The People, Respondent,v.Demetrius McGee, Appellant.

Brief

N.Y.February 5, 2013

To be argued by: Karen C. Russo-McLaughlin Buffalo, New York (716) 853-9555 Estimated time: 15 minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, VS DEMETRIUS McGEE, Appellant. BRIEF FOR APPELLANT Erie County Indictment No. 2008- 1258 DAVID C. SCHOPP Attorney for Appellant THE LEGAL AID BUREAU OF BUFFALO, INC. 237 Main Street - Suite 1602 Buffalo, New York 14203 BARBARA J. DAVIES Chief Attorney Appeals Unit KAREN C. RUSSO-MCLAUGHLIN, of Counsel DATE: July 1 l , 2 0 12 TABLE OF CONTENTS PAGE ..................................................................................................... TABLE OF CONTENTS i TABLE OF AUTHORITIES ............................................................................................. ii QUESTIONS PRESENTED ............................................................................................... 1 STATEMENT OF JURISDICTION .................................................................................. 2 ................................................................................................... NATURE OF THE CASE 3 FACTS ................................................................................................................................... 6 ARGUMENT ...................................................................................................................... 12 POINT I .............................................................................................................................. 12 BECA USE THE PROOF WAS INSUFFICIENT AS A MA TTER OF LA W TO SUSTAIN HIS CONVICTIONS OF ATTEMPTED MURDER IN THE FIRST DEGREE AND RECKLESS ENDANGERMENT IN THE FIRST DEGREE APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS UNDER THE LAW (US CONST., AMENDS. 5) 14; NY CONST., ART. I, SECTION 6). .................................................................................... 12 POINT I1 ............................................................................................................................. 29 APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (US CONST., AMENDS. 6,14; NY CONST., ART. I, SECTION 6)) REQUIRING THE REVERSAL OF HIS CONVICTION. ..................... 29 .................................................................................................................. CONCLUSION 37 TABLE OF AUTHORITIES CASES .................................................................................................. Braxton v US. 500 US 344 1 4 ................................................................................................... In re Winship. 397 US 358 14 .................................................................................. Jackson v Virginia et al. 443 US 307 -14 ........................................................................................... Miner v New York. 443 US 912 27 ................................................................................ People v Acosta. 80 NY2d 665 14. 15. 16 People v Baldi. 54 NY 137 ...................................................................................... 2 3 1. 36 People v Benevento. 91 NY2d 708 ...................................................................................... 29 People v Bennett. 29 NY2d 462 .......................................................................................... 3 6 ........................................................................................... People v Booden. 69 NY2d 185 27 People v Borrero. 26 NY2d 430 .......................................................................................... 24 People v Bracey. 41 NY2d 296 ............................................................................................ 16 People v Brasch. 193 NY 46 ................................................................................................ 27 People v Caban. 5 NY3d 143 .............................................................................................. 30 People v Caban. 5 NY3d at 152 .......................................................................................... 30 People v Cabassa. 79 NY2d 722 ....................................................................... 2 2 24. 25. 30 People v Chrysler. 233 AD2d 928 ................................................................................. 3 34 People v Comfort. 1 13 AD2d 420 .................................................................................. 2 27 People v Cuozzo. 292 NY 85 ......................................................................................... 2 27 People v Daniels. 37 NY2d 624 .......................................................................................... -26 . . 11 People v Hines. 97 NY2d 56 ................................................................................................ 34 ..................................................................................... People v Hobot. 84 NY2d 1021 2 36 People v Hunter. 35 AD3d 1228 .......................................................................................... 33 People v Jaehne. 103 NY 182 .............................................................................................. 27 People v Kassebaum. 95 NY2d 6 1 1 ..................................................................................... 15 People v LaBelle. 18 NY2d 405 ........................................................................................... 20 People v Lane, 60 NY2d 748 ............................................................................................... 31 People v Lipsky, 57 NY2d 560 ............................................................................................. 27 People v Lytton, 257 NY 3 10 ............................................................................................... 27 People v Mahboubian, 74 NY2d 174 ................................................................................... 16 People v Mills, 178 NY 274 ............................................................................................... 1 9 People v . Monaco, 14 NY 2d 43 .......................................................................................... 20 People v Ozarowski, 38 NY2d 481 ...................................................................................... 24 People v Reade, 13 NY2d 42 ............................................................................................... 27 People v Rizzo, 246 NY 334 .................................................................................... 15, 16, 17 People v Safian, 46 NY2d 181 ............................................................................................. 27 People v Santana, 156 AD2dd 736 ..................................................................................... -34 People v Sommerset, 1 00 AD2d 947 ................................................................................... 26 People v Steele, 93 AD3d 492 ............................................................................................. 18 People v Stoby, 4 AD3d 766 ................................................................................................ 18 People v Sullivan, 173 NY 122 .......................................................................................... 1 6 People v Turner, 5 NY3d 476 ............................................................................................. -30 People v Welsh. 207 AD2d 1025 ......................................................................................... 34 People v Werblow. 24 1 NY 55 ............................................................................................. 17 People v FVhite. 176 NY 331 ................................................................................................ 26 People v . Wells. 7 NY3d 5 1 ................................................................................................ -24 United States v Fernandez.Antonia. 278 F.3d 150 .............................................................. 14 United States v Stroman. 420 Fed . Appz . 100 ................................................................... 1 4 STATUTES CPL 60.50 ............................................................................................................................ 26 ............................................................................................................................ CPL 450.90 2 Penal Law 5 20.00 ........................................................................................................... 3 12 .............................................................................................................. Penal Law 5 110.00 15 .......................................................................................... Penal Law $ 9 1 10.00/120.05 (1) 30 Penal Law 5 120.05 (1) ........................................................................................................ 30 Penal Law 5 120.25 ............................................................................................................ 1 2 Penal Law 5 125.27 (1) (a)(i) ..................................................................................... 3 13, 14 Penal Law 5 ll0.00/125.259(1) (a) (i) ................................................................................. 12 Penal Law $ 5 165.45 (2) ........................................................................................................ 3 Penal Law, 5 1044, subd . 2 .................................................................................................. 20 OTHER AUTHORITIES 1 Burdick. The Law of Crimes. $ 22 1. p . 297 ...................................................................... 20 7 Wigmore. Evidence $ 2071. at 5 1 1 [Chadbourn rev] ....................................................... 27 CONSTITUTIONAL PROVISIONS NY Const.. art . I. $6 ....................................................................................................... 12. 29 US Const.. Amend . 5 .......................................................................................................... -12 US Const.. Amend . 6 ........................................................................................................... 29 US Const.. Amend 14 .................................................................................................. 1 2 29 QUESTIONS PRESENTED 1. Was the proof insufficient as a matter of law to establish the charges of attempted murder in the first degree pursuant to Penal Law $ 8 110.001125.27 (l)(a)(i), 20.00 and reckless endangerment in the first degree pursuant to Penal Law 8 120.25, 20.00, thereby denying appellant his constitutional right to a fair trial and due process (US Const., Amends. 5, 14; NY Const., art. I, section 6)? Answer of court below: The court below rejected appellant's contention that the proof was legally insufficient to support the convictions. 2. Was appellant denied his constitutional right to the effective assistance of counsel? Answer of the court below: The court below concluded that appellant had not been denied effective assistance of counsel. STATEMENT OF JURISDICTION As to POINT I: This Court has jurisdiction to entertain this issue because it was preserved by timely specific objection of defense counsel in the court of first impression (Counsel's motion to dismiss at pgs. 988-989 of the trial transcript; pgs. 1078-1079 of the appendix); by the People's objection to the motion to dismiss at pgs. 989-990 of the trial transcript; pgs. 1079-1080 of the appendix) and the trial court's denial of appellant's motion to dismiss(p.990 of the trial transcript; p. 1080 of the appendix). In addition, the Appellate Division reviewed this issue. As to Point 11: This Court has jurisdiction to entertain this issue because the right to effective assistance of counsel is a constitutionally protected right and CPL 450.90 authorizes such review. In addition, the Appellate Division reviewed this issue. NATURE OF THE CASE This is an appeal from appellant's judgment of conviction entered in County Court, Erie County (Troutman J.) on April 14, 2009. Initially, three individuals were charged under Indictment No. 2008-1258; however, the charges against defendant Andre B. Goldsmith were dismissed prior to trial. Appellant, Demetrius McGee, and co- defendant, Mychal Carr, were charged pursuant to Penal Law § 20.00, under counts one and two of the indictment of this six-count indictment. Mychal Carr was the sole individual charged under counts three and four. The remaining counts of the indictment were dismissed prior to trial. Counts one and two of the indictment charged appellant and his co- defendant respectively with attempted murder in the first degree [Penal Law $8 110.00/125.27(1)(i), 20.001 and reckless endangerment in the first degree [Penal Law $5 165.45 (2), 20.001. The charges allegedly arose when the appellant, as the driver of the vehicle, led the Buffalo Police on a high-speed chase through the streets of the City of Buffalo while Mychal Carr fired gunshots from the vehicle. Ostensibly those gunshots were intended for one of the police officers involved in the chase. Following the Huntley hearing held on October 21, 2008 the court determined that the statements made by appellant were admissible (Memorandum and Decision, granted January 27, 2009). The court's Huntley decision is not challenged on appeal. The People presented twenty-four witnesses to testify on its case in chief. Neither the appellant nor his co-defendant testified at trial. At the close of the People's case appellant moved for a trial order of dismissal on the basis that the proof was insufficient as a matter of law to make out a prima facie case against appellant (988-989) (Numbers in parentheses refer to pages in the trial transcript). Counsel renewed appellant's motion to dismiss following the court's charging conference based upon the People's failure to prove its case beyond a reasonable doubt. After several jury notes, the jury rendered its verdict finding appellant guilty under both counts one and two of the indictment. Appellant was sentenced on May 20, 2009 to an indeterminate sentence of imprisonment of 25 years to life under count one of the indictment, attempted murder in the first degree, and to an indeterminate sentence of two and one-third to seven years under count two of the indictment, reckless endangerment in the first degree, to run concurrently with each other. The Appellate Division, Fourth Judicial Department unanimously affirmed the appellant's judgment of conviction, rejecting appellant's contention that the evidence was insufficient to support the conviction, the court found that there was sufficient evidence to establish appellant's shared intent with his co-defendant. Similarly, the Appellate Division concluded that the charge of reckless endangerment had been proved beyond a reasonable doubt. Finally, the court below disagreed with the appellant that he had been denied his constitutional right to effective assistance of counsel, ruling that appellant had not been denied a fair trial and that defense counsel provided meaningful representation. By order of this Court, David C. Schopp, Executive Attorney of the Legal Aid Bureau of Buffalo, Inc. was assigned to perfect appellant's appeal (A-2)(Numbers in parentheses preceded by the letter "A" refer to pages in the appendix). The People of the State of New York have been represented throughout these proceedings by the District Attorney of Erie County. FACTS Buffalo Police Officer Efrain Colon and Officer Roland Clark, Jr. were in separate marked patrol cars when they responded to a 91 1 radio call that shots were being fired from a gold Equinox traveling on Cambridge Street in the City of Buffalo (508, 509). Colon left the stationhouse in pursuit and was approaching Cambridge Street when he heard a series of shots and decided to turn down Cambridge (5 10). As Colon turned onto Cambridge, the Equinox traveled past him at a very high rate of speed. Officer Clark, who was traveling approximately two car lengths behind Officer Colon, followed Colon and as he turned north onto Cambridge, he attempted to block the path of the gold Equinox with his patrol car (574). In an evasive move, the gold Equinox shot around Clark's patrol car and as it did, the front end of Clark's car collided with the rear end of the Equinox (574, 617). The Equinox proceeded across East Ferry Street southbound on Goodyear (574). Clark spun his patrol car around and chased after the gold Equinox (574). As Clark pursued the Equinox, he was able to narrow the distance between his patrol car and the Equinox (577). The vehicles were traveling at speeds in excess of 65 miles per hour (577). With only one car length between the two vehicles, according to Clark, the driver of the Equinox maneuvered his vehicle into the oncoming lane of traffic and the front seat passenger leaned out the window and fired two shots at the patrol car (579). Even though Clark was unable to discern whether the fired shots had hit the patrol car, he immediately dispatched the events to the radio, reporting that shots had been fired at the police vehicles (579). After firing the two shots, the Equinox immediately returned to the proper lane of traffic (580). Clark testified further that the maneuver undertaken by the driver of the Equinox did not provide as clear a field of fire at his vehicle as it could have had had the driver traveled parallel to his vehicle (581). The Equinox continued the chase through the City of Buffalo, sometimes reaching speeds of 100 miles per hour (5 12, 585). Clark testified that during the course of the chase, the passenger again leaned out the window of the Equinox for a brief moment, displaying the gun, but not firing (583-584). Clark was unable to identifjr any of the passengers in the vehicle (620), except to say that one of the passengers wore a black coat (584). Clark periodically radioed the course of the chase (585) and when "B District" (District "B" is a specific unit of the Buffalo Police force assigned to cover a designated area of the city) was notified of the chase, they joined in, appearing immediately to offer their assistance (585). Three additional patrol vehicles were now in pursuit of the Equinox (586). Because the additional patrol cars forced Clark to brake and slow down to avoid a collision, the Equinox gained ground and ultimately, the patrol cars lost sight of it (586). At this point there were police vehicles closing in on the entire area from all different sides of the city, but for a brief period, the Equinox was nowhere to be found (587). Shortly thereafter, the abandoned Equinox was located in Johnson Park, in the middle of the road (587). Thomas Miskell resided at 274 Delaware Avenue in the City of Buffalo (63 1). On the evening of May 14,2008 at approximately 7:30, Miskell had taken a walk to the gas station. On his return walk home, he walked through the parking lot adjacent to his building and noticed three gentlemen sitting on a bench (633). He overheard the men saying that the cops were coming and observed two of the men flee as they jumped the fence (633). The third man bypassed Miskell and tried to enter the apartment where he resided while offering to pay Miskell to hide him (633). At trial, Miskell was unable to identify the appellant (639). In fact, he indicated that he was not even able to identify the suspects at the time of the incident (640). When the call came out that the Equinox was recovered in Johnson Park, Officer Lee and his partner, Officer David Daniels, proceeded down Elmwood Avenue towards Johnson Park, passing Chippewa Street as they canvassed the area (650). Two males were observed jumping a fence, heading toward Chippewa Street and a third male was attempting to get into a building (652, 660-661). Lee and Daniels grabbed the man who was trying to enter a building, who was later identified as the co-defendant, Mychal Carr (652,656). Meanwhile, Officer Jose Colon and his partner, Officer John Poisson, were with the Mobile Response Unit in an unmarked patrol car when they heard the call dispatched indicating shots fired at a fellow officer (520). In response, Colon and Poisson traveled in their vehicle to a position approximately three blocks from the chase and exited the patrol car (521). At this point the Equinox was actually headed toward Colon and Poisson, who had their weapons drawn (521-522). Colon testified that he had his gun pointed at the Equinox to eliminate any danger, but ultimately he did not feel a need to discharge his gun because the vehicle posed no threat and the occupants of the vehicle had not attempted to fire shots at them even though Colon had his gun conspicuously drawn (524). As the Equinox drove past him with the other patrol cars in hot pursuit of the appellant and his co-defendant, Colon returned to his patrol car (524). Colon and his partner joined in pursuit but soon lost sight of the Equinox (525). However, it was not long before a radio transmission relayed information that the Equinox had been located near or on Johnson Park (525). Since they were already in the area, Colon and Poisson approached Chippewa Street from Elmwood and as they turned their unmarked patrol car onto Chippewa they observed the driver and the passenger of the Equinox running east on Chippewa (526). Colon and Poisson immediately exited their vehicle, pursuing on foot (526). Together, the officers apprehended appellant and co- defendant, Andre Goldsmith, taking them to the ground at gunpoint and placing them under arrest (526). At trial, Colon's identification of appellant was equivocal, at best (538-544). It was apparent that Colon had been advised (or had read in reports) that appellant was the driver of the vehicle. In fact, Colon admitted on cross-examination that he only scanned the vehicle as it sped by him (544). He conclusively stated, however, that he never saw a gun in appellant McGeeYs hand (542). Moreover, Colon testified unequivocally that as he stood on the street and the Equinox passed him, it posed no threat to him i.e., the vehicle made no attempt to hit him, nor were any guns drawn or shots fired at him or his partner (547). Initially, Officer Clark testified that it did not appear that the shots fired had hit his police vehicle nor had he noticed any marks resembling a bullet blemish (579, 61 8). However, with coaxing by the prosecutor, Clark concluded that the mark was from a bullet (595, 618). As a detective in the crime scene unit, Detective Maroney was called in from home to investigate the crime scene. His investigation included an examination of Officer Clark's patrol car. When shown the photograph of the vehicle depicting the damage, Detective Maroney opined that the damage "could have been caused by a lot of things" (789). While Maroney suggested that the damage seemed to represent "a classic ricochet wound to the skin of the vehicle" (789), on cross-examination he agreed that if a person is hanging out of a window extended above the top of a vehicle and shoots a gun as that vehicle travels in excess of 60 miles per hour it is unlikely that the bullet would hit another vehicle (828-829). Cathryn Barlow testified that she was at her home at 45 Cambridge on the evening of May 14, 2008 when she heard a lot of noise at about 7:00 pm (437). She went to her porch to look outside to see what was going on (438). She testified that she observed "a little truck, and the dude was sitting like on the window sill like hanging out" (440). As the truck turned onto Cambridge, the passenger pulled out a gun and started shooting (442). Barlow claimed that her house was the first to get hit (442). In response she grabbed her son and ran into the house. After Barlow put her son in the house and checked on her daughter she went back outside (442). According to Barlow, she saw a third person come out from the back passenger side with a gun and start shooting at her (442). Barlow confirmed that the driver was not shooting a gun (501). Barlow was unable to identify the driver of the vehicle (501-502). ARGUMENT POINT I BECAUSE THE PROOF WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN HIS CONVICTIONS OF ATTEMPTED MURDER IN THE FIRST DEGREE AND RECKLESS ENDANGERMENT IN THE FIRST DEGREE APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS UNDER THE LAW (US CONST., AMENDS. 5, 14; NY CONST., ART. I, SECTION 6). Erie County Indictment No. 2008-01258 charged appellant, Demetrius McGee, with one count of attempted murder in the first degree alleging that appellant, in concert with his co-defendant, Mychal A. Carr, engaged in conduct intended to cause the death of Buffalo Police Officer Ronald Clark, Jr. [Penal Law $ 5 110.00/125.259(1) (a) (i)), 20.001. Appellant was also charged under count two of the indictment with reckless endangerment in the first degree [Penal Law $5 120.25, 20.001. Similar to the allegations under count one, appellant was accused of having acted intentionally in concert with co- defendant, Mychal A. Carr, under circumstances evincing a depraved indifference to human life in recklessly creating a grave risk of death to Catherine Barlow and other persons by shooting a firearm. At the close of the People's case, defense counsel moved for a trial order of dismissal on the basis that the People had failed to establish a prima facie case against appellant, asserting that the evidence was insufficient as a matter of law (988-989). Counsel argued that the proof was insufficient because the only proof against appellant was appellant's own statement that he was the driver of the car, which statement had not been corroborated and was thus insufficient to establish the specific intent required to establish an attempt to commit murder. Counsel argued further that appellant's statement failed to establish that he acted in concert with the shooter, Mychal Carr, to prove accessorial liability. In counsel's own words, "it's clear from the charges themselves that [the appellant], even under the most liberal construents (sic) of accessorial liability.. .shares none as to the first count and the second (989). The jury returned its verdict, convicting appellant under both count one and count two of the indictment. Appellant maintains that, reviewing the evidence in the light most favorable to the People, his conviction for aiding and abetting in the attempted intentional murder of a police officer is not supported by legally sufficient evidence since there is no proof that appellant had formed the specific intent to commit murder, nor was there sufficient proof to establish that that the appellant had acted as an accessory to his co- defendant, Mychal Carr. Because there was insufficient proof to establish accessorial liability, the People failed to meet their burden under both counts one and two. Equally deficient was the sufficiency of the evidence to establish, beyond a reasonable doubt, the essential statutory element of "attempt" to commit a murder. Thus, since no conviction may be sustained "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged" appellant asks this Court to uphold his state and federal constitutional rights to a fair trial and due process by reversing the order of the Appellate Division and reversing his convictions and dismissing the indictment as it pertains to him. Jackson v Virginia et al, 443 US 307; In re Winship, 397 US 358. The proof was legally insufficient. Appellant was charged as an accessory in the attempt to kill Buffalo Police Officer Roland Clark. Pursuant to Penal Law 5 125.27 (1) (a)(i) the offense of first-degree murder is committed when, with the intent to kill a police officer engaged in the performance of official duties, the defendant causes the death of that police officer or a third person and the defendant knew or reasonably should have known that the intended victim was a police officer (emphasis supplied). Attempted murder in the first degree of a police officer is a crime which requires proof, among other things, that the defendant had formed the specific intent to kill and that he acted in a manner tending to effect the commission of the crime (United States v Stroman, 420 Fed. Appz. 100, citing Braxton v US, 500 US 344). Because the offense, here, was charged as an attempt, the prosecutor bore the additional burden, under New York law, of establishing the element of attempt by proving that the defendant "carried the project forward within dangerous proximity to the criminal end to be attained" (United States v Fernandez-Antonia, 278 F.3d 150, citing People v Acosta, 80 NY2d 665). Further, in the case at bar, since appellant was charged as an accessory, the People were required to establish, that the appellant not only shared the intent of h s co- defendant but that he acted andlor aided in the furtherance of the attempt to murder Officer Clark. Appellant asserts on appeal that the evidence presented at trial failed to establish: (1) accessorial liability, or (2) that the appellant's individual and specific acts constituted an attempt to commit a murder under New York law, or (3) that appellant had formed the specific intent to commit the murder of a police officer. The charges under count two of the indictment also charged the appellant with accessorial liability. On appeal, appellant argues, similarly, that the People's failure to establish evidence of a common scheme or plan between appellant and his co-defendant rendered the proof insufficient to support his conviction of reckless endangerment in the first degree. Accordingly the People failed to meet their burden of proof and appellant's convictions under both counts one and two must be reversed. The evidence was insufficient to establish the element of attempt. New York Penal Law 5 110.00, the attempt statute, states that "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime". This Court has recognized that in order to distinguish a punishable attempt from mere preparation to commit a crime, a line must be drawn between those acts which are remote and those acts which are proximate and near to the consummation of the crime. (People v Acosta, 80 NY2d 665, citing People v Rizzo, 246 NY 334). Furthermore, to be punishable as an attempt to commit a crime, the defendant's acts must be "very near" or "dangerously near" the commission of the crime. People v Kassebaum, 95 NY2d 61 1. The United States Court of Appeals for that Second Circuit has analyzed the New York court decisions defining "attempt" to commit a crime under New York Law, concluding that a New York "defendant must perform conduct quite severe in order to be convicted of the crime of attempt". Fernandez-Antonia, supra at 162. Whether a particular defendant has engaged in conduct constituting an attempt requires a fact specific analysis. As noted in People v Mahboubian, 74 NY2d 174, "the boundary where preparation ripens into punishable conduct depends greatly on the facts of the particular case" (supra at 190). "To be sure, the strictest possible approach to defining an attempt would be to require that the defendants have engaged in the last proximate act necessary to accomplish the intended crime" (id.). It is settled, however, that the defendant's act "need not be 'the final one towards the completion of the offense"' (People v Bracey, 4 1 NY2d 296,3 00, citing People v Sullivan, 173 NY 122, 133 .) Under that rubric, appellant McGee cannot be said to have "attempted" to commit the crime of murder in the first degree. In performing the required fact specific analysis, the Appellate Division, in the instant matter, was duty bound to determine whether the evidence supported the conclusion, beyond a reasonable doubt, that the acts of the appellant were such that he was "very near" or "dangerously near" the commission of the crime (People v Acosta, supra at 670, citing People v Rizzo, 246 NY 334). Neither the trial court nor the Appellate Division fulfilled its responsibility to engage in the necessary fact specific analysis and the evidence, here, simply failed to establish that appellant engaged in acts that were very dangerously near the alleged intention to murder the police officer. In fact, the evidence at trial established that neither appellant nor his co- defendant took any serious steps to commit the murder of Officer Clark. Officer Clark testified that he was initially uncertain whether the shots fired had hit the patrol car at all (579). According to the trial testimony, appellant had turned his vehicle around into oncoming traffic when Mychal Carr leaned out the window and fired his weapon two times at the police vehicle (579). That maneuver did not provide a clear field of fire at the police vehicle (581). Moreover, when appellant realized that his co-defendant was firing at the police car, he immediately returned to the proper lane of traffic, purposely preventing any further attempts to shoot at the police vehicle. It is settled that dangerous proximity to the criminal end exists when the defendant's acts have set in motion a chain of events that are likely to lead to the completion of the crime unless some external force intervenes. In that vein, the court stated in Rizzo, supra, that "[the] law . .. considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference. In People v Werblow, 241 NY 55, 65 the court indicated that an attempt could not be found where "[the] force set in motion is neither continuous nor mechanical and its operation may be broken before the stage of attempt has been attained by the withdrawal or repentance of the guilty intermediary". Applying the settled case law, to the instant matter, it cannot be said that appellant had engaged in acts constituting an attempt. And even if it could be found that the facts support the element of specific intent to commit the crime (which appellant vehemently disputes), appellant's act of moving the vehicle back into the proper lane of traffic supports a conclusion that appellant had withdrawn from the criminal enterprise. Even the People's witnesses failed to establish the element of attempt. Officer Clark testified that it initially appeared that the shots fired had not hit his police vehicle and he had not even noticed any marks resembling a bullet blemish on the vehicle (579, 61 8). Detective Maroney, an investigator at the crime scene who examined the patrol car, testified that the damage to the rear driver's side door depicted in the photograph of the vehicle "could have been caused by a lot of things" (879). Thus, there was no clear proof that the damage to the vehicle was caused by the shots fired and even if it was, the damage was so minimal it clearly did not establish a serious attempt to kill the officer. Moreover, the damage was to the rear of the vehicle -- the chances that the officer would have been murdered or even seriously injured by shots fired at the rear portion of the vehicle were very remote. The facts, here, are far removed from those articulated in People v Steele, 93 AD3d 492, at 493 where the court found the evidence sufficient to support the charge of attempted murder reasoning that "the element of homicidal intent could be inferred from defendant's act of firing two shots at the victim at close range, striking him in the shoulder". Similarly in People v Stoby, 4 AD3d 766, the proof was sufficient to sustain the charges of attempted assault in the first where the evidence established that the defendant swung a knife and stabbed the victim in the back causing serious physical injury. In each of these cases the court found sufficient evidence of attempt to commit the crime charged but the clear distinguishing factor from the case under review is that here, the so-called victim, sustained no injuries and, in fact, the danger of injury to Officer Clark from appellant's acts was remote, if not nearly impossible. Clearly it cannot be said that appellant's acts came dangerously close to the completed act of murder in the first degree. Appellant's act of turning the vehicle around simply was not an act "such as would naturally effect [the intended] result unless prevented by some extraneous cause" (People v Mills, 178 NY 274 at 285). Because the proof did not support a finding that appellant's actions came dangerously close to committing the offense of attempted murder in the first degree, the proof was insufficient as a matter of law. The proof at trial failed to establish a shared plan or community of purpose. While appellant does not contest the prosecution's evidence that appellant's co-defendant fired shots from a weapon during the course of a high speed chase, appellant contends on appeal that, as the driver of the vehicle, he had no knowledge of his co- defendant's intentions to fire the weapon and furthermore, that the proof failed to establish that appellant was an accessory in an attempt to commit murder as charged in the indictment. Moreover, the proof failed to establish that there was a community of purpose between the appellant and his co-defendant Mychal Carr's act of firing the weapon. The lack of proof to establish that appellant and his co-defendant had formed a common scheme or plan renders the charges against appellant under both counts one and two unsustainable. In People v LaBelle, 18 NY2d 405, this Court succinctly articulated the necessary legal proof required to establish that an aider and abettor shared in his co- defendant's purpose, stating: Section 2 of the Penal Law makes a principal in the crime charged any person who "aids and abets in its commission". It does not, however, make one a principal merely on the basis that, in retrospect, we may say that in an objective sense this person was helpful or of use to the actual perpetrator of the crime. There is a subjective element as well. As one legal scholar has pointed out, "An aider and abettor must share the intent or purpose of the principal actor, and there can be no partnership in an act where there is no community of purpose." (1 Burdick, The Law of Crimes, 5 221, p. 297.) That intent is required for one to be held liable as a principal on the basis of his having aided and abetted the perpetrator of the crime of murder was pointed out in People v. Monaco (14 NY 2d 43) where this court said: "In the absence of some statutory synthesis of intention which makes out any homicide to be murder, intended or not (such as Penal Law, 5 1044, subd. 2, in respect of a person engaged in felony), whether a homicide is committed 'with a design to effect' death depends on adequate proof of such a design by each person charged." (14 NY2d 43, 46; emphasis supplied.) (Id. at 412). In the instant case there was absolutely no proof to establish that each person in the vehicle had, by design, made a conscious decision to murder a police officer. Equally significant is the lack of proof that appellant and his co-defendant had even attempted to commit a murder. In fact, the proof at trial would suggest just the opposite. Officer Clark testified emphatically that the shots were fired at the vehicle, and not at him The prosecutor unsuccessfully attempted to establish that the driver of the vehicle, in an effort to carry out a shared plan between the appellant and his co-defendant, made a calculated maneuver with the vehicle to afford the shooter a clearer "field of fire" (581) at the police vehicle. Clearly the prosecutor's line of questioning was intended to demonstrate that the appellant positioned the vehicle he was driving in a manner to facilitate a clear line of fire so that his co-defendant could fire a fatal shot at the officer. However, Officer Clark's first unbiased and candid response to the prosecutor's query as to whether appellant's maneuver provided the front passenger a clear field of fire on his vehicle was in the negative. Officer Clark stated that the field of fire was "[nlot as much as if the vehicle was parallel, traveling parallel to me" (581). In other words, the driver of the vehicle had not intentionally positioned his vehicle to accomplish the intended specific act of murdering a police officer. Clark's answer suggested that had the defendants' specific intent been to murder him, appellant could have facilitated his co-defendant in carrying out the plan to murder the officer by driving the vehicle parallel to the officer's vehicle to gain a clear field to shoot directly at the officer. Instead, Clark testified that the shooter only aimed at the vehicle, not at him personally. Upon this proof, it is reasonable to conclude that the driver positioned the vehicle so as to avert capture by the police. That the shooter did not fire directly at the police officer and, instead, only aimed at the vehicle suggests the lack of intent to injure or kill the officer. It was only after repeated leading questions and prompting that Officer Clark realized that the prosecutor was seeking a different answer than the one he had originally provided. Obliging the prosecutor, Officer Clark changed his response, finally agreeing that the maneuver made by the driver provided a clear field of fire at the vehicle (581). This response was in stark contrast to Clark's initial response that the driver had made an evasive move (574), in other words, the driver was attempting to avoid capture. Clearly, this equivocal testimony, standing alone, failed to establish beyond a reasonable doubt that the appellant and his co-defendant were acting in concert with one another with the specific design to commit a murder. Since this was the only evidence, if believed, that could possibly establish that there was a specific intent to murder Officer Clark, the People simply failed to meet their burden of proof beyond a reasonable doubt. The instant case is similar to, but distinguishable from, this court's ruling in People v Cabassa, 79 NY2d 722, where the court found that the proof was sufficient to establish the driver's shared intent with his passenger to kill four police officers (reversed on other grounds). In Cabassa there was direct evidence that the driver and the passengerlshooter exchanged words just before the driver accelerated through a red light. The Cabassa Court concluded that this evidence tended to support the prosecution's theory that the two were acting in concert. In Cabassa this court further reasoned that the driver, knowing that the passenger had been shooting at the pursuing police, had nonetheless proceeded to drive the vehicle directly toward a police roadblock, permitting the passenger to aim and fire his weapon at a second police officer, thereby establishing that the pair had shared the plan to shoot the officer. In contrast, here, there was absolutely no direct evidence to support the contention that the appellant and his co-defendant had established a common scheme or plan or had shared a specific intent to commit murder. In fact, appellant's own statement that he was "only the driver" while at first blush appearing to be inculpatory, actually supports his assertion that he had not formed the intent to act in concert with his co- defendant to commit a murder. Moreover, the prosecution's attempt through the testimony of Officer Clark to establish the appellant's intent to commit murder was purely circumstantial and as such insufficient to meet the People's burden beyond a reasonable doubt. The evidence adduced at trial was insufficient to prove the requisite specific intent. The facts of the case, read as a whole, clearly establish that the appellant and his co-defendant had not formed the specific intent to murder a police officer or, for that matter, seriously injure anybody. For example, when Officers Colon and Poisson stood in the street unprotected, with their guns drawn, while the Equinox passed by them, there were no shots made from the vehicle (521-522). In fact, Officer Colon testified he did not feel a need to discharge his firearm because the passing vehicle posed no threat (524). And, Officer Clark testified that later in the chase as he sped to catch up with the appellant, the passenger again leaned out the window briefly, holding his weapon but made no attempt to shoot at the officer (583). During the course of the chase, the passenger had many, many opportunities to fire his weapon at the officers and the driver of the vehicle had several opportunities to cause a collision with any one of the police vehicles. Indeed, appellant and his co-defendant had the ideal opportunity to injure or even kill the two officers standing vulnerable in the street as they sped by. All of the foregoing facts point to the inescapable conclusion that the appellant's main objective was to avoid a confrontation with the police and that he clearly had not formed the specific intent to murder or, even injure a police officer on the evening of May 14,2008. The circumstantial evidence was insufficient, as a matter of law, to establish the requisite intent to commit a murder. Appellant contends that the People failed to establish by circumstantial evidence that appellant acted with the requisite specific intent to be guilty of an attempted first degree murder as an accessory. It is well settled that an accessory's shared intent with the principal actor may be proved by circumstantial evidence (People v Ozarowski, 38 NY2d 481). However, where evidence is circumstantial, the jury must find that it leads to a conclusion of guilt beyond a reasonable doubt, and in addition, that the facts proved exclude to a moral certainty every reasonable hypothesis of innocence (People v Borrero, 26 NY2d 430). An attempt to commit the offense of first-degree murder only occurs if a defendant, possessing the requisite murderous intent, acts in a manner that tends to effect the commission of the crime (People v. Wells, 7 NY3d 51). It is instructive to again examine the facts in People v Cabassa, 79 NY2d 722, a case factually similar to the case at bar, where the court ruled that the lower court erred in failing to charge the jury with the lesser included offense of attempted assault. The reasoning with respect to the issue of murderous intent applied in Cabassa is the same reasoning that must be adopted here. The Cabassa court found that: In the prosecution of defendants for attempted murder in the first and second degrees, arising from their conduct during a high-speed automobile chase when one defendant, a passenger in the vehicle driven by the other defendant, fired several gunshots at the pursuing police vehicle and also fired at a police officer manning a roadblock, the trial court erred by failing to charge the jury with respect to the lesser included offense of attempted assault in the second degree, since the jury could reasonably have found that defendants' purpose in having the passenger shoot at the police was to injure the police officers and cause them to terminate the chase. The passenger was shooting at a moving target ... while traveling at high speeds and while both vehicles were frequently changing lanes. The jury could believe that under those circumstances defendants intended to injure rather than to kill. It could have reasonably concluded that the passenger was aiming and shooting at the officers and their vehicle in order to distract the driver of the police vehicle so that he would lose control of the car, in order to hit some portion of the car, such as a windshield or tire, or to cause a serious accident, or to hit the officers, but only to seriously injure and incapacitate them so that they would abort the pursuit. Moreover, with respect to the defendant driver, a reasonable juror could find on this evidence that even if the passenger intended to kill, the driver did not share that intent. (supra at 730-73 1). Here, the proof that appellant and his co-defendant intended to commit a murder was equivocal, at best. That appellant may have maneuvered the car to provide a more direct line of fire was merely speculative; that proof clearly did not establish intent beyond a reasonable doubt because the proof was circumstantial. As was reasoned by the Cabassa Court in the above quoted passage, the defendants may have intended to only assault the officer: to injure rather than kill. Their intent could have been to avert the officer so that the chase would be aborted. As Officer Clark so succinctly testified, the defendants would have had a much clearer field of fire if they had positioned their vehicle parallel to his police vehicle. Had that been the actual case, the conclusion that appellant's co-defendant intended to kill the officer would have been more plausible. Moreover, since there was no proof suggesting that the appellant and his co-defendant had planned to assail a police officer, it is perfectly conceivable that the co-defendant's act in shooting the gun was the co-defendant's spontaneous, independent decision (see, People v Sommerset, 100 AD2d 947; People v Comfort, supra). Appellant's identity as the driver of the equinox was not established beyond a reasonable doubt. The only proof definitively connecting the appellant to the charges was his spontaneous statement to Officer Clark at the stationhouse, following his apprehension, that he was only the driver. CPL 60.50 provides that a person may not be convicted of an offense "solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed." The section does not require corroboration of confessions or admissions in every detail, but only "some proof, of whatever weight", that the offense charged has in fact been committed by someone (People v Daniels, 37 NY2d 624, 629; see also, People v Cuozzo, 292 NY 85; People v White, 176 NY 331). Its purpose is to avoid the possibility that a crime may be confessed when, in fact, no crime has been committed (People v Lipsky, 57 NY2d 560, 570, quoting People v Reade, 13 NY2d 42; and People v Lytton, 257 NY 3 10). The requirements of the corroboration rule are not rigorous and sufficient corroboration exists when the confession is "supported" by independent evidence of the corpus delicti (see, People v Sajian, 46 NY2d 18 1, 187, cert denied sub nom. Miner v New York, 443 US 912; cf. People v Brasch, 193 NY 46, 60-65; People v Jaehne, 103 NY 182, 199-200). The necessary additional evidence may be found in the presence of defendant at the scene of the crime, his guilty appearance afterward, or other circumstances supporting an inference of guilt (see, People v Cuozzo, supra, p 92; People v Reade, supra, p 46; and see, 7 Wigmore, Evidence 5 207 1, at 5 1 1 [Chadbourn rev]). Corroboration existing, the evidence as a whole must, of course, establish guilt beyond a reasonable doubt (People v Booden, 69 NY2d 1 85, 1 87 (N.Y. 1987). In the instant matter, where the corroboration was equivocal, at best, the necessary element of appellant's identity was clearly not established beyond a reasonable doubt. Accordingly, for all the foregoing reasons, the inference of guilt was not the only one that could fairly and reasonably be drawn from the record because the evidence did not negate, beyond a reasonable doubt every reasonable hypothesis of innocence (People v Comfort, 113 AD2d 420). Since the actual proof fell far short of meeting the People's burden of proving beyond a reasonable doubt that appellant and his co-defendant had entered into a scheme or plan to specifically commit the murder of a police officer and that they jointly attempted to carry out such a plan, appellant's conviction for murder in the first degree must be reversed and the indictment dismissed. Accordingly, appellant asks this Court to reverse the Appellate Division's order and to reverse his conviction and dismiss the indictment based upon the legal insufficiency of the evidence. POINT I1 APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (US CONST., AMENDS. 6, 14; NY CONST., ART. I, SECTION 6), REQUIRING THE REVERSAL OF HIS CONVICTION. Both the state and federal constitutions guarantee the right to effective assistance of counsel. In People v. Baldi, 54 NY2d 137, this Court of Appeals established a flexible standard which must be applied in considering claims of ineffectiveness. Stressing the need to distinguish losing tactics from true ineffectiveness, the Court arrived at a standard of "meaningful representation" based on the evidence, the law and the circumstances of a particular case viewed in their totality at the time of the representation (Id, at 147). In People v Benevento, 91 NY2d 708, the Court, while again noting that effective assistance is not amenable to "precise demarcation," observed that the standard encompasses the pursuit of a reasonable and clear trial strategy, the filing of appropriate pre-trial motions, cross-examination of witnesses, making a motion for a trial order of dismissal and persuading the court to consider appropriate defenses. The standard is a flexible one, which views in totality and at the time of the representation, the evidence, the law and the circumstances of the particular case in determining whether counsel provided meaningful representation (People v Hobot, 84 NY2d 1021). While a defendant is required to demonstrate that trial counsel failed to provide meaningful representation (see e.g. People v Caban, 5 NY3d 143), it is long been accepted that "[a] single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d at 152, People v Turner, 5 NY3d 476). In the instant case, although defense counsel's representation may have been facially adequate, upon closer examination, it becomes painfully apparent that counsel made several critical and substantial errors which were ultimately fatal to appellant's case. The Failure to Request a Jury Charge to the Lesser Included Offense Was Not Based Upon a Reasonable Trial Strategy. Counsel's failure to request a jury charge to the lesser included offense of attempted assault in the second degree [Penal Law § 110.00/120.05 (I)], standing alone, was so egregious an error, given the circumstances of the case and the consequences to appellant, as to constitute ineffective assistance of counsel. The appropriateness of a charge to the lesser included offense is validated by the decision in People v Cabassa, 79 NY2d 722, a case factually analogous to the instant matter, where this Court reversed the appellant's conviction, finding that the trial court erred in denying counsel's request to charge the lesser included offense of attempted assault in the second degree under Penal Law 5 120.05 (1). This Court has often warned that "when reviewing claimed ineffective assistance of counsel, care should be taken to 'avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis" (see, People v Lane, 60 NY2d 748, quoting People v Baldi, 54 NY 137 at 147). In the instant matter it is clear that trial counsel committed an egregious error in failing to request a charge to the lesser included offense. There is nothing in the record to suggest that counsel and the appellant had made a joint decision to "go for broke" by allowing the jury to consider the sole charge of attempted murder in the first degree rather requesting a charge to the lesser included offense of attempted assault in the second degree. In fact, from the record it is apparent that trial counsel was well aware of the serious consequences of a conviction and the People's proof. That assessment is apparent in trial counsel's, on the record, recitation of the plea he had negotiated with the prosecution. Rather than striving to protect appellant's rights, it appears that counsel's paramount concern was to insulate himself from scrutiny when he explains appellant's rejection of the negotiated plea in the following colloquy: . . ..But since I accepted assignment of this case, my client has authorized me, and I did seek a plea essentially to Count two of the Indictment, Reckless Endangerment in the First Degree (a "D " felony) (emphasis supplied). The District Attorney authorized that plea under certain conditions, those being that if my client entered the plea, he'd waive his right to appeal; and secondly, that he cooperate in any future prosecution in this case against his co-defendants. I have urged that strenuously on my client for a number of reasons. First of all, I believe that that plea encompasses my client's culpable conduct in this Indictment, and pretty much says everything there is to say about his conduct. Secondly, my client faces, in my opinion, a huge risk in going to trial on this Indictment because he may end up being convicted of the primary charge in the Indictment, Count One, which is Attempted Murder in the Second Degree, which carries a mandatory minimum sentence of 20 years to life. I think that that's an inordinate risk. The condition of the plea that my client is unwilling to cooperate with is cooperation against his co-defendants; and for that reason, he has refused the plea. Now, I have reviewed with him, and I'd like the record to reflect that I have shared the scientific evidence that will go in this case. It implicates others and not my client in terms of who may have handled the firearm that was allegedly discharged in terms of corroborating who the shooter may have been through personal property that was lost at a particular crime scene, and there are a number of factors, which viewed on an objective basis, may implicate others in the actual discharge of firearms. But my client has chosen not to testifl against that person, whom I believe the District Attorney believes is the shooter in this case, and for that reason my client has chosen to go to trial. But I wish to place that on the record because the implications of this -- of a potential conviction are so large as to potentially call into question whether or not he was properly advised in this case, and that's why I placed it on the record. (9-1 1) Counsel's explanation reveals his failure to seek a jury charge to the lesser- included offense was based upon his inadequate preparation for the serious charges his client faced. It appears that counsel had not even considered that the proof could suggest an attempt to cause serious physical injury, rather than murder. Moreover, it is not plausible that appellant rejected counsel's advice to request a jury charge including the lesser-included offense as part of the trial strategy. If counsel had explored this with appellant, it seems most certain that counsel would have placed that discussion on the record, just as appellant's rejection of the plea had been. Moreover, the negotiated plea strongly reveals that counsel placed little faith in the possibility of acquittal on the basis of the lack of intent defense. For that reason, it was not a reasonable strategy to "go for broke" under the circumstances. The proof was clearly insufficient as a matter of law to establish beyond a reasonable doubt that appellant had formed the specific intent to act in concert with his co- defendant in the attempt to murder Officer Clark (see, Point I, supra). Counsel's failure to seek a charge to the lesser-included offense of attempted assault in the second degree was a grave oversight amounting to ineffective assistance of counsel. This is especially true because counsel claimed to have carefully examined appellant's culpable conduct. If indeed counsel had examined the proof and researched the law, he would have concluded that a reasonable view of the evidence supported a charge of attempted assault in the second degree which would have exponentially reduced appellant's exposure. Counsel's actions do not support a reasonable trial strategy under the circumstances. In addition, counsel's on-the-record explanation regarding appellant's decision to go to trial rather than accept a guilty plea was a blatant example of counsel taking a position adverse to his client (see, People v Hunter, 35 AD3d 1228, citing People v Chrysler, 233 AD2d 928). In his colloquy, counsel not only criticizes the appellant's decision to go to trial, he reveals confidential communications between himself and his client i.e., that appellant will not testify against his co-defendants. This statement alone unnecessarily implicates the appellant in the incidents of May 14, 2008. Indeed, counsel's statement that the proposed plea offer "encompasses my client's culpable conduct in this Indictment, and pretty much says everything there is to say about his conduct" is in effect an unauthorized admission by appellant. The law is settled that a defendant has been denied effective assistance of counsel when his attorney, "either voluntarily or at the court's urging, became a witness against him" (People v Chrysler, supra; citing, People v Santana, 156 AD2dd 736, 737; People v Welsh, 207 AD2d 1025). Based on the foregoing, appellant was clearly and unequivocally denied the effective assistance of counsel. One of counsel's most serious deficiencies, the failure to object and preserve the errors for appeal, was both general and specific. Generally, throughout the trial, counsel failed to make adequate objections and thereby failed to preserve the record. Assuming arguendo, (but not conceding) that counsel's motion to dismiss for legal insufficiency is deemed unpreserved, appellant contends that this deficiency be considered another example of ineffectiveness of counsel. Counsel's dismissal motion at the close of the People's case was not specifically directed at the alleged legal insufficiency of the evidence. In his motion to dismiss, counsel never challenged the People's failure to establish that the appellant had formed the specific intent to commit the murder of a police officer. Nor did counsel attempt to marshal the obvious facts established at trial supporting appellant's contention that the defendants had not jointly formed a plan or scheme to murder a police office. Moreover, counsel made no effort to enhance the arguments upon renewal of his motion to dismiss for legal insufficiency at the close of the trial. This omission, standing alone, is sufficient to support a finding of ineffective assistance of counsel for under People v Hines, 97 NY2d 56, this Court has ruled that dismissal of an indictment may be precluded on appeal due to counsel's failure to adequately preserve by a motion to dismiss for legal insufficiency at trial. In addition, defense counsel failed to seek severance of appellant's trial from his co-defendant's trial. Since the proof firmly established that the co-defendant was the shooter, the joint trial was highly prejudicial to the appellant. Because appellant's statement at the stationhouse that he was "only the driver" required corroboration for conviction, it became critical to sever the proof against the co-defendant from evidence against the appellant. Counsel failed to challenge the probable cause for appellant's arrest. Compounding counsel's shortcomings was his failure to challenge the probable cause for appellant's arrest. Indeed, on October 21, 2008 at the time of the joint HuntleylProbable cause hearing, appellant's attorney absented himself from the portion of the hearing that addressed the probable cause for arrest (H-16) (Numbers in parentheses preceded by the letter "H" refer to the hearing held on October 21,2008). Because appellant's identification as a participant in the incident was so tenuous, challenging the probable cause for appellant's arrest was a critical piece to his defense. Officer Clark was unable to identify either of the defendants at trial (620-621), and the radioed descriptions of the perpetrators of the chase were contradictory and inconclusive. Of the twenty-four witnesses testifying on behalf of the People, not one witness was able to unequivocally identify the appellant as a participant in the incident. Since appellant's apprehension occurred some several blocks away from the abandoned Equinox, counsel was required to challenge the appropriateness of appellant's arrest and the failure to do so was a critical error. Had counsel been successful in challenging the arrest, the only evidence against appellant, his inculpatory statement, would have been subject to suppression as fmit of the poisonous tree. Based on the foregoing, there can be no tactical nor strategic excuse for counsel's failure to challenge the propriety of appellant's arrest. There is no precise definition of what constitutes ineffective legal representation, nor is there a particular standard applicable to every case. See People v Bennett, 29 NY2d 462,466. Rather, all of the evidence must be weighed in context and as of the time of representation to assess the alleged deficient representation. Where a single, substantial error by counsel so seriously compromises a defendant's right to a fair trial, it will qualify as ineffective representation. See People v Hobot, 84 NY2d 1021; People v Baldi, supra at 137, 146-147. The magnitude of defense counsel's errors, taken together, constitute ineffective assistance of counsel. Under the totality of the circumstances, had counsel utilized both the expected knowledge of the law and the facts available, appellant would have been better equipped to challenge the charges against him. His ability to do so was hampered by the fundamental and critical omissions of his attorney whose failings deprived appellant of his state and federal constitutional right to effective assistance of counsel, necessitating reversal of his conviction. CONCLUSION WHEREFORE, it is respectfully requested that this Court reverse the Appellate Division order of conviction and dismiss the indictment, or, alternatively, order a new trial, and grant such other and further relief as to this Court seems just and proper. Respectfully submitted, DEMETRIUS McGee, APPELLANT By his Attorney DAVID C. SCHOPP Dated: Buffalo, New York July 11,2012 of Counsel