Brooklyn appeals court throws out gun possession charge, cites ineffective counsel

October 8, 2013 By Charisma L. Miller, Esq Brooklyn Daily Eagle

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The Appellate Division, 2nd Department vacated a defendant’s gun possession conviction on the grounds that he was not represented — at the trial level — by an effective defense counsel.

Tony Canales was convicted in 2008 of murder of Antonio Bruce and criminal possession of a weapon. At trial, Brooklyn prosecutor Lawrence Fredella showed a videotape of Canales chasing a man purported to be Bruce who is seen falling and tumbling out of view. Fredella claimed at trial that Bruce fell as a result of being shot by Canales; Canales’ trial attorney conceded that assumption during his closing argument.

After the jury began deliberating, Canales raised the argument that the man being chased in the video was in fact not Bruce. Canales was convicted and filed a post-judgment motion to vacate the murder conviction and the gun possession charge on the grounds of prosecutorial misconduct and ineffective counsel.

Brooklyn Supreme Court, in reviewing Canales’ motion, found that “there was evidence from which the prosecutor could have realized that the person in the videotape was not Bruce, including the fact that the victim was not wearing the same clothes as the person in the videotape,” court papers revealed.

As egregious as the prosecutor’s error was, the court found Canales’ counsel to have made errors to be of a more drastic nature. Canales’ attorney never showed him the video or allowed him the opportunity to refute it. Further, trial counsel could not recall “why he conceded that the videotape depicted the defendant chasing the victim, and he could not recall whether the defendant ever gave him the names of witnesses who could rebut this fact.”

The lower court vacated Canales’ murder conviction but upheld the gun possession charge, noting, “The deficiencies in the performance of the prosecutor and defense counsel had no effect on the defendant’s conviction of criminal possession of a weapon.”

The Appellate Division disagreed, finding that under New York law, claims of ineffective counsel place an emphasis on “the fairness of the process as a whole rather than its particular impact on the outcome of the case.” In Canales’ case, though the Appellate Division found that there was “strong evidence that the [Canales’] possessed a loaded firearm during the incident in question,” the issue is not whether or not defense counsel was ineffective in the defense of the gun possession charge but whether or not defense counsel was ineffective in the entire murder trial, which incorporated the gun possession charge.

The appellate court ordered a new trial for the gun possession charge, finding that Canales “was denied his fundamental right to counsel.”

Appellate Division, 2nd Department, Justices Peter Skelos, Daniel Angiolillo, Sheri Roman and Sylvia Hinds-Radix issued the court’s ruling.