| People v Douglas |
| 2018 NY Slip Op 02397 [160 AD3d 436] |
| April 5, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Appellant, v Amir Douglas, Respondent. The People of the State of New York,Respondent, vAmir Douglas, Appellant. |
Darcel D. Clark, District Attorney, Bronx (Lori A. Farrington of counsel), forappellant/respondent.
Christina Swarns, Office of the Appellate Defender, New York (Joseph M. Nursey ofcounsel), for respondent/appellant.
Judgment, Supreme Court, Bronx County (Seth L. Marvin, J.), rendered May 24, 2007,convicting defendant, after a jury trial, of gang assault in the first degree and two counts ofassault in the second degree, and sentencing him, as a persistent violent felony offender, to anaggregate term of 25 years to life, unanimously reversed, as a matter of discretion in the interestof justice, and the matter remanded for a new trial. Appeal from order, Supreme Court, BronxCounty (April Newbauer, J.), entered on or about March 23, 2017, which granted defendant'sCPL 440.10 motion to vacate the judgment of conviction, unanimously dismissed, asacademic.
We conclude that the lack of an accomplice corroboration charge (see CPL 60.22)warrants a new trial, and we reach this unpreserved issue in the interest of justice. The People'scase against defendant was based almost entirely on the testimony of three witnesses, each ofwhom was either an accomplice as a matter of law or a person who could reasonably be viewedby the jury as an accomplice as a matter of fact (see People v Sage, 23 NY3d 16, 23 [2014]; People vBerger, 52 NY2d 214, 219 [1981]). While there was some nonaccomplice evidence, it wasfar from extensive (see Sage, 23 NY3d at 27-28). In fact, one of the only other witnessesundermined the accomplice testimony by establishing that defendant was not initially identifiedas a perpetrator of the underlying assault.
Moreover, we conclude that counsel's admittedly nonstrategic failure to request theinstruction constituted ineffective assistance under all the circumstances of the case (see People v Caban, 5 NY3d 143,152 [2005]).
We have considered and rejected defendants' arguments for dismissal, addressed to the [*2]sufficiency and weight of the evidence. Since we are ordering a newtrial, we find it unnecessary to reach any other issues raised on defendant's appeal from thejudgment. In light of the foregoing, the People's appeal from the order granting defendant's CPL440.10 motion is academic. Concur—Acosta, P.J., Tom, Oing, Moulton, JJ.