(concurring). I concur in the result reached by my colleagues but feel compelled to write separately because my reasons are so disparate. Like the majority, I believe that this is a case where we should invoke our “interest of justice” jurisdiction. However, the majority does so without finding any trial error on the part of the People, defense counsel, the trial court or the jury, a concept that I find troubling. Thus, while I agree that defendant indeed is entitled to a new trial, I would grant such relief based upon an identifiable trial error— namely, the ineffective assistance of counsel, notwithstanding the fact that such error was not raised on defendant’s CPL article 440 motion (cf., People v Wilson, 252 AD2d 241, 248).
I start with the fact that defense counsel made a general pretrial demand for Brady material without specifically requesting discovery of the infant’s skull. Additionally, the trial court’s determination following the CPL article 440 hearing, that defendant failed to prove that the People misrepresented that they had preserved and would deliver to defense counsel the victim’s skull for discovery and inspection, compels the conclusion that defense counsel did not orally request such discovery. Such conclusion is fortified by the fact that defense counsel moved for a trial order of dismissal based upon the People’s failure to produce the victim’s skull, but made no claim that the People had made assurances that such had been preserved for defense experts’ inspection. Indeed, at the time of that motion, in response to the trial court’s inquiry, defense counsel stated that he first inquired about inspecting the skull one week before trial. I conclude that the failure of defense counsel to timely request and secure the production of what plainly was critical evidence for examination by defense experts (and what later turned out to be exculpatory material) constituted ineffective assistance of counsel and, hence, deprived defendant of a fair trial.* I would thus reverse and order a new trial on that basis. Ordered that the order is reversed, on the *806facts and as a matter of discretion in the interest of justice, and matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court’s decision.
The majority’s unwillingness to determine the source of or responsibility for, as they characterize it, the misunderstanding regarding the availability and location of the infant’s skull is my principal concern. While the majority suggests that such misunderstanding may have arisen by reason of the *806contents of a pathologist’s report, this is contrary to defense counsel’s testimony at the hearing that he relied upon the People’s representations in response to his request, that the skull would be preserved and retained for examination by defendant’s experts, not that he was misled by an expert’s report.