Kassal, J. (dissenting).
I join in the dissent, and would add that the record supports defendant’s claim that he was denied effective assistance of counsel. That counsel failed to provide the constitutionally mandated level of "meaningful representation” (People v Baldi, 54 NY2d 137, 147) is evident at virtually every stage of this trial.
For example, counsel made an opening statement in which he raised the defense of justification for defendant’s use of force and, in so doing, created an expectation that defendant would testify, by assuring the jury that the prosecutor "knows less than I know because I have heard from the defendant”. In fact, counsel did not call the defendant or any other witness to support the contention that defendant shoplifted the washcloths, but only used force to avoid being beaten when he was apprehended. Also in his opening statement, counsel assumed a burden of proof with respect to testimony a prosecution witness would give:
"[Y]ou are going to hear testimony that when the security guard was asked this: 'Did he cut you with the knife?’ You will find that the answer was T don’t — ' *546"[prosecutor]: Objection. "the court: If he is going to prove it. Tell us what you are going to prove. "[counsel]: That is exactly what I am doing, your Honor. "the court: All right, he is going to prove it. "[counsel]: He is going to say he doesn’t know.” In another attempted defense to the robbery counts, defense counsel pursued the claim that force had to be used virtually instantaneously with the theft of the washcloths in order to sustain a conviction. This was clearly a misapprehension of the law on a critical legal issue (see, People v Washington, 148 AD2d 559, lv denied 74 NY2d 670; People v Johnstone, 131 AD2d 782, lv denied 70 NY2d 800; People v Dekle, 83 AD2d 522, affd 56 NY2d 835). By failing to familiarize himself with the applicable law, counsel was foreclosed from considering appropriate claims, such as whether defendant’s use of force occurred "immediately after the taking” (Penal Law § 160.00 [1]), and whether the force was a spontaneous and independent response to having been grabbed by the security guard, rather than an attempt to overcome resistance to the theft (see, e.g., People v Nixon, 156 AD2d 144, appeal dismissed 76 NY2d 870; People v Castro, 151 AD2d 690, lv denied 74 NY2d 846).
Counsel’s ineptitude is further evidenced by his having elicited, through cross-examination of a prosecution witness, previously undisclosed details concerning his injuries. On direct, store manager John O’Dair had testified only that defendant had pushed over a sunglasses rack which "hit [him] on the head”, and that his hand was "cut”. Defense counsel’s questioning brought out that O’Dair had sustained a visible and swollen bruise to the forehead, that the knife cut to his hand had caused soreness, swelling and bleeding, and that it had left a scar. In yet another egregious lapse, counsel failed to object, and thus preserve as a matter of law, claims related to the trial court’s supplemental charge to the jury, which, as the dissent of Justice Smith details, contained serious error.
The totality of these and other examples of errors and omissions raised on appeal "reveal that the representation defendant received was neither adequate nor meaningful.” (People v Echavarria, 167 AD2d 138, 141.) Rather, the record compels a conclusion that defense counsel’s performance was "so unreasonable, inconsistent, and devoid of any possibility of success that it did not even rise to the level of trial strategy.” (People v Lee, 129 AD2d 587, 588.)