dissents and votes to reverse the judgment appealed from, with the following memorandum: While acknowledging that defense counsel’s summation in this case "was decidedly lacking in clarity”, the majority would nevertheless affirm the conviction finding that the defendant received the effective assistance of counsel. I disagree.
A review of the case law has failed to reveal a decision which has held that defense counsel’s summation deficiency, standing alone, constituted ineffective assistance of counsel warranting reversal. On the other hand, there is nothing in the case law to preclude such a finding.
The right to counsel, as guaranteed by the Federal and State Constitutions, means the right to the effective assistance of counsel (US Const 6th Amend; NY Const, art I, § 6; People v Medina, 44 NY2d 199, 207). What constitutes effective assistance is determined on a case-by-case basis. An act or omission by counsel may constitute reversible error in one case, but not *284in another (People v Aiken, 45 NY2d 394, 399). The courts will look at the totality of the evidence, the law and the circumstances of a particular case in order to determine whether there has been meaningful representation (People v Satterfield, 66 NY2d 796). The "most critical concern in reviewing claims of ineffective counsel is to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis” (People v Baldi, 54 NY2d 137, 146).
In this case, which was tried before a Judge without a jury, the summation of counsel was unfocused, incoherent, and virtually impossible to understand. In my view, it amounted to no summation whatsoever, and should not be lightly brushed aside as a mere error in trial strategy but should be recognized for what it is, true ineffectiveness.
A defendant is entitled to the assistance of counsel at all critical stages of a criminal prosecution (People v Samuels, 49 NY2d 218, 221; People v Settles, 46 NY2d 154, 165), including summation at the close of a criminal trial (Herring v New York, 422 US 853). "There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial * * * [I]t has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge” (Herring v New York, supra, at 858).
In the Herring case, the United States Supreme Court, in striking down as unconstitutional a New York statute which allowed the trial court in nonjury cases to prohibit summation, stressed the importance to the defendant of an effective closing argument:
"It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt. See In re Winship, 397 U. S. 358.
"The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will *285best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important then the opportunity finally to marshal the evidence for each side before submission of the case to judgment. * * *
"But there can be no justification for a statute that empowers a trial judge to deny absolutely the opportunity for any closing summation at all. The only conceivable interest served by such a statute is expediency. Yet the difference in any case between total denial of final argument and a concise but persuasive summation could spell the difference, for the defendant, between liberty and unjust imprisonment.
"Some cases may appear to the trial judge to be simple— open and shut — at the close of the evidence. And surely in many such cases a closing argument will, in the words of Mr. Justice Jackson, be 'likely to leave [a] judge just where it found him.’ But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict” (Herring v New York, supra, at 862-863).
While it may be said that in a nonjury case the judge already knows the facts, the court in the Herring case observed that a closing argument may be even more important in a bench trial than in a jury trial: "the 'collective judgment’ of the jury 'tends to compensate for individual shortcomings and furnishes some assurance of a reliable decision.’ * * * In contrast, the judge who tries a case presumably will reach his verdict with deliberation and contemplation, but must reach it without the stimulation of opposing viewpoints inherent in the collegial decision-making process of a jury” (Herring v New York, supra, at 863-864, n 15).
The New York courts have also recognized that the right to an effective summation is inherent in the right to a fair trial (People v Ashwal, 39 NY2d 105; People v Bacalocostantis, 111 AD2d 991; People v Reina, 94 AD2d 727; People v Richards, 67 AD2d 893; People v Marcelin, 23 AD2d 368).
In this case, the defendant, through his attorney, did not waive his right to summation and therefore was entitled to anticipate the kind of summation which would clearly and concisely place before the court his major contentions. The rambling and incoherent gibberish which the defendant’s counsel sought to pass off as a summation did not serve that purpose. Defense counsel’s closing argument was in no way *286helpful to his client’s cause, and could be likened more to " 'an argument for the conviction of the defendant’ ” (People v Winston, 134 AD2d 546, 547; People v Duke, 58 AD2d 31).
Accordingly, I would reverse and order a new trial.