In another case of seeming first impression from the Fourth Department's May term, the Court held in People v Washington that a defense attorney may concede a defendant's guilt to a lesser included offense at trial over the defendant's objection without violating the defendant's right to make fundamental decisions at trial. (People v Washington, 2005 NY Slip Op 04939.) That bolded bit--that the defendant in Washington strenuously objected to his defense counsel conceding guilt on the lesser included offense--is not mentioned in the Fourth Department's opinion. The Fourth Department merely notes,
Where defense counsel adopted a strategy of conceding defendant's guilt of a lesser included charge 'in the hope that defendant was innocent of the far more serious offense and acquit him thereof,' it is a 'perfectly acceptable strategy which should not be 'second guess[ed] by the court.'
(Washington, 2005 NY Slip Op 04939.)
That's fine, and if the record below was silent as to the defendant's thoughts on his counsel's trial strategy, the Fourth Department's decision would be perfectly acceptable. However, a review of the trial court's decision reveals far more. For starters, the defendant strenuously objected to his attorney's strategy of conceding guilt to the lesser. From the lower court's decision:
[D]efendant and his attorney became engaged in what appeared to be a heated argument. The jury was excused. After a few minutes of continued discussion with his client, counsel indicated to the court that defendant would like to make a statement on the record.
Upon being asked by the court what was on his mind, defendant stated, in sum and substance, that he was innocent of all charges and that he objected to the concession of guilt made by his attorney during the opening statement. Defendant further stated, among many other things, that he never told his attorney that he was guilty and that he had been telling his attorney for weeks, 'please do not try my case like that,' referring to the concession of guilt to the lesser charge.
(People v Washington, 5 Misc 3d 957, 959.)
The Fourth Departmnent's decision would be more understandable if the defendant's lawyer had conceded his guilt to a misdemeanor (as was the case in People v Plaza [133 AD2d 857], cited by the Fourth Department in support of its decision) and thus exposed his client to a limited punishment. However, this was not the case in Washington--as the trial court noted,
As a direct result of counsel's concession, defendant, a predicate felon, faced a minimum of 5 years imprisonment (assuming concurrent sentences) and a maximum of 20 years. That is the sentence range for defendant if he were convicted of the lesser charge. Any decision that exposes a defendant to such punishment is, in this court's view, fundamental.
It may well have been a smart strategy to concede guilt to the lesser included offense. The trial court notes that "[n]o one could seriously argue that counsel would have authority to enter a guilty plea to the lesser charge without defendant's consent. Why should it be different if counsel concedes guilt to the same lesser charge at the beginning of trial? Under both scenarios, it could be said that counsel's decision was wise, given the anticipated proof of guilt." (Id. at 964.)
The trial court raised a very compelling question--why should a defense attorney be allowed to concede guilt at trial over his client's boisterous objection (and thereby subject the client to at least 5 years in state prison) if the attorney could not enter into a favorable plea bargain on the client's behalf before trial without the client's consent? Instead of answering that question, the Fourth Department left out the most relevant, interesting facts from its opinion and decided the case as if the defendant made no objection at trial to his attorney's decision to concede guilt.
