Opinion
1188
May 28, 2002.
Order, Supreme Court, Bronx County (William Mogulescu, J.), entered on or about September 6, 2000, which, upon remittitur from this Court ( 273 A.D.2d 48) and after a hearing, granted defendant's motion to vacate a judgment, same court (Frank Torres, J.), rendered October 30, 1996, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree, and sentencing him, as a second felony offender, to a term of 15 years to life, unanimously affirmed.
RAFAEL CURBELO, for appellant.
JOANNE LEGANO ROSS, for defendant-respondent.
Before: Williams, P.J., Nardelli, Rosenberger, Marlow, Gonzalez, JJ.
The record supports the hearing court's determination ( 183 Misc.2d 587) that defendant was deprived of effective assistance because his trial counsel did not request the court to instruct the jury, pursuant toPeople v. Ryan ( 82 N.Y.2d 497), that the People were required to prove that defendant knew he possessed the weight of drugs specified by the statute. There is no basis upon which to disturb the court's determinations concerning credibility. The hearing evidence established that counsel's failure to request a Ryan charge was an error and not a strategic choice. Counsel would have requested such a charge had he realized that Ryan was applicable to defendant's case because of the date of the crime, notwithstanding the fact that the case was tried after the enactment of Penal Law § 15.20(4), eliminating the knowledge-of-weight requirement. Given the trial evidence, a Ryan charge would have been compatible with defendant's trial strategy, and the absence of such a charge was prejudicial. Accordingly, counsel's lack of awareness of the applicability of Ryan seriously affected the fairness of the proceedings as a whole (see, People v. Benevento, 91 N.Y.2d 708, 713-714).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.