PEOPLE & C., APPELLANT, v. PETER COLON, RESPONDENT.
90 N.Y.2d 824, 682 N.E.2d 978, 660 N.Y.S.2d 377 (N.Y. Jun 05, 1997).
June 5, 1997
2 No. 111 (1997 NY Int. 92)
Decided June 5, 1997
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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Sharon Y. Brodt, for appellant.
Russell C. Morea, for respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed and the case
remitted to that court for consideration of the facts (see, CPL
470.25(2)(d), 470.40(2)(b)).
At the end of the second round of jury selection, the parties had
selected 11 jurors. When the trial court disapprovingly remarked that
a new panel would have to be called for one more juror, the parties
conferred and defense counsel decided to withdraw a peremptory
challenge in order to seat the final juror. Defendant, though not
personally objecting to the procedure, did complain that he wanted a
different previously challenged juror empaneled. Defense counsel,
nevertheless, informed the court that the selected juror was
acceptable. At no time did defendant request a change of counsel.
After trial, defendant was convicted of robbery in the second degree
(see, Penal Law § 160.15(3)). The Appellate Division reversed the
conviction and ordered a new trial, concluding that "it was error for
the court to seat the previously-challenged juror over the defendant's
express objection" (People v Colon, __ AD2d __, 644 NYS2d 57, 58).
It is well established that a defendant, "having accepted the
assistance of counsel, retains authority only over certain fundamental
decisions regarding the case" such as "whether to plead guilty, waive
a jury trial, testify in his or her own behalf or take an appeal"
(People v White, 73 NY2d 468, 478; see, Jones v Barnes, 463 US 745,
751). With respect to strategic and tactical decisions concerning the
conduct of trials, by contrast, defendants are deemed to repose
decision-making authority in their lawyers. The selection of
SNIPPETS:
PEOPLE & C., APPELLANT, v. PETER COLON, RESPONDENT.
This memorandum is uncorrected and subject to revision before publication in the New York
At the end of the second round of jury selection, the parties had selected 11 jurors.
When the trial court disapprovingly remarked that a new panel would have to be called for one
Defendant, though not personally objecting to the procedure, did complain that he wanted a
The Appellate Division reversed the conviction and ordered a new trial, concluding that "it
It is well established that a defendant, "having accepted the assistance of counsel, retains
With respect to strategic and tactical decisions concerning the conduct of trials, by
The selection of particular jurors falls within the category of tactical decisions entrusted
the trial court committed no error by accepting defense counsel's recall of a peremptorily
Defendant thereby waived any argument that this procedure violated CPL
Defendant's contention that he was denied effective assistance of counsel is without merit.
Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.
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