It is enshrined in the Sixth Amendment that every criminal defendant is entitled to effective assistance of counsel in criminal prosecution. If counsel falls short of providing such effective assistance, the conviction can be reversed and a new trial ordered. In a unique decision from the Appellate Division, Second Department, the court reversed a conviction due to the defense counsel’s failure to ask for the jury to consider the lesser included offense of trespass while considering a burglary charge against the defendant.
 
In People v. Orama, decided on January 31, 2018, the defendant was charged with burglary. Burglary is defined in the Penal Law as entering a building unlawfully with the intent to commit a crime while inside. Trespass, which is solely the crime of knowingly entering a building without permission is a lesser included offense within the crime of burglary. The appellate court found that it was ineffective assistance of counsel for the defense counsel to fail to request that the jury considers a trespass charge alongside the burglary charge. 
 
The court determined that the evidence supporting the burglary charge, i.e. that defendant had sought to actually take items from the home which he had illegally entered, was exceedingly weak. He was not in possession of any property when he was discovered, and when he was found by the homeowner, he “waved his arms in a circular motion and, without blinking, repeated, over and over, ‘hallelujah,’ and then fled.”
 
This case is an interesting and unique deviation in the jurisprudence of ineffective assistance of counsel. Normally, decisions on matters of strategy cannot be considered ineffective assistance of counsel. For an attorney, whether to ask the jury to consider a lesser included defense is an important strategic decision. It asks the jury to consider an additional basis on which it can convict your client. It may be guaranteeing a conviction on the lesser charge in a case where the defendant could have been acquitted of the greater charge. Accordingly, every defense lawyer must make a careful assessment of the strength of the evidence before asking the jury to consider a second way to convict their client.
 
It remains to be seen whether this case will be an outlier or whether a new standard for ineffective assistance of counsel will take hold. We will continue to update this blog as new relevant cases are decided.

Read more from Gallet Dreyer & Berkey’s White Collar Criminal Defense blog or contact an attorney in our White Collar Crime practice.