Opinion
November 26, 1990
Appeal from the Supreme Court, Queens County (Golia, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered; and it is further,
Ordered that the appeal from the order is dismissed in light of our determination on the appeal from the judgment. No questions of fact have been raised or considered.
On appeal, the defendant contends that he was deprived of the effective assistance of trial counsel. We agree. It has been consistently recognized that "[w]hat constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation" (People v. Baldi, 54 N.Y.2d 137, 146). Although the courts have been reluctant to brand an attorney's performance as ineffective when the course of conduct complained of can be characterized as mere losing tactics or strategy (see, People v. Zaborski, 59 N.Y.2d 863), in the case at bar, defense counsel's errors cannot be construed as a "misguided though reasonably plausible [defense] strategy" (People v. Bell, 48 N.Y.2d 933, 935). The errors here were sufficiently serious to have deprived the defendant of a fair trial.
The record shows that during the course of the trial, defense counsel opened the door to unduly prejudicial information which would have otherwise been inadmissible, including a prior arrest for possession of marihuana which had been excluded by the court's prior Sandoval ruling (see, People v. Wiley, 120 A.D.2d 66; People v. Ofunniyin, 114 A.D.2d 1045); delivered a cursory summation, mostly dwelling on the defendant's prior criminal record (see, People v. Winston, 134 A.D.2d 546); failed to object to an erroneous jury charge and to inflammatory comments made by the prosecutor (see, People v. Simmons, 110 A.D.2d 666); and failed to adequately prepare for trial (see, People v. Droz, 39 N.Y.2d 457).
While the various errors committed by defense counsel, considered separately, may not have constituted ineffective assistance of trial counsel, their cumulative effect was to deprive the defendant of meaningful representation in a case where the evidence of guilt was not overwhelming. Harwood, J.P., Balletta, Miller and O'Brien, JJ., concur.