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

The PEOPLE, etc., respondent, v. Herve JEANNOT, appellant.

Decided: February 24, 2009

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO and RANDALL T. ENG, JJ. Aronwald & Pykett, White Plains, N.Y. (William I. Aronwald of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Peter A. Weinstein and Laurie K. Gibbons of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Berkowitz, J.), rendered November 1, 2006, convicting him of murder in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the County Court, Nassau County, for a new trial.

The defendant was convicted of murder in the first degree and criminal possession of a weapon in the second degree.   While cross-examining one of the investigating officers during the trial, defense counsel offered into evidence a statement implicating the defendant made to the police by another alleged participant in the crime.   The defendant contends that, as a result, he was denied the effective assistance of trial counsel (see U.S. Const., 6th Amend.;  N.Y. Const., art. I, § 6).

“To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure” (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   Recognizing that in evaluating the defendant's claim we must “avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis” (People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400), we nevertheless conclude that the defendant has satisfied that standard here by demonstrating that there was no strategic or other legitimate explanation for defense counsel's introduction into evidence of a statement that implicated the defendant, which would not otherwise have been admissible (see Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162;  Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476;  People v. Eastman, 85 N.Y.2d 265, 624 N.Y.S.2d 83, 648 N.E.2d 459).

The defendant's remaining contention is without merit.

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