Because I believe the trial court did not commit reversible error in complying with defendant’s decision that first- and second-degree manslaughter not be charged as lesser-included offenses of murder, I respectfully dissent. The question raised by this appeal is whether the trial court abrogated defendant’s Sixth Amendment right to counsel by not submitting a lesser-included offense charge when defendant who had fully consulted with defense counsel on why the lesser-included offense charge was being sought, and had been repeatedly advised by both the court and defense counsel that such a charge was in his best interest and supported by the law, disregarded the advice and decided he did not want that charge submitted to the jury.
In this case, defense counsel, after the evidence portion of the trial, asked the court to submit first- and second-degree manslaughter to the jury as lesser-included offenses of second-degree murder. Among other things, defense counsel told the court he had explained to defendant, who had asserted the defense of justification, that a lesser-included charge would afford the jury the opportunity to reach a compromise verdict on manslaughter, which would carry much less prison time than murder. Subsequently, defense counsel, on the record, withdrew his request after further discussion with defendant. Defense counsel stated defendant had decided, against his advice, that the manslaughter offenses should not be submitted to the jury because he believed the evidence showed that he acted in self-defense. After discussions on and off the record, the trial court indicated that it would not submit the lesser-included counts to the jury.
Although a criminal defendant who is represented by counsel relegates control of much of the case to the lawyer (see People v *34Ferguson, 67 NY2d 383, 390 [1986]), the overwhelming majority of recent jurisprudence—concerning the consultation and agreement between defense counsel and client on lesser-included offenses—leans toward permitting a defendant to participate in the decision making process (see ABA Standards for Criminal Justice, Defense Function, standard 4-5.2, Commentary at 202 [3d ed 1993] [ABA commentators wrote, “(fit is . . . important in a jury trial for defense counsel to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury”]). Indeed, most controversies have come about because the defendant was not consulted or given an opportunity to express his opinion as to whether or not lesser included charges should be included in the verdict sheet (see e.g. People v Taylor, 2 AD3d 1306, 1308 [4th Dept 2003]). That is not what happened in the case presently before us.
Here, defendant was fully consulted by counsel on whether to include the charges of first-degree (intentional) manslaughter and second-degree (reckless) manslaughter as lesser-included counts to be considered by the jury. But defendant ultimately objected to the submission of the lesser-included counts. After defendant consulted with his attorney, the court chose to speak with defendant directly. In that exchange, defendant clearly insisted that he did not want the lesser-included charges placed before the jury. In short, both defense counsel and the court tried, unsuccessfully, to persuade defendant that it would be to his benefit to have these additional charges considered. Moreover, while defense counsel expressed his disagreement with defendant by saying that in his judgment the counts ought to be submitted, he did not specifically object when the lesser-included counts were not submitted. Instead he withdrew his request for the charge, effectively acceding to the wishes of his client.*
The facts of this case not only highlight that defense counsel fully consulted defendant, they also make clear that defendant fully participated in the discussion and decision concerning whether the lesser-included counts charge should be submitted to the jury. This is not a case where defense counsel told defendant what the decision was and defendant silently accepted it, or where defense counsel did not advise defendant of the decision. *35Here, defendant was a full participant in the decision, and exercised his right to disagree with counsel and object to a particular course of action. Because a defendant has the most to lose in a criminal proceeding (i.e., freedom), reason dictates that the defendant shall control his/her own destiny and have the ultimate authority regarding choices he/she makes (even if against the advice of counsel). Our decision in People v Petrovich (87 NY2d 961 [1996]) illustrates this point.
In Petrovich, defendant was accused of murder, and, at trial, he asserted he was suffering from a mental disease or defect at the time of the incident. At the conclusion of the evidence, defense counsel requested a charge of extreme emotional disturbance. However, the next day, counsel withdrew the request at the insistence of defendant, despite his advice to the contrary. The trial court gave defendant and counsel additional time to discuss the matter, but defendant did not change his mind. The trial court did not give the charge, concluding that the defendant’s decision was determinative. Defendant was convicted of second-degree murder (two counts). On appeal, defendant argued, similar to defendant in the case at bar, that the trial court deprived him of his Sixth Amendment right to counsel. This Court concluded that the trial court did not abrogate the defendant’s Sixth Amendment right to counsel, reasoning that defendant, who, according to the record, (1) perceived that charging both second-degree murder and first-degree manslaughter would afford the jury two opportunities to convict; and (2) “calculated that eliminating consideration of manslaughter increased his chance for an acquittal,” could not “complain” on appeal “that his miscalculation translated] into a forced relinquishment of the right to counsel” (87 NY2d at 963).
Applying the reasoning set forth in Petrovich here, defendant, who objected to the lesser-included offense charge because he believed the evidence showed he acted in self-defense, cannot now complain about his own miscalculation. The defendant’s choice to reject a charge of lesser-included offenses does not amount to a forced relinquishment, by the trial court, of the right to counsel.
Moreover, defendant’s considered decision—rejecting the submission of lesser-included offenses—is completely consistent and logical in light of his assertion of the justification defense. Certain defenses—e.g., the defenses of alibi, mistaken identification and justification—are unique in that their acceptance by *36the jury results in a complete exoneration (i.e., acquittal of the charges). But, the submission of lesser-included offenses in a case where such a defense is asserted dilutes the force and effect of the defense itself. Petit juries, which are not instructed concerning the legal bases (and subtleties) of lesser-included offenses, would understandably find it hard to accept that a defendant acted in self-defense if lesser-included offenses are available because such charges signal that defendant is seeking a compromised verdict. In short, charging the jury on lesser-included offenses where the defense of justification has been asserted invites a jury to disregard justification and focus on the question of the defendant’s mental state (here, intent and/or recklessness).
Finally, if the court had rejected the defendant’s position and charged the lesser-included offenses over his objection, an acquittal on the top count together with a conviction of a charged lesser-included count may result in reversible error. In this circumstance, defendant would have an appealable issue regardless of whether the lesser-included offenses were submitted to the jury or not.
Accordingly, I would affirm the order of the Appellate Division in this case.
Chief Judge Lippman and Judges Ciparick and Graffeo concur with Judge Read; Judge Jones dissents and votes to affirm in a separate opinion in which Judges Smith and Pigott concur.
Order reversed, etc.
Even if the lesser-included offenses of intentional and reckless manslaughter were supported by a reasonable view of the evidence, the trial court’s decision not to submit those charges to the jury, in light of the withdrawn request for the lesser-included charge, was not error (see CPL 300.50 [2]; People v Crique, 63 AD3d 566 [1st Dept 2009]).