| People v Lynch |
| 2013 NY Slip Op 02113 [104 AD3d 1062] |
| March 28, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vDarwyn J. Lynch, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Stein, J. Appeals (1) from a judgment of the County Court of Delaware County(Becker, J.), rendered February 29, 2012, convicting defendant upon his plea of guilty ofthe crime of sexual abuse in the first degree, and (2) by permission, from an order of saidcourt, entered April 17, 2012, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment of conviction, without a hearing.
In September 2010, defendant and codefendant Edy R. Toussaint were each indictedon charges of rape in the first degree and various other crimes arising from an incidentwith a fellow student at SUNY Delhi in September 2009. Defendant retained JohnPappalardo Jr. to represent him and Toussaint retained Richard Portale for his defense.Toussaint ultimately reached a plea agreement with the People wherein he agreed totestify against defendant in exchange for a favorable plea and sentence. Shortlythereafter, as the trial was about to commence, defendant pleaded guilty to one count ofsexual abuse in the first degree, as a lesser included count of rape in the first degree, infull satisfaction of the indictment with a promised sentence of, among other things, threeyears in prison followed by three years of postrelease supervision.
Prior to sentencing, defendant retained new counsel and moved to withdraw his pleaon the ground that he was deprived of the effective assistance of counsel because Portalewas "of [*2]counsel" to Pappalardo's law firm anddefendant was never informed of the possible conflict of interest. Following a hearing,County Court denied defendant's motion and sentenced him to the agreed-upon sentence.After sentencing, defendant moved pursuant to CPL 440.10 to vacate his judgment ofconviction on the same ground, which motion County Court also denied. Defendant nowappeals from the judgment of conviction and, by permission, from the denial of his CPL440.10 motion.
When a single attorney or multiple attorneys associated with the same firmsimultaneously represent clients in a criminal matter, "if the clients' interests actuallyconflict, and if the defendant has not waived the conflict, the defendant is deprived of theeffective assistance of counsel" (People v Solomon, 20 NY3d 91, 98 [2012]; see Peoplev Ortiz, 76 NY2d 652, 656 [1990]; People v McDonald, 68 NY2d 1, 8[1986]).[FN*]Initially, we note that, given the small size of Pappalardo's law firm (fewer than 10attorneys), Portale's of counsel status "extends to the other lawyers in the firm" anyconflict that may exist (Cardinale v Golinello, 43 NY2d 288, 296 [1977]; seeSolow v Grace & Co., 83 NY2d 303, 311 [1994]; see generally Rules ofProfessional Conduct [22 NYCRR 1200.0] rules 1.7, 1.10 [a]; Easton & Echtman, P.C. vAurnou, 39 AD3d 251, 252-253 [2007], lv denied 9 NY3d 802 [2007]).As a result, there was a simultaneous representation of two clients—includingdefendant—by one firm, and defendant did not waive any potential conflict.
Reversal is required if the interests of defendant and Toussaint actually conflictedand such conflict had "a substantial relation to the conduct of the defense" (People vSolomon, 20 NY3d at 95 [internal quotation marks and citation omitted]). In thatregard, an actual conflict is almost assured where, as here, "law partners represent[ ] twocodefendants, one of whom plead[s] guilty and agree[s] to testify against the other"(People v Ortiz, 76 NY2d at 656; see People v Mattison, 67 NY2d 462,469-470 [1986], cert denied 479 US 984 [1986]). Such a scenario "is virtuallycertain to place lawyers involved in representing both in an untenable position"(People v Mattison, 67 NY2d at 469-470; see People v Solomon, 20NY3d at 97). Moreover, "once a conflict is clearly established, the courts will not enterinto 'nice calculations' as to the amount of prejudice resulting from the conflict"(People v Gomberg, 38 NY2d 307, 312 [1975], quoting Glasser v UnitedStates, 315 US 60, 76 [1942]; see People v Harris, 99 NY2d 202, 210[2002]; People v Ortiz, 76 NY2d at 657; People v Alicea, 61 NY2d 23,30 n [1983]; People v Macerola, 47 NY2d 257, 265 [1979]).
Here, as their cases proceeded, Portale negotiated a favorable plea bargain forToussaint and counseled him to accept the plea bargain and agree to testify againstdefendant. Thus, during plea negotiations, Portale advocated for a position directly atodds with defendant's interest (see People v Mattison, 67 NY2d at 470-471;People v Macerola, 47 NY2d at 262) and, upon accepting the plea, Toussaintbecame "a principal antagonist whose credibility and testimony [would have] to beundermined" if defendant proceeded to trial (People v Mattison, 67 NY2d at469). In light of the divided loyalties involved and the prospect of Toussaint being thePeople's principal witness at defendant's pending trial, "counsel's ability to objectivelyassess the best [*3]strategy for defendant to pursue" wasimpaired (People vCarncross, 14 NY3d 319, 328 [2010]; see People v Mattison, 67 NY2dat 469-470; People v Macerola, 47 NY2d at 262; People v Dell, 60AD2d 18, 22-23 [1977]). Inasmuch as the actual conflict of interest is clear, reversal isrequired (see People v Solomon, 20 NY3d at 97-98; People v Mattison,67 NY2d at 469-470).
Defendant's appeal from the order denying his motion is rendered academic by ourreversal of the judgment.
Peters, P.J., Lahtinen and Spain, JJ., concur. Ordered that the judgment is reversed,on the law, plea vacated, and matter remitted to the County Court of Delaware Countyfor further proceedings not inconsistent with this Court's decision. Ordered that theappeal from the order is dismissed, as academic.
Footnote *: The principlesconcerning conflicts of interest apply as forcefully to cases resolved by plea as they do tothose that proceed to trial (see People v Recupero, 73 NY2d 877, 878-879[1988]; People v Monroe, 54 NY2d 35, 38 [1981], cert denied 455 US947 [1982]).