The Appellate Division, Second Department, at 41 Monroe Place, Brooklyn
The Appellate Division, Second Department, at 41 Monroe Place, Brooklyn (NYLJ/Rick Kopstein)

In an unusual decision, a Brooklyn appellate panel has reduced, rather than reversed, a defendant’s conviction on ineffective assistance grounds.

With the consent of the district attorney, the Appellate Division, Second Department, reduced Charles Collins’ conviction from first-degree robbery to second-degree robbery because of an oversight by his defense attorney. The district attorney conceded that Collins was deprived of effective assistance under both the state and federal constitutions.

In People v. Collins, 2014 NY Slip Op 05555, the defendant was convicted of forcibly stealing property while displaying what appeared to be a firearm.

During trial, the prosecution introduced into evidence audio recordings from jail in which the defendant admitted committing the robbery but said he only pretended to have a gun.

On appeal, Collins argued that defense attorney George Sheinberg of Brooklyn should have asked state Supreme Court Justice Bruce Balter (See Profile) to advise the jury that the object that appeared to be a firearm was not capable of causing injury or death. The prosecution and Collins’ appellate counsel, Dina Zloczower of Appellate Advocates, agreed to forego a new trial and also agreed the appropriate remedy was to reduce the charge on conviction to second-degree robbery.

In an unsigned unanimous decision, the Second Department modified the judgment in the interests of justice and remanded for resentencing. Collins is serving a 20-year term on the first-degree robbery conviction, and faces a sentence of 7 to 15 years for second-degree robbery when he is resentenced.

On the panel were justices Ruth Balkin (See Profile), Cheryl Chambers (See Profile), Plummer Lott (See Profile) and Sylvia Hinds-Radix (See Profile).

Assistant District Attorneys Leonard Joblove, Victor Barall and Allison Ageyeva represented the prosecution.

Sheinberg was unavailable for comment Thursday.