Per Curiam
Murray appealed from a judgment convicting him of aggravated driving while intoxicated per se and driving while intoxicated. An officer observed a vehicle parked in a parking lot with its lights on and engine running, and Harris asleep in the driver's seat. Harris, on appeal, argued ineffective assistance of counsel claiming his trial attorney made numerous errors throughout the trial depriving him of a fair trial. The panel agreed finding Harris' trial attorney presented no evidence, but argued that Harris could not be found guilty of the charges as prosecutors could not prove he operated the vehicle within the meaning of the Vehicle and Traffic Law as he had no present intent to place the vehicle in motion because he was asleep when the officer found him. Yet, being asleep in the driver's seat of a vehicle with a running engine has been held to constitute operation of a vehicle under VTL §1192 absent evidence the engine was running for some other reason than with the intent of driving it, such as using the air conditioner or heater. The panel also found it was clear that no legitimate trial strategy existed for Harris' trial attorney's actions which, when considered cumulatively, deprived him of meaningful representation. Hence, it reversed the conviction, remitting the matter for a new trial.
