People v. Powell

• Decision Date: 25 November 2020
• Docket Number: 2013–05606,Ind.No. 10308/10
• Parties: The PEOPLE, etc., respondent, v. Ragene POWELL, also known as Ragene Powell-Dickerson, appellant.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1266

132 N.Y.S.3d 882 (Mem)

The PEOPLE, etc., respondent,

v.Ragene POWELL, also known as Ragene Powell-Dickerson, appellant.

2013–05606

Ind.No. 10308/10

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

November 25, 2020

Craig S. Leeds, New York, NY, for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, and Julian Joiris of counsel), for respondent.

RUTH C. BALKIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated June 14, 2017 ( People v. Powell, 151 A.D.3d 889, 53 N.Y.S.3d 839 ), affirming a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered May 13, 2013. By decision and order on motion of this Court dated February 6, 2020, the appellant was granted leave to serve and file a brief on the issues of whether there was error in connection with the handling of a jury note under People v. O'Rama , 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 and whether the appellant's sentence was excessive, and the application was held in abeyance in the interim. The parties have now filed their respective briefs.

ORDERED that the application is granted, and the decision and order of this Court dated June 14, 2017, is vacated; and it is further,

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

As conceded by the People, and for the reasons set forth in the decision and order on the appeal of the appellant's codefendant Jimmy Copeland (see People v. Copeland, 175 A.D.3d 1316, 109 N.Y.S.3d 94 ), the Supreme Court failed to comply with CPL 310.30, in accordance with the procedures set forth in People v. O'Rama , 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 for the handling of jury notes (see People v. Walston, 23 N.Y.3d 986, 989–990, 991 N.Y.S.2d 24, 14 N.E.3d 377 ; People v. Adderly, 176 A.D.3d 728, 729, 107 N.Y.S.3d 713 ).

Furthermore, there is no strategic or other legitimate explanation for appellate counsel's failure to make this argument on appeal (see People v. Rivera, 71 N.Y.2d 705, 708–709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; People v. Grant, 187 A.D.3d 1043, 131 N.Y.S.3d 276 [2d Dept.] ; cf. People v. Goodwine, 184 A.D.3d 736, 736, 124 N.Y.S.3d 259 ). This is a rare case in which a single failing in an otherwise competent performance is so egregious and prejudicial as to deprive the appellant of his constitutional right to the effective assistance of counsel (see People v. Feliciano, 17 N.Y.3d 14, 21, 926 N.Y.S.2d 355, 950 N.E.2d 91 ). Accordingly, we grant the application for a writ of...