As detailed in a post last Fall (see) in People v Colville (79 AD3d 189 [2nd Dept 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this issue, which has not yet been addressed by the New York Court of Appeals. That might be changing as Judge Read has granted the appellant in Colville leave to appeal to the Court if Appeals. Hopefully, this means that New York attorneys might soon obtain an answer to this important and recurring question.
