| People v Webb |
| 2011 NY Slip Op 09461 [90 AD3d 1563] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tyrone A.Webb, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedFebruary 10, 2010. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) andcriminal possession of a weapon in the third degree (§ 265.02 [1]). We agree withdefendant that he was deprived of effective assistance of counsel based on, inter alia, defensecounsel's elicitation of testimony from defendant concerning a prior conviction that had beenexcluded by County Court. We therefore reverse.
The court's Sandoval ruling permitted the People to cross-examine defendantregarding three of his prior convictions but precluded any questions with respect to his fourthprior conviction, for attempted criminal sale of a controlled substance in the third degree (PenalLaw §§ 110.00, 220.39 [1]). Despite obtaining that ruling, defense counsel askeddefendant to list his prior convictions, thereby eliciting testimony regarding the fourth priorconviction that had been excluded. To compound the error, defense counsel did not object to theprosecutor's additional questions regarding the underlying facts of that conviction, including thefacts that defendant sold drugs to an undercover officer and then ran from the police prior toapprehension. The evidence of defendant's flight from the police was particularly prejudicialhere, inasmuch as the People presented evidence that defendant fled from the police in the casebefore us. Thus, "defense counsel's inexplicable . . . elicit[ation of] the [fourth]prior conviction simply cannot be construed as a misguided though reasonably plausible strategydecision . . . The error of [defense] counsel herein is sufficiently serious to havedeprived defendant of a fair trial, especially when defendant's credibility was of primaryimportance in establishing his defense" (People v Ofunniyin, 114 AD2d 1045, 1047[1985] [internal quotation marks omitted]; see People v Zaborski, 59 NY2d 863, 864-865[1983]).[*2]
In addition, defendant was deprived of effectiveassistance of counsel based on defense counsel's failure to object when the prosecutor elicitedtestimony from a defense witness on cross-examination that defendant's nickname was "Threat,"and based on defense counsel's failure to object to the prosecutor's comment on summation thatthe jury should consider defendant's nickname as evidence that he possessed the weapon at issue(see People v Lauderdale, 295 AD2d 539, 540-541 [2002]; see also People vRamos, 139 AD2d 775, 776-777 [1988], appeal dismissed 73 NY2d 866 [1988];see generally People v Santiago, 255 AD2d 63, 65-66 [1999], lv denied 94 NY2d829 [1999]). The People's contention that the prosecutor elicited the nickname to establish thewitness's familiarity with defendant is belied by the record. The witness testified that he hadknown defendant for 16 years, and thus there was no issue regarding his identification ofdefendant. Furthermore, the prosecutor asked the jurors on summation whether they thoughtdefendant's nickname was Threat "because he was riding a bike down the street with no bell onit? You think [his nickname was] Threat because he was riding down the street drinking a beer?No. [His nickname was] Threat because he possessed that gun."
Defendant's remaining contentions are academic in light of our determination.Present—Smith, J.P., Fahey, Carni, Sconiers and Gorski, JJ.