PEOPLE v. WASHINGTON (2005)

 The People appeal from an amended order granting defendant's motion to vacate a judgment of conviction pursuant to CPL 440.10 on the ground that defense counsel's strategy of conceding defendant's guilt to the lesser included charge of robbery in the second degree was the equivalent of entering a guilty plea for defendant and was made without defendant's consent in violation of the right of defendant to make fundamental decisions at trial (see Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987;  People v. White, 73 N.Y.2d 468, 478, 541 N.Y.S.2d 749, 539 N.E.2d 577, cert. denied 493 U.S. 859, 110 S.Ct. 170, 107 L.Ed.2d 127;  People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77).   We disagree that the concession by defense counsel during his opening and closing statements that defendant was guilty of the lesser included offense was the equivalent of entering a guilty plea for defendant (see People v. Chaney, 284 A.D.2d 998, 727 N.Y.S.2d 372, lv. denied 96 N.Y.2d 917, 732 N.Y.S.2d 633, 758 N.E.2d 659;  People v. Barnes, 249 A.D.2d 227, 228, 673 N.Y.S.2d 366, lv. denied 92 N.Y.2d 893, 680 N.Y.S.2d 57, 702 N.E.2d 842).   Where defense counsel adopted a strategy of conceding defendant's guilt of a lesser included charge “in the hope that the jury would then be more receptive to the claim that the 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 courts” (People v. Plaza, 133 A.D.2d 857, 858, 520 N.Y.S.2d 220, lv. denied 70 N.Y.2d 936, 524 N.Y.S.2d 687, 519 N.E.2d 633, quoting People v. Morris, 100 A.D.2d 630, 631, 473 N.Y.S.2d 595, affd. 64 N.Y.2d 803, 486 N.Y.S.2d 920, 476 N.E.2d 319).   We conclude that, “viewing the totality of the circumstances[,] defendant was not deprived of his constitutional right to effective assistance of counsel” (People v. Morris, 64 N.Y.2d 803, 804-805, 486 N.Y.S.2d 920, 476 N.E.2d 319;  see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We therefore reverse the amended order, deny the motion and reinstate the judgment of conviction.

It is hereby ORDERED that the amended order so appealed from be and the same hereby is unanimously reversed on the law, the motion is denied and the judgment is reinstated.

MEMORANDUM: