Argued April 24, 2013; decided May 30, 2013

People v Diggins, 84 AD3d 667, reversed.

APPEARANCES OF COUNSEL

Simpson Thacher & Bartlett LLP, New York City (Roy L. Reardon of counsel), and Office of the Appellate Defender (Richard M. Greenberg and Rosemary Herbert of counsel) for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Sheryl Feldman and Alan Gadlin of counsel), for respondent.

Memorandum.

The order of the Appellate Division should be reversed, defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction and sentence granted and the case remitted to Supreme Court for further proceedings on the indictment. [*2]

It is well established that a defendant may not, by his absence alone, "waive his right to effective assistance of counsel" (People v Aiken, 45 NY2d 394, 398 [1978]). Although a defendant's willful absence from trial surely hampers an attorney's ability to represent the client adequately and must be taken into consideration, under the circumstances of this case, we conclude that counsel's lack of participation during the jury trial amounted to the ineffective assistance of counsel. On this record, including defendant's cooperation with his attorney in formulating a defense before absconding, there was a "reasonable basis for an active defense" (United States v Sanchez, 790 F2d 245, 254 [2d Cir 1986]).

Chief Judge Lippman and Judges Graffeo, Pigott and Rivera concur; Judges Read and Smith dissent and vote to affirm, concluding that defendant's trial counsel pursued a protest{**21 NY3d at 937} strategy (see People v Diggins, 11 NY3d 518, 525 [2008]). Judge Abdus-Salaam taking no part.

Order reversed, defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction and sentence granted, and case remitted to Supreme Court, New York County, for further proceedings on the indictment, in a memorandum.