| People v Brown |
| 2009 NY Slip Op 03334 [61 AD3d 1427] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v SpartacusBrown, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Matthew H. James of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedSeptember 19, 2006. The judgment convicted defendant, upon a jury verdict, of sexual abuse inthe first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the motion to set aside the verdict in part is granted, the verdict is set aside in part and a new trialis granted on counts two and three of the indictment.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of sexualabuse in the first degree (Penal Law § 130.65 [3]) and endangering the welfare of a child(§ 260.10 [1]), defendant contends that County Court erred in denying his motion to setaside the verdict in part pursuant to CPL 330.30 on the ground that he was denied effectiveassistance of counsel. We agree. The motion was based on defense counsel's failure to object tothe admission in evidence of the victim's medical records, which contained informationconcerning prior allegations of sexual abuse against defendant. Under the circumstances of thiscase, that failure alone constitutes ineffective assistance of counsel because it was "so 'egregiousand prejudicial' as to deprive [the] defendant of his constitutional right" to a fair trial (People v Turner, 5 NY3d 476,480 [2005]). Contrary to the People's contention, the statement of defense counsel in response toa question by the court concerning the CPL 330.30 motion did not establish that his failure toobject to the admission of such prejudicial information was part of a legitimate trial strategy(cf. People v Pierce, 303 AD2d 966, 966-967 [2003], lv denied 100 NY2d 565[2003]).
Based on our resolution of this issue, we see no need to reach defendant's remainingcontention. Present—Hurlbutt, J.P., Martoche, Centra, Pine and Gorski, JJ.