Counsel Ineffective For Not Requesting Affirmative Defense
One of the elements of first-degree robbery is that the defendant displayed what appeared to be a gun. But, the defense may raise an affirmative defense that the defendant did not in fact have a loaded and operable gun.
At Mr. Collins's trial for first-degree robbery, the People introduced telephone calls in which Mr. Collins admitted he had committed a robbery, but stated that he had only pretended to have a gun. Despite this evidence, defense counsel did not ask the court to charge to the jury that if they believed that Mr. Collins did not have a loaded and operable gun, that he could not be convicted of first-degree robbery.
On appeal, Dina Zloczower of Appellate Advocates argued that Mr. Collins's trial attorney was ineffective for failing to raise this defense. The People conceded and today the Appellate Division reversed Mr. Collins's conviction, reducing it to second-degree robbery, and sending his case back to the trial court for resentencing.