| People v Gordian |
| 2012 NY Slip Op 06854 [99 AD3d 538] |
| October 11, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v AlanaGordian, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Lindsey Ramistella of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Robert A. Neary, J.), rendered March 12, 2009,convicting defendant, after a jury trial, of criminal possession of a weapon in the second andfourth degrees, and possession of ammunition, and sentencing her to an aggregate term of3½ years, unanimously reversed, on the law, and the matter remanded for a new trial.
Defendant did not receive effective assistance of counsel. The existing record establishes thattrial counsel's performance was prejudicially deficient based on her demonstrated lack ofcomprehension of a material provision of law.
Defendant was arrested while carrying a bag containing an unloaded .22 caliber revolver andeight loose rounds of .22 caliber ammunition. Criminal possession of a weapon in the seconddegree involves the possession of a "loaded firearm" outside the defendant's home or place ofbusiness (Penal Law § 265.03 [3]). Penal Law § 265.00 (15) provides that loadedfirearm means any "firearm loaded with ammunition or any firearm which is possessed by onewho, at the same time, possesses a quantity of ammunition which may be used to discharge suchfirearm." There is no dispute that defendant possessed a loaded weapon under this legaldefinition.
Nevertheless, throughout the entire case, defense counsel focused on the legally irrelevantfact that the cartridges were not in the revolver at the time of the arrest. This was the essence ofthe entire defense strategy at trial. Moreover, it is clear that counsel was not simply trying toappeal to the jury for sympathy or nullification. Counsel's legal arguments to the court, outsidethe presence of the jury, also demonstrated the same lack of understanding of the Penal Lawconsequences of possessing an unloaded firearm accompanied by ammunition.
Under the circumstances, trial counsel could not have been able to advise defendant properlyas to whether it was in her best interest to accept the plea offer that had been available.Furthermore, the record indicates that counsel could have pursued a more appropriate line ofdefense at trial had she realized that focusing on the unloaded condition of the weapon was futile.
Accordingly, we find that defendant was denied effective assistance and is entitled to a newtrial (see People v Fleming, 58AD3d 527 [1st Dept 2009]; People v Logan, 263 AD2d 397, 398 [1st Dept 1999],lv withdrawn 94 NY2d 798 [1999]; see also People v Butler, 94 AD2d 726 [2d[*2]Dept 1983]). The existing record is sufficient to determinethis issue, and we reject the People's arguments to the contrary. We decline to address defendant'sremaining claims. Concur—Andrias, J.P., Friedman, Moskowitz, Freedman andManzanet-Daniels, JJ.