Opinion
June 10, 1974
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 10, 1972, convicting him of manslaughter in the second degree, upon a jury verdict, and sentencing him to an indeterminate prison term not to exceed seven years. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. After approximately five hours of deliberation, the jury delivered a note to the trial court which reflected the jury's doubt as to whether it was defendant who had inflicted the fatal stab wound. Shortly thereafter, the jury found defendant guilty of manslaughter in the second degree, under the first count of the indictment (which charged common-law murder). In our opinion, defendant's representation at the trial by assigned counsel was so ineffective as to amount to a deprivation of his right to counsel and to a fair trial. Under the circumstances at bar it cannot be said beyond a reasonable doubt that such representation did not make or could not have made the difference between the guilty verdict and an acquittal. Martuscello, Acting P.J., Latham, Christ, Benjamin and Munder, JJ., concur.