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A judge’s acquiescence to a defendant who, against advice of counsel, opposed allowing the jury to consider a lesser offense, requires the conviction to be reversed, an upstate appellate court has found.

The Appellate Division, Fourth Department, said the decision to seek or reject a charge in a lesser-included offense is a tactical matter that shouldn’t have been left in the defendant’s hands. In People v. Brown, 07-01017, the court said Germaine Brown is entitled to a new trial on assault charges.

Brown was being tried in Niagara County for second-degree assault when his attorney requested a charge on the lesser-included offense of third-degree assault.

After Niagara County Judge Peter Broderick Sr. told Brown that a conviction on the lesser charge would “automatically” result in a probation violation on an unrelated pending charge, the defendant said he did not want the lesser charge to go to the jury.

Brown’s attorneys, Herbert Greenman, a senior partner at Lipsitz Green Scime Cambria in Buffalo, and James Faso of Niagara Falls, were granted a recess to consult with their client. When court resumed, the attorneys advised Broderick that the defendant was adamantly opposed to submitting the lesser-included offense, despite their strong advice to the contrary.

Broderick directly questioned Brown, who made his preference clear and acknowledged that he was going against the advice of his attorney. The court charged the jury only with regard to the main count, not the lesser included, and Brown was convicted of second-degree assault.

The Fourth Department affirmed the conviction in 2008. Five years later, Brown’s appellate attorney, Jeremy Schwartz of Buffalo, moved for a writ of coram nobis, arguing that he had neglected at the first appeal to raise an issue that would have required reversal.

Earlier this month, the Fourth Department agreed with Schwartz and reversed the conviction. Its holding relied primarily on the Court of Appeals’ decision in People v. Colville, 20 NY3d 20 (2012).

In Colville, the high court said in a 4-3 opinion by Judge Susan Phillips Read that “the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel.” Although Colville was decided five years after Brown’s trial, the Fourth Department said its reasoning controls.

The panel said a “reasonable view of the evidence” would support a conviction on third-degree assault and not second-degree assault. It said that while the indictment alleged that Brown attacked his victim with a box cutter—a “dangerous instrument”—there was no evidence to that effect.

“In view of those facts, the court should have given a charge for the lesser included offense of assault in the third degree, as requested by defense counsel,” the panel said in decision by Presiding Justice Henry Scudder and justices Erin Peradotto (See Profile), Edward Carni (See Profile), Stephen Lindley (See Profile) and Joseph Valentino (See Profile).

Schwartz, who represented the defendant along with Thomas Eoannou of Buffalo, said the ruling clearly follows Colville and earlier cases suggesting that the decision on whether to seek a charge on lesser included crimes is a strategic matter for the attorney.

“It is an important decision because it came up as an error coram nobis, which indicates that there were cases prior to Colville which could have and should have been raised,” Schwartz said. “I did the original appeal, and after Colville I did my own coram nobis, making an argument that I myself was ineffective for not raising that issue. That is the unique aspect of this case.”

Assistant Niagara County District Attorney Laura Bittner argued for the prosecution.