dissents and votes to reverse the order, to grant the motion to vacate the judgment of conviction, to order a new trial, and to dismiss as academic the appeal from the judgment on the ground that the judgment has been vacated, in the following memorandum, with which Rosenblatt, J., concurs. I agree with my colleagues in the majority, giving the jury’s verdict the "great deference” that we, upon appellate review, must, that the verdict in this case is not against the weight of the credible evidence (see, People v Bleakley, 69 NY2d 490, 495). However, in my view the defendant is entitled to vacatur of the judgment of conviction and a *598new trial because he was denied his constitutional right to effective assistance of counsel (see, US Const 6th Amend; NY Const, art I, § 6).
As is generally true with cases of this nature, the complainant was the only eyewitness to the alleged attacks upon her. Nine years old at the time that the incidents allegedly occurred, the complainant had apparently initially alleged that the defendant, her mother’s husband, had forcibly raped her on eight separate occasions during the year 1987, and the defendant was indicted for eight counts of rape in the first degree based upon use of force, eight counts of rape in the first degree based upon the complainant’s age, 50 counts of sexual abuse in the first degree, and endangering the welfare of a child. However, ultimately the defendant was prosecuted only for those counts which related to incidents which allegedly occurred on January 7, May 10 and December 11 (which did not involve allegations of rape), and, due to deficiencies in proof, the only counts which were submitted to the jury related to January 7 and May 10.
The complainant’s testimony has been accurately summarized in the majority decision, and will not be repeated here. In addition to that testimony, the People offered the testimony of Ardres Jean-Pierre, the gynecologist who examined the complainant in December of 1987. Referring to the hospital records, Dr. Jean-Pierre testified that there was a rash on the complainant’s vulva and tears of the hymen at 2 and 5 o’clock. He characterized the tears as "slight”, "probably one millimeter” and comparable in size to the tip of his pinkie fingernail, and he opined that they could have been caused by the insertion of any object into the vagina. Bleeding would have accompanied the tearing that Dr. Jean-Pierre believed to have been present on the complainant’s hymen. In contrast, the complainant had testified that she did not bleed after her encounters with the defendant. When asked if the tears were consistent with the forcible penetration of an adult erect penis into the vagina of a nine-year-old, Dr. Jean-Pierre responded that "[t]here [was] some penetration. I cannot tell you adult or whatever. I know it was something to penetrate inside. I cannot tell you exactly”. However, he acknowledged that if a male erect penis had fully entered the vagina, the hymen would have been broken. Furthermore, Dr. Jean-Pierre indicated that the penetration, whatever its cause, might well have occurred more than one year before his examination, prior to the dates of the alleged incidents.
As part of his case, the defendant established that he did *599not have the opportunity to commit the crimes charged, as he and the complainant were not home together on the nights that they allegedly occurred. Specifically, the defendant testified that the complainant stayed at her grandmother’s house while the complainant’s mother was in the hospital after the birth of their son. At the time the defendant was working nights as a doorman, so his brother stayed at his house at night to care for his infant daughter. This testimony was corroborated by that of the brother and that of the complainant’s mother. While the complainant’s uncle, who lived with the complainant’s grandmother, testified that he did not recall the complainant having stayed at his house, his testimony is of little probative value, as he also did not recall his sister having given birth to his nephew in January 1987.
With regard to the Mother’s Day incident, both the defendant and the complainant’s mother testified that the complainant accompanied her mother to Connecticut for a family picnic on that day. The defendant remained at home. The complainant’s mother did not arrive home until around midnight, causing the defendant to be late for work. The couple fought, and the defendant left the house and did not return until the next morning.
In his defense, the defendant also produced Olga LaLlave, who, in her capacity as an employee of St. Christopher’s Foster Care Agency, spoke with the complainant in Family Court in August 1989. At that time, the complainant indicated that the defendant had only touched her with his hands, and with no other part of his body. The discussion was not limited to one encounter.
Despite the somewhat equivocal nature of the medical evidence, which was, at times, at odds with the testimony of the complainant, and the existence of what my colleagues in the majority acknowledge to have been a "tenable” defense, the jury convicted the defendant of the counts submitted to it. Upon his discovery of certain medical records, the defendant made a pro se motion to set aside the jury’s verdict pursuant to CPL 330.30, and then, upon being provided with new counsel, a motion pursuant to CPL 440.10 to vacate the judgment of conviction, on the ground that he had been denied the effective assistance of counsel.
At the hearing held pursuant to the defendant’s post-judgment motion, it was established that on December 21, 1987, four days after the complainant reported the alleged incidents to her aunt, the aunt brought the complainant to a clinic, where the aunt’s doctor, Rebecca Acuna, a general practi*600tioner at that time, performed a general examination of the complainant, including the head, neck, chest and abdomen. Dr. Acuna also examined the vagina visually since she did not have a speculum small enough for examining a nine-year-old. She found an "intact hymen”, and a small rash, but no "tears”. Doctor Acuna told the family that she was "more or less * * * sure” that there was no "sex abuse as far as penetration [was] concerned”. Essentially, her findings were "normal”. Acuna noted that a one millimeter tear is like an abrasion. In any event, the condition of the hymen, as she saw it, was inconsistent with repeated penetration by an adult male.
Dr. Acuna’s findings were antithetical to those of Dr. Jean-Pierre, who testified on behalf of the People at the trial. Taking Dr. Jean-Pierre’s testimony alone, it was clear by the end of trial that the medical evidence posed a serious problem to the People’s case. It seems, however, that the defendant’s attorney was unaware of this crucial flaw until the trial. Evidently, counsel never examined the hospital records containing Doctor Jean-Pierre’s findings. In fact, when the records were introduced, trial counsel admitted that he had not seen them, even though they had been disclosed prior to the trial. Moreover, counsel never examined or introduced the even more exculpatory report of Doctor Acuna, let alone presented her as a witness. In an affidavit submitted in support of the defendant’s post-judgment motion, trial counsel readily admitted that "I did not realize that I had possession of [Doctor Acuna’s report] until it was brought to my attention by the defendant after the jury had convicted him” and further that "[t]here was no tactical or strategic reason for not using this material at the trial in the defendant’s defense”.
In my view, these omissions deprived the defendant of effective assistance of counsel and caused "actual prejudice”. Courts have frequently stated that it is "impossible to formulate a litmus test for 'inadequate’ or 'ineffective’ legal representation” (People v Ellis, 81 NY2d 854, 856). The appropriate inquiry is whether "the evidence, the law and the circumstances of a particular case, viewed together and as of the time of the representation, reveal that meaningful representation was provided” (People v Satterfield, 66 NY2d 796, 798-799; see also, People v Baldi, 54 NY2d 137, 147). "However 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 Droz, 39 NY2d 457, 462). Thus counsel *601must " 'conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial’ ” (People v Bennett, 29 NY2d 462, 466).
In the instant case, counsel’s failure to examine and utilize the medical evidence in his possession was inexcusable and cannot possibly be attributed to any justifiable trial strategy. Indeed, the majority does not directly dispute that such conduct constituted ineffective representation; the majority merely contends that the defendant was not prejudiced. However, had the defendant’s attorney simply read the medical records, he would have realized that there was little, if any, physical evidence corroborating the allegations of repeated rapes. Counsel then could have presented Dr. Acuna, who had been practicing medicine since 1978, and who, at the time of the hearing, was a third-year pediatrics resident, as an expert witness, or at least introduced her findings, and then located an experienced physician to testify about the importance of those findings. Undeniably, Dr. Acuna’s report, particularly coupled with the ambiguous and inconsistent findings of Dr. Jean-Pierre, would have prompted a careful attorney to conduct some further investigation (see, People v Baba-Ali, 179 AD2d 725, 729). While the majority provides cogent reasons why the trier of fact could have rejected Dr. Acuna’s medical findings, as a consequence of the fact that the defendant was deprived of a fundamental constitutional right, the trier of fact was not given the opportunity to evaluate this evidence for itself and draw its own conclusions as to its probative worth. In fact, the prosecutor exploited the defense counsel’s failure to call an expert witness in her summation, when, in response to counsel’s argument that penetration by an adult erect penis would have caused more damage than a one millimeter tear, she stated that "[djefense counsel is not a gynecologist with twenty years experience. Doctor John [sic] Pierre is”.
I must conclude that "[cjounsel was unprepared and so unfamiliar with the details of the defendant’s case 'as to doom the defense to failure’ ” (People v Kilstein, 174 AD2d 756, quoting People v Angellino, 91 AD2d 666, 668; see also, People v Baba-Ali, supra; People v Daley, 172 AD2d 619).