trial constitute a mode of proceedings error. See People v. Gray, 86 N.Y.2d 10, 21 6 Indeed, even defense counsel's objection to the charge is irrelevant to the court's obligation, pursuant to C. P. L. 310.30, to give the jury information it requested that was pertinent to its deliberations. People v. Magliato, 68 N.Y.2d 24, 28 29 (1986) (when evidence supported defense, court was obligated to charge it even over defense objection); Gonzalez, 293 N.Y. at 261-262; C.P.L. §310.30. 55 (1995) (alteration of "mandated procedural, structural, and process-oriented standards" constitute mode of proceedings violations). In People v. Mehmedi, 69 N.Y.2d 759, 760 (1987), the Court held that the lower court's violation of C. P. L. §310.30, which requires that, when a deliberating jury requests additional instructions, the court return the jury to the courtroom and, after proper notice to counsel "and in the presence of the defendant," give such requested instructions the court deems proper, constituted a structural or procedural defect that affects the "organization of the court or mode of proceedings prescribed by law," presenting an issue of law. Id. at 760. In Gonzalez, 293 N.Y. at 263, the Court held that the Legislature in §427 of the Code of Criminal Procedure, the precursor to C.P.L. §310.30, made "positive and absolute the requirement that 'information required [by a deliberating jury] must be given."' Gonzalez, 293 N.Y. at 263. The answering of such questions is no mere matter of conventional procedure. It is an integral part of the structure of an adequate trial. * * * [W]here the trial court fails to give information requested upon a vital point no appellate court may disregard the error . Id. at 263 (emphasis added) Under Mehmedi, the court's failure to respond meaningfully to the jury's request for instructions concerning justification resulted in "a substantial departure from a statutory provision that affects the 'organization of the court or mode of proceedings prescribed by law. '" Mehmedi, 6 9 56 N.Y.2d at 760. Thus, the defect presents an issue of law. In sum, the court's response in this case, instructing the jury to focus solely on "whether [appellant] intended to cause the death of Mr. Wisdom" (A 602), was tantamount to a refusal to give the jury the information it needed to determine appellant's guilt or innocence of murder. This information was clearly relevant to a "vital point" and the court's failure to charge justification simply cannot be disregarded. Gonzalez, 293 N.Y. at 263. Had the justification charge been given, the jury might well have determined that appellant's use of force was justified and acquitted him of Wisdom's homicide. Therefore, the judgment should be reversed and a new trial ordered. CONCLUSION THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED (POINTS I AND II) . if~ DE NI 1 'CE POWELL Of Counsel October 2, 2015 Respectfully submitted, LYNN W. L. FAHEY Attorney for the Defendant Appellant 57