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Nov 08 2011

Appeal Court Decides Lawyer Did Not Sell Out His Client – A Tale From the Trenches

TV makes criminal defense lawyers out to be one of two types – shady, nefarious characters who will do anything to get their clients off or charismatic, vigorous advocates who only represent the innocent. In fact, most criminal defense lawyers are underpaid and overworked men and women who are usually fighting unseen battles for minor victories in favor of an unappreciative clientele. Case in point is People v. Nesbitt a case handed down by the Appellate Division yesterday.

In that case, Nesbitt was charged with grabbing his roommate and slashing his face and arm with a multi-blade device. It left the victim with a numb left arm and scars on his face. The defendant was charged with attempted murder and assault in the first degree. His trial lawyer, Bryan Konoski, made a tactical choice; he decided not to discuss any charges with the jury except the attempted murder charge. He also did not ask the court to tell the jury about any lesser-included charges like assault in the second or third degree. So he waived his opening statement (always a risky move) and in his closing statement only talked about the attempted murder charge telling the jury “Do the right thing as to the other charges.” They didn’t. They acquitted Nesbitt of the attempted murder charge and found him guilty of the assault in the first degree charge.

It was a rough trial for Konoski. First off, he had to try the case in front of Carol Berkman, a Manhattan judge who I think is one of the most dis-tempered, difficult and anti-defendant judges in the state. Worst of all, she is actually very bright and nothing gets past her. Believe me it could not have been a pleasant experience. The trial record also reveals that during the course of the trial the defendant THREATENED HIS LAWYER’S LIFE and also SPIT IN HIS FACE! Why on Earth an attorney would continue to represent a client who did these two things to him is beyond me, but I guess Konoski need the money pretty badly, who knows. In any event, he decided to persevere and do what he could for the client.

In order to prove assault in the first degree, the jury had to believe that the victim suffered severe disfigurement or sever impairment. The two judges who dissented felt that since both the numbness in the arm and the scars on the face were healing and getting better all the time and did not prevent the victim from leading a normal life, that “there was room for argument” and that Konoski had an obligation to fight for an acquittal on these charges as well. I agree. I also agree that the main reason why Konoski had to make the argument for acquittal of assault one and should have asked the court to charge the jury as to assault two (a lesser included offense) is that assault one and attempted murder are both B Felonies with exactly the same sentencing range; with Judge Berkman it was a foregone conclusion that if the defendant lost on either charge he was getting the max (and he did – she sentenced him to 25 years). So what was the point of arguing for an acquittal on the attempted murder charge and not the assault one. You gained no benefit and had nothing to lose as the 2 dissenting judges pointed out in the decision. Also, as the dissenting court noted, the facts were there to argue that there was no intent to seriously disfigure or permanently impair the victim. The medical report described the wounds as “superficial” and as I stated before they were healing. So you argue to the jury that there is not enough evidence to meet the top 2 counts and concede that there was certainly enough to convict on assault 2 (which just requires serious physical injury and does not need proof of serious disfigurement or permanent impairment). If the jury agrees with you, then the defendant gets convicted of a C felony and only faces a maximum of 15 years. And also, no one can claim you were ineffective. I frankly see no reason for the strategy he chose. The majority court also recognized that there was evidence that would have allowed these arguments to be made, but felt that a jury would have found him guilty anyway. A 3-2 decision means that you automatically get to go to the Court of Appeals (NY highest court); so we will see what they decide in about a year or so.

But I did not write this blog piece just to second-guess or attack Konoski’s strategy. It was to point out the kind of case that makes up the majority of the criminal defense docket. Court-appointed counsel defending a client who is definitely guilty of something, but the question is of what level of crime and what should his sentence be. There is no glamour or glory in it, just hard, normally anonymous, work in the trenches.

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