I dissent and would affirm.
The defense was not inadequate within the standard set forth in People v La Bree (34 NY2d 257); In fact, it was innovative and dedicated.
The defendant was charged with a drug sale. He had a bad *34record, and the evidence was strong. His counsel determined to concede that he was involved in policy and gambling, among other things, but that he had not made the specific sale on January 25, 1974 with which he was charged, and the evidence, cross-examination and other counsel activities were directed toward this end, which might very well have been successful. To take out of context language in the summation which was clearly an effort to show sincerity and making a clean breast of the situation while still asking for the one chance of reasonable doubt, is to ignore the reality with which counsel was faced. Hindsight in this case has the effect of blinders rather than perception.
Birns, Evans, Capozzoli and Yesawich, JJ., concur in Per Curiam opinion; Kupferman, J. P., dissents in an opinion.
Judgment, Supreme Court, Bronx County, rendered on June 23, 1975, reversed, on the law, and a new trial directed.