DEFENSE COUNSEL’S MISUNDERSTANDING OF THE ELEMENTS OF A CHARGED OFFENSE RESULTED IN THE PRESENTATION OF EVIDENCE BY THE DEFENDANT WHICH PROVED THE COMMISSION OF THE OFFENSE; DEFENSE COUNSEL WAS INEFFECTIVE; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for failing to understand the nature of one of the criminal charges and presenting evidence which proved defendant’s commission of the charged offense. “Penal Law § 120.05(7) provides that a person is guilty of assault in the second degree when “[h]aving been charged with or convicted of a crime and while confined in a correctional facility, . . . with intent to cause physical injury to another person, he causes such injury to such person or to a third person” … . Defendant presented evidence he intended to punch another inmate but struck a corrections officer, thereby proving all the elements of the offense:

… [T]he record reveals that defense counsel’s trial strategy rested on the erroneous theory that defendant could not be found guilty of the charged offense if it could be proved that the correction officer was not the intended target of the assault. At trial, defense counsel called his client to testify. Defendant testified that while incarcerated, he became involved in an altercation with another inmate. He explained that during the encounter, he threw a “sucker punch” at that inmate, but in so doing, struck the correction officer instead. Defendant averred that the correction officer was not his intended target.

During summation, defense counsel compounded this error by incorrectly stating the required elements of Penal Law § 120.05(7) and declaring that in order to find defendant guilty of the charge, it must be proved that defendant intended to hit the correction officer. However, proving that the intended target of the assault was the correction officer is not a material element of the crime charged. Thus, counsel’s defense strategy constituted an admission to the jury of the elements necessary to prove the assault in the second-degree count (see Penal Law § 120.05[7]). Moreover, defense counsel’s argument to the court that he did not believe that the prosecution could amend its theory based on defendant’s testimony demonstrated yet another critical misunderstanding, of settled New York law that pertained to the entire defense strategy … . People v Calderon, 2025 NY Slip Op 05755, First Dept 10-16-25

Practice Point: Here, defense counsel’s failure to understand the elements of a charged offense constituted ineffective assistance, resulting in reversal and a new trial.​