(dissenting). I respectfully dissent. Defendant’s conviction should be reversed and a new trial granted because of the failure of defense counsel to afford defendant competent and effective legal assistance.
The Court of Appeals in People v Droz (39 NY2d 457, 462) commented on what constitutes inadequate or ineffective legal representation: “it is elementary that the right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense (People v Bennett [29 NY2d 462]) and who is familiar with, and able to employ at trial basic principles of criminal law and procedure (People v LaBree, 34 NY2d 257; cf. People v Jones, 25 NY2d 637). Whether counsel has adequately performed these functions is necessarily a question of degree, in which cumulative errors particularly on basic points essential to the defense, are often found to be determinative (see, e.g., People v Bennett, supra; People v LaBree, supra).”
I cannot agree with the majority’s conclusion that defense counsel’s advice to defendant to participate in the March 5 conference with the District Attorney and police officials, which resulted in his indictment for murders in Albany County, was part of any reasonably intelligent stratagem to effect a plea bargain for defendant. I also do not agree with the conclusion that the error here was somehow made harmless because the information secured at the March 5 meeting might have surfaced in any event in his murder trial in Schenectady, thus exposing defendant to possible further prosecution.
Defense counsel’s advice to defendant that anything he said at the March 5 meeting could never be used against him and that he was in no jeopardy in making the statements was patently wrong. No attorney of competence would have come to such a conclusion or ventured such advice. Further, defense counsel’s belief that the two New York State Police present at the interrogation were authorized by the Albany District Attorney’s office to grant immunity to defendant had no basis in fact and reveals defense counsel’s total inability to comprehend the dire consequences to defendant of his actions. Adding to the *178magnitude of his legal error was counsel’s failure to hold the District Attorney to the agreement both had made that in no event was defendant to be questioned by the District Attorney about cases in various counties where no indictments had yet been returned against defendant. Not only was defendant questioned about events in Albany County but defense counsel remained mute and permitted the questioning to continue.
The inculpatory statements made on March 5 regarding events occurring in Albany resulted in defendant’s indictment and subsequent conviction of the crimes appealed here. Based on the failure to afford defendant effective counsel, the judgment should be reversed and a new trial ordered.
Kane, J. P., Main and Casey, JJ., concur with Yesawich, Jr., J.; Mikoll, J., dissents and votes to reverse in a separate opinion.
Judgment affirmed.