PEOPLE v. BROWN (1999)

Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z. Patsalos, J.), rendered February 26, 1996, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

We agree with the defendant that he did not receive the effective assistance of counsel during the trial that resulted in the instant conviction.   The People charged the defendant with criminal possession of a weapon in the third degree under Penal Law § 265.02.   While the trial court granted the defendant's motion to suppress a gun to the extent of granting a hearing on the issue of standing, his trial counsel abandoned the application prior to the hearing.   However, the record does not reveal any strategic or other legitimate explanation for counsel's withdrawal of the application to suppress the gun prior to the hearing (see, People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   Further, the record also indicates that defense counsel exhibited confusion as to the theory of the People's case.

Since we are granting a new trial, we also note that it was error for the trial court not to instruct the jury on the accomplice corroboration charge contained in CPL 60.22, since the record reveals that the People's rebuttal witness was an accomplice as a matter of law (see, People v. Ramos, 68 A.D.2d 748, 418 N.Y.S.2d 103;  People v. Korjus, 54 A.D.2d 720, 387 N.Y.S.2d 473).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.