People v. Nesbitt

Moskowitz and Renwick, JJ., dissent in a memorandum by Renwick, J., as follows:

I must respectfully dissent. In my opinion, defendant received ineffective assistance of counsel when his attorney essentially conceded his guilt of first-degree assault, choosing only to litigate the charge of attempted murder, also a class B felony. While in some cases a partial concession of guilt may be a sound strategy, this was not such a case.

Ordinarily, a CPL 440.10 motion to vacate the judgment of conviction is needed to generate the fuller record needed to adequately assess a claim of ineffective assistance of counsel. In this case, however, defendant’s trial counsel deliberately made a record of his view of the strength of the People’s case and explained that he felt he had no defenses to the first-degree assault charges. Asked by the court if he wished to request a charge on a lesser included offense, counsel repeatedly stated that he could not think of an applicable one. Hence, the existing record is adequate for review of the ineffective assistance claim, as counsel chose to make his own record as to why he was virtually abandoning any defense to first-degree assault.

The People’s evidence established that, after a heated argument, defendant pulled out a weapon consisting of three scalpels attached to one handle, rushed the victim, and slashed him on the neck from behind. Defendant then inflicted additional slash wounds to the victim’s face, arm and back before the victim fled into his apartment. Defense counsel reasonably recognized, given this evidence, that defendant had no plausible defense to the charge that he committed at least some kind of assault.

The indictment charged defendant with attempted murder, of which he was found not guilty. It also charged first-degree assault under a theory of intentionally causing serious physical injury to the victim by means of a dangerous instrument, as well as under a theory of seriously and permanently disfiguring the victim, or destroying, amputating, or permanently disabling a member or organ of his body, with intent to cause such injury (see Penal Law § 120.10 [1], [2]).

“Serious physical injury” is an injury that creates “a substantial risk of death,” “serious and protracted disfigurement,” or which causes “protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00 [10]). Certainly, the evidence here was legally sufficient to support the first-degree assault convictions. Nonetheless, even given the strength of the People’s case, there was room for argument that defendant had not committed the crime of first-degree assault.

*453The People’s medical expert did not testify that any of the victim’s injuries created a “substantial risk of death.” The expert did opine that one of the cuts to his neck would have been life-threatening if it had been an inch deeper and severed the carotid artery. The carotid artery was not severed, however, and none of the wounds was actually life-threatening. Whether a wound creates “serious disfigurement” is judged under an objective, “reasonable observer” standard, considering the nature of the wound, its location on the body, and the victim’s overall physical appearance (see People v McKinnon, 15 NY3d 311, 315 [2010]). Here, photographs of the victim’s injuries indicate that the slash wounds, although shocking in appearance immediately after the attack, appeared to have healed well. Counsel could have made a reasonable argument that the victim’s scars have not left his appearance so “distressing or objectionable” as to constitute “severe disfigurement” (McKinnon, 15 NY3d at 315).

In addition, “serious physical injury” may exist where the victim suffers “protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” Here, the only injury that might have met this standard is one of the wounds to the victim’s forearm, which cut a tendon. The medical expert testified that such an injury could have resulted in nerve damage, and the victim testified that a small section of his arm was sometimes numb. The numbness appears to have been intermittent, however, and, in any event, the victim did not testify that he could not use the arm when it was numb. Under these circumstances, it could be argued that the victim’s use of his arm was not so impaired as to constitute “serious physical injury.”

In sum, despite the strength of the People’s case, there was a sound basis for counsel to argue that the victim did not suffer the requisite “serious physical injury” or “serious disfigurement.” Moreover, each of the first-degree assault counts required proof of intent to cause the respective type of injury. Although the jury was certainly permitted to infer, from the nature of the victim’s injuries (or from defendant’s threatening statements as he was leaving the apartment) that defendant intended to inflict serious physical injury, it was not required to draw that inference (see People v Steinberg, 79 NY2d 673, 685 [1992]).

Defendant’s counsel reasonably should have defended against the first-degree assault charges, and should have at least requested submission of second-degree assault as a lesser included offense. If the jury found that the People failed to *454prove the requisite injury, the requisite intent, or both, but still found that defendant intentionally caused physical injury by means of a dangerous instrument, defendant would have been convicted of a class D felony (see Penal Law § 120.05 [2]). The People’s case was strong, and, of course, defendant might well have been convicted of first-degree assault even had the jury also had the option of convicting him of a lesser offense. But defendant’s counsel’s error deprived the jury of that choice. The majority inexplicably ignores the fact that counsel accomplished little or nothing by only defending against the attempted murder charge, albeit successfully. The acquittal did not limit defendant’s sentencing exposure under the circumstances of the case. He was still convicted of class B felonies and sentenced to the maximum permissible term of imprisonment.

Of course, I recognize that defendant was an extraordinarily uncooperative and disruptive client. Nevertheless, there is no indication that defendant’s lack of cooperation impaired his attorney’s ability to defend against the assault charges. Under all of the circumstances of this case, counsel’s failure to make any arguments against the first-degree assault counts, and his failure to request second-degree assault as a lesser included offense, compromised defendant’s right to a fair trial and deprived him of meaningful representation (People v Caban, 5 NY3d 143, 156 [2005]; People v Hobot, 84 NY2d 1021, 1022 [1995]). For the same reasons, defendant has also established a reasonable probability that the outcome at trial would have been different but for his counsel’s errors (see Strickland v Washington, 466 US 668, 694 [1984]). I would therefore reverse, on the law, and remand the matter for a new trial.