New trial granted for defendant who ignored counsel’s advice

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It was up to defense counsel, not the defendant, to seek a jury charge on lesser-included offenses in a Niagara County assault case, the Appellate Division, Fourth Department ruled Friday.

The higher court overturned the second-degree assault conviction of Germaine Brown, formerly of Niagara Falls, and sent the case back down for a new trial.

“I’m not surprised in light of Colville,” said Buffalo attorney Jeremy D. Schwartz, who represented Brown on appeal.

He was referring to People v. Colville, 20 NY3d 20, also cited by the Appellate Division, Fourth Department, in which the state Court of Appeals held “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.”

The matter was prosecuted on appeal by Laura T. Bittner, an assistant district attorney in the Niagara County District Attorney’s Office. She could not be reached for comment Tuesday morning.

Brown, who is in his 30s, was convicted in connection with a fight on Jan. 6, 2006, at an auto parts store in Niagara Falls in which a worker suffered cuts to his neck and chest. It was alleged Brown used a box cutter, which he denied having and the victim did not recall seeing him use.

During his November 2006 trial, Brown’s attorneys, Herbert L. Greenman and James Faso, asked that the lesser included offense of third-degree assault be included in the charge to the jury. Niagara County Court Judge Peter L. Broderick Sr., now retired, agreed to grant their request, but Brown objected after being told conviction of the lesser offense would automatically result in a probation violation with respect to unrelated drug charges that were pending at the time.

The violation of probation could have, in turn, resulted in deportation procedures because Brown, a native of Jamaica, is not a U.S. citizen.

Brown and his attorneys conferred, after which Greenman and Faso told the court Brown’s decision was against their “strong” advice. Brown himself confirmed his decision to Judge Broderick with defense counsel reiterating it was “the wrong decision.” Judge Broderick did not submit the lesser included charge of third-degree assault, a Class A misdemeanor, and Brown was convicted of the Class D felony of second-degree assault.

In 2013, Brown moved to re-open the case, claiming he was denied effective assistance of appellate counsel for not raising the issue that County Court’s deference to his decision to forego a jury charge for the lesser included offense denied him the expert judgment of counsel guaranteed by the Sixth Amendment.

In Colville, Delroy Colville, charged with second-degree murder in the stabbing death of a neighbor, objected, over his counsel’s advice, to having two lesser included offenses charged to the jury. The judge abided by his objections, did not include the lesser offenses in his charge and Colville was convicted of second-degree murder, which the Court of Appeals reversed.

The Fourth Department was guided by Colville in its unanimous decision in People v. Brown (2014 NY Slip Op 03374).

“We conclude that the court erred in deferring to defendant in determining whether to submit the lesser included offense to the jury inasmuch as that decision ‘was for the attorney, not the accused, to make,’” states the unsigned decision. “Moreover, we agree with defendant that the court’s error in deferring to his decision relative to the charge for a lesser included offense cannot be deemed harmless beyond a reasonable doubt.”

The panel consisted of Presiding Justice Henry J. Scudder and Justices Erin M. Peradotto, Edward D. Carni, Stephen K. Lindley and Joseph D. Valentino. They agreed, which Judge Broderick did too, that a reasonable view of the evidence could support that Brown committed the lesser charge; that a jury could find he intended to injure the victim, but not by using a dangerous instrument.

They note the victim never saw a box cutter or any dangerous instrument in Brown’s hands and did not know how he received the cuts.

“An employee who witnessed the altercation testified that he never saw a razor, a box cutter or any other weapon during the fight and no such weapon was recovered from the crime scene,” the panel wrote. “Further, defendant was apprehended while fleeing from the scene and no weapons were found on defendant, in or near defendant’s vehicle or in the possession of other occupants in his vehicle. 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.”

Schwartz said the victim’s cuts could have come from being backed into a store display.

“I think the facts in this case were almost stronger than in Colville, so it think it was a clear decision,” he added.

Brown had previously appealed his conviction, claiming it was not supported by the evidence. The Appellate Division, in its June 6, 2008 decision, unanimously  upheld the conviction, based on the nature of the victim’s wounds, but did reduce the post-release supervision from five years to three, correcting an error of the court.

Schwartz said Brown has served his sentence, but is being detained in Batavia by U.S. Immigration and Customs Enforcement for possible deportation.

The Niagara County District Attorney’s Office could retry him on the assault charge. Brown could also be removed based on a drug conviction Schwartz is moving to vacate.

Schwartz said Brown pleaded guilty to a cocaine charge in 2004. He is challenging the voluntariness of the plea. Schwartz said Brown was told he could still appeal that conviction on a speedy trial challenge, but that information was inaccurate; that he waived his right to appeal with his plea. He said Brown has lived in the U.S. most of his life.

The drug case is pending in Erie County Court because Niagara County District Attorney Michael J. Violante recused his office. Formerly the county’s public defender, Violante had previously represented Brown, as has one of his assistant district attorneys.