PEOPLE v. FLEMING

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Delroy FLEMING, Defendant-Appellant.

Decided: January 20, 2009

MAZZARELLI, J.P., FRIEDMAN, BUCKLEY, ACOSTA, FREEDMAN, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Jennifer Eisenberg of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Ira R. Globerman, J.), rendered April 8, 2003, as amended April 20, 2006, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree, sentencing him to a term of 8 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 that trial counsel's overall performance was prejudicially deficient (see People v. Droz, 39 N.Y.2d 457, 384 N.Y.S.2d 404, 348 N.E.2d 880 [1976] ).   Counsel's demonstrated her lack of basic comprehension of criminal law and procedure through her persistent frivolous conduct at multiple stages of the proceeding, including, among other things, pretrial motion practice, a purported interlocutory appeal, the suppression hearing, requests for jury instructions, posttrial motions and sentencing.   Counsel's woeful lack of knowledge approached the traditional “farce and a mockery of justice” standard (see People v. Tomaselli, 7 N.Y.2d 350, 353-354, 197 N.Y.S.2d 697, 165 N.E.2d 551 [1960] ).   This case presented an issue of whether defendant was aware of the illicit contents of a package he accepted in a controlled postal delivery.   Counsel completely and prejudicially misunderstood and mishandled this issue, and defendant was deprived of a fair trial as a result.   We find counsel's unfamiliarity with the sentencing parameters for defendant's crime particularly troubling in view of the fact that before trial defendant received a beneficial plea offer of three to nine years.

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