        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

558
KA 12-02309
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONYELL J. MCKENZIE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONYELL J. MCKENZIE, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered December 5, 2012. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]). We previously affirmed a judgment convicting defendant of that
crime (People v McKenzie, 81 AD3d 1375, revd 19 NY3d 463). In
reversing our order, the Court of Appeals concluded that defendant was
entitled to a jury instruction on the affirmative defense of extreme
emotional disturbance, and ordered a new trial (McKenzie, 19 NY3d at
469). In this appeal after that retrial, defendant contends, inter
alia, that he was deprived of his right to counsel because defense
counsel permitted him to choose a member of the jury. We agree, and
we therefore reverse the judgment and grant defendant a new trial.

     “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 Colon, 90 NY2d 824, 825-826 [internal quotation marks
omitted]). “The selection of particular jurors falls within the
category of tactical decisions entrusted to counsel, and defendants do
not retain a personal veto power over counsel’s exercise of
professional judgments” (id. at 826; see People v Morgan, 77 AD3d
1419, 1420, lv denied 15 NY3d 922).
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                                                         KA 12-02309

     Here, during the part of the jury selection process when the
attorneys were exercising peremptory challenges, defense counsel
stated “[f]or the record, my client is insisting over my objection to
keep juror number 21. So, jurors 20 and 21 will be on the jury.” We
agree with defendant that, contrary to the People’s contention,
defense counsel “never ‘acceded’ or ‘acquies[ed]’ to defendant’s
decision” (People v Colville, 20 NY3d 20, 32). Furthermore, contrary
to the circumstances in People v Hartle (122 AD3d 1290, 1292, lv
denied 25 NY3d 1164), defense counsel’s statement constitutes a clear
indication that his position differed from defendant’s position. We
respectfully disagree with the dissent’s speculative view that
“defense counsel merely took the input gained from [the] consultation
[with defendant] into account in determining whether to exclude the
prospective juror at issue.” Although defense counsel stated that
juror number 21 would be on the jury, the record establishes that
County Court, in seating juror number 21 on the jury, was “guided
solely by defendant’s choice in the matter,” and that was “error
because the decision was for the attorney, not the accused, to make”
(Colville, 20 NY3d at 32). Consequently, the court denied defendant
the “expert judgment of counsel to which the Sixth Amendment entitles
him,” and “we cannot say that the error here was harmless beyond a
reasonable doubt” (id.).

     In view of our determination, there is no need to address
defendant’s remaining contentions raised in his main and pro se
supplemental briefs.

     All concur except SMITH, J.P., and TROUTMAN, J., who dissent and
vote to affirm in the following memorandum: We respectfully dissent.
We disagree with the conclusion of the majority that defendant was
deprived of his right to counsel because his attorney permitted him to
choose a member of the jury. We conclude that the record establishes
that defense counsel acceded to defendant’s request to permit the
juror at issue to be seated on the trial jury, and we would therefore
affirm the judgment.

     We agree with the majority that “[t]he selection of particular
jurors falls within the category of tactical decisions entrusted to
counsel, and defendants do not retain a personal veto power over
counsel’s exercise of professional judgments” (People v Colon, 90 NY2d
824, 826; see People v Morgan, 77 AD3d 1419, 1420, lv denied 15 NY3d
922). Indeed, the Court of Appeals has unequivocally rejected the
contention that “a defendant’s right to be present at voir dire
includ[es] the right to veto his counsel’s choices in selecting a
jury” (People v Sprowal, 84 NY2d 113, 119). Thus, we agree with the
majority that a defendant does not have the right to veto his
attorney’s choice to exclude a particular prospective juror.

     Here, however, the record does not establish that County Court
permitted defendant to override defense counsel’s choice. While the
attorneys were exercising their peremptory challenges, defense counsel
stated, “For the record, my client is insisting over my objection to
keep juror number 21. So, juror[] . . . 21 will be on the jury.”
Defendant did not speak, despite being present at the bench at that
                                 -3-                           558
                                                         KA 12-02309

time, nor did the court ask any further questions of defendant or
defense counsel.

     Based on the fact that defense counsel made the determination not
to challenge the juror, we would reject defendant’s contention that
defense counsel abdicated his duty to select the jurors. To the
contrary, we conclude that “the record is equally consistent with the
inference that, after discussing the issue at length, defense counsel
. . . acceded to defendant’s position” (People v Gottsche, 118 AD3d
1303, 1304-1305, lv denied 24 NY3d 1084; cf. generally People v
Colville, 20 NY3d 20, 32), and that, “after consulting with and
weighing the accused’s views along with other relevant considerations,
[defense counsel] decide[d] to” accept the prospective juror at issue
(Colville, 20 NY3d at 32; see People v Hartle, 122 AD3d 1290, 1292, lv
denied 25 NY3d 1164). There is no indication that defendant
threatened or coerced defense counsel to acquiesce to defendant’s
wishes, nor any other evidence that defense counsel did not exercise
his choice voluntarily. The fact that defense counsel took
defendant’s views into account in making the determination does not
invalidate defense counsel’s choice. To the contrary, the Court of
Appeals has noted that “defendant’s presence at sidebar interviews of
prospective jurors for bias or hostility during jury selection is
generally required because of the potential input the defendant can
give defense counsel in making discretionary choices during jury
selection, based on impressions gained from seeing and hearing the
juror’s responses on voir dire” (People v Roman, 88 NY2d 18, 26, rearg
denied 88 NY2d 920), and it is well settled that defense counsel must
have a reasonable time in which to consult with defendant before
exercising peremptory challenges (see e.g. People v Velasco, 77 NY2d
469, 473; People v Pierce, 303 AD2d 314, 315, lv denied 100 NY2d 565;
People v Cameron, 244 AD2d 350, 351, lv denied 91 NY2d 940). Here,
defense counsel merely took the input gained from that consultation
into account in determining whether to exclude the prospective juror
at issue. In the final analysis, however, the record clearly
establishes that defense counsel decided to permit the juror to remain
on the jury. Therefore, it cannot be said that defendant was “denied
. . . the expert judgment of counsel to which the Sixth Amendment
entitles him” (Colville, 20 NY3d at 32).

     Contrary to defendant’s further contention, we conclude that the
evidence, the law, and the circumstances of this case, viewed in
totality and as of the time of the representation, establish that
defendant received meaningful representation (see People v Baldi, 54
NY2d 137, 147).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
