        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1399
KA 10-00852
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYRONE A. WEBB, DEFENDANT-APPELLANT.


WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered February 10, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree and criminal possession of a weapon in the third
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in
the third degree (§ 265.02 [1]). We agree with defendant that he was
deprived of effective assistance of counsel based on, inter alia,
defense counsel’s elicitation of testimony from defendant concerning a
prior conviction that had been excluded by County Court. We therefore
reverse.

     The court’s Sandoval ruling permitted the People to cross-examine
defendant regarding three of his prior convictions but precluded any
questions with respect to his fourth prior conviction, for attempted
criminal sale of a controlled substance in the third degree (Penal Law
§§ 110.00, 220.39 [1]). Despite obtaining that ruling, defense
counsel asked defendant to list his prior convictions, thereby
eliciting testimony regarding the fourth prior conviction that had
been excluded. To compound the error, defense counsel did not object
to the prosecutor’s additional questions regarding the underlying
facts of that conviction, including the facts that defendant sold
drugs to an undercover officer and then ran from the police prior to
apprehension. The evidence of defendant’s flight from the police was
particularly prejudicial here, inasmuch as the People presented
evidence that defendant fled from the police in the case before us.
Thus, “defense counsel’s inexplicable . . . elicit[ation of] the
                                 -2-                          1399
                                                         KA 10-00852

[fourth] prior conviction simply cannot be construed as a misguided
though reasonably plausible strategy decision . . . The error of
[defense] counsel herein is sufficiently serious to have deprived
defendant of a fair trial, especially when defendant’s credibility was
of primary importance in establishing his defense” (People v
Ofunniyin, 114 AD2d 1045, 1047 [internal quotation marks omitted]; see
People v Zaborski, 59 NY2d 863, 864-865).

     In addition, defendant was deprived of effective assistance of
counsel based on defense counsel’s failure to object when the
prosecutor elicited testimony from a defense witness on cross-
examination that defendant’s nickname was “Threat,” and based on
defense counsel’s failure to object to the prosecutor’s comment on
summation that the jury should consider defendant’s nickname as
evidence that he possessed the weapon at issue (see People v
Lauderdale, 295 AD2d 539, 540-541; see also People v Ramos, 139 AD2d
775, 776-777, appeal dismissed 73 NY2d 866; see generally People v
Santiago, 255 AD2d 63, 65-66, lv denied 94 NY2d 829). The People’s
contention that the prosecutor elicited the nickname to establish the
witness’s familiarity with defendant is belied by the record. The
witness testified that he had known defendant for 16 years, and thus
there was no issue regarding his identification of defendant.
Furthermore, the prosecutor asked the jurors on summation whether they
thought defendant’s nickname was Threat “because he was riding a bike
down the street with no bell on it? You think [his nickname was]
Threat because he was riding down the street drinking a beer? No.
[His nickname was] Threat because he possessed that gun.”

     Defendant’s remaining contentions are academic in light of our
determination.




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
