| People v Monette |
| 2010 NY Slip Op 01385 [70 AD3d 1186] |
| February 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jeremiah J.Monette, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Rogers, J.), rendered June 10,2008 in Franklin County, upon a verdict convicting defendant of the crimes of robbery in thesecond degree and criminal use of a firearm in the second degree.
In September 2007, defendant was charged in an indictment with one count each of robberyin the second degree and criminal use of a firearm in the second degree. The charges arose out ofan incident earlier that month when a masked man, brandishing what appeared to be a handgun,entered a convenience store in the Town of Chateaugay, Franklin County. The robber pointed thegun at the two employees, directed one of them to open the cash register and give him themoney, and fled after the employee complied. Both employees knew defendant, however, andidentified him as the robber due to, among other things, his distinctive voice and gait. Shortlythereafter, defendant was taken into custody. Following a jury trial, defendant was convicted ascharged and Supreme Court imposed a prison sentence of 13 years and five years of postreleasesupervision on each count, those sentences to run concurrently. Defendant now appeals.
Initially, as the People concede, defendant's conviction of criminal use of a firearm in thesecond degree must be reversed given his conviction of robbery in the second degree (seePeople v Brown, 67 NY2d 555, 560-561 [1986], cert denied 479 US 1093 [1987];People v [*2]Dunbar, 275 AD2d 968, 968 [2000], lvdenied 96 NY2d 734 [2001]).[FN*]
Defendant's remaining contention, that he received ineffective assistance of counsel, isunpersuasive. In that regard, defendant primarily points to counsel's prior representation of aprosecution witness, an inmate to whom defendant allegedly made damaging statements. Inorder to succeed on this claim, defendant must demonstrate a potential conflict of interest thatactually affected his defense or otherwise operated on counsel's representation (see People vKonstantinides, 14 NY3d 1, 10 [2009]; People v Ortiz, 76 NY2d 652, 656-657[1990]). Assuming, without deciding, that defendant made out a potential conflict of interest, theprior criminal history of the witness was explored in his testimony and defense counselconducted a vigorous cross-examination, eliciting from the witness details on how he could havelearned of the robbery absent admissions by defendant and his contacts with investigators.Defendant, accordingly, has not shown that the alleged conflict operated upon his defense in anyway (see People v Harris, 99 NY2d 202, 211 [2002]; People v Botting, 8 AD3d 1064, 1065-1066 [2004], lvdenied 3 NY3d 671 [2004]; People v Magee, 257 AD2d 688, 688-689 [1999]).Although defendant points to a myriad of other purported deficiencies in counsel's performance,the record as a whole establishes that defendant was provided with meaningful representation(see People v Benevento, 91 NY2d 708, 712 [1998]; People v Smith, 66 AD3d 1223, 1225 [2009]).
Spain, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment is modified, onthe law, by reversing defendant's conviction of criminal use of a firearm in the second degreeunder count two of the indictment; dismiss said count and vacate the sentence imposed thereon;and, as so modified, affirmed.
Footnote *: Defendant alleges that trialcounsel failed to raise this issue before Supreme Court, but that claim is belied by the record.