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Ineffective Assistance Of Counsel For Single Failure To Object


People v. Brown 2011 NY Slip Op 04721 Decided June 7, 2011 

Issue: Whether an attorney can be found ineffective based on a single failure to object at trial.

Held: The attorney was not ineffective under the New York standard for ineffective assistance of counsel because counsel may have had strategic reasons for not doing so. It was plausible that counsel chose not to object because the prosecutor’s closing remarks impugned the People’s witnesses as well as defendant’s and the remarks made were consistent with the defense theory of the case as well as the prosecution’s.

Facts: in closing arguments the prosecutor made a “safe streets” argument to the jury suggesting that the community must be protected from the defendant, and they should therefore convict him on this basis.  The defense attorney did not object to this portion of the prosecutor’s closing argument.

Legal Analysis: to prevail on an ineffective assistance of counsel claim on the basis of a single failure to object, a defendant must show both that the objection omitted by trial counsel is a winning argument and that the objection was one that no reasonable defense lawyer, in the context of the trial, could have thought to be “not worth raising”.  The Court of Appeals held that the defendant failed to meet this burden of demonstrating a lack of strategic or other legitimate reason for his defense lawyer’s failure to object.  The Court found that it was entirely plausible that counsel chose not to object because the prosecutor’s remarks impugned the People’s witnesses as well as defendant and therefore were consistent with his own theory that the People’s witnesses were simply not credible.