| People v Wright |
| 2015 NY Slip Op 04884 [129 AD3d 1217] |
| June 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gary Wright, Appellant. |
Law Offices of Michael Katzer, Slingerlands (Michael Katzer of counsel), forappellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Peters, P.J. Appeal, by permission, from an order of the County Court of AlbanyCounty (Herrick, J.), entered July 9, 2014, which, among other things, denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes ofattempted rape in the first degree and sexual abuse in the first degree (two counts),without a hearing.
Following a jury trial in November 2009, defendant was convicted of attempted rapein the first degree and two counts of sexual abuse in the first degree. Both defendant'sjudgment of conviction and the order denying his subsequent CPL 440.10 motion wereaffirmed by this Court on appeal (88 AD3d 1154 [2011], lv denied 18 NY3d 863[2011]). Approximately 2
The State and Federal Constitutions guarantee a criminal defendant the right to theeffective assistance of counsel, that is, "representation that is reasonably competent,conflict-free and singlemindedly devoted to the client's best interests" (People v Payton, 22 NY3d1011, 1013[*2][2013] [internal quotation marks andcitation omitted]; accord Peoplev Ennis, 11 NY3d 403, 409-410 [2008], cert denied 556 US 1240[2009]; People v Harris, 99 NY2d 202, 209 [2002]). "Discussions of the effect ofa lawyer's conflict of interest on a defendant's right to the effective assistance of counseldistinguish between a potential conflict and an actual conflict" (People v Solomon, 20 NY3d91, 95 [2012]). "An actual conflict exists if an attorney simultaneously representsclients whose interests are opposed and, in such situations, reversal is required if thedefendant does not waive the actual conflict. In contrast, a potential conflict that is notwaived by the accused requires reversal only if it 'operates' on or 'affects' the defense" (People v Sanchez, 21 NY3d216, 223 [2013] [citations omitted]; see People v Solomon, 20 NY3d at96-97; People v Harris, 99 NY2d at 210; People v Ortiz, 76 NY2d 652,657 [1990]). The burden of showing that such a conflict exists rests with the defendant(see People v Sanchez, 21 NY3d at 223; People v Konstantinides, 14 NY3d 1, 12 n 4 [2009];People v Jordan, 83 NY2d 785, 787 [1994]).[FN1]
Defendant's assertion that an actual conflict of interest existed between Long andSoares finds no support in the record. It is undisputed that Long began representingdefendant in the instant matter in February 2009 and continued to represent defendant inthe pretrial stages of the criminal action until he was terminated in September 2009,approximately two months prior to the commencement of the jury trial. In support of hisclaim that Long was operating under a conflict at the time of the representation,defendant proffered a copy of an October 18, 2008 newspaper article which stated thatLong had sent a letter to the Albany County Board of Elections on behalf of Soares'reelection campaign regarding the omission of Soares' name from a party line onthousands of absentee ballots for the 2008 election. The record is bereft of any evidence,however, that Long represented Soares or his campaign at any other time during theperiod leading up to and through his representation of defendant in the instant criminalaction.[FN2] Havingput forth no proof that the representation was concurrent, defendant failed to show theexistence of an actual conflict of interest (compare People v Solomon, 20 NY3dat 96-98; People v Lynch,104 AD3d 1062, 1062-1063 [2013]).
Assuming, without deciding, that Long represented Soares during his reelectioncampaign and that such representation created a potential conflict of interest, weconclude that defendant failed to meet the heavy burden of showing that " 'theconduct of his defense was in fact affected by the operation of the conflict of interest,' orthat the conflict 'operated on' the representation" (People v Ortiz, 76 NY2d at657, quoting People v Alicea, 61 NY2d 23, 31[*3][1983]; accord People v Konstantinides, 14 NY3dat 10; People v Robles, 115AD3d 30, 37 [2014], lv denied 22 NY3d 1202 [2014]; see People vSanchez, 21 NY3d at 223). The record plainly reveals that, during the seven-monthpretrial period in which he represented defendant, Long made multiple court appearanceson defendant's behalf, arranged for the crime scene to be photographed, assisteddefendant in preparing to testify before the grand jury and filed appropriate motions to,among other things, suppress defendant's statement to police and dismiss the indictment.Perhaps most notably, Long obtained two favorable plea offers, both of which defendantrejected (see People v Abar, 99 NY2d 406, 410 [2003]; People v Bier,307 AD2d 649, 650-651 [2003], lv denied 100 NY2d 618 [2003]). Moreover,Long's representation of defendant ended two months prior to the commencement of thejury trial, and there is no suggestion that the successor attorney's loyalty to defendant wasin any way compromised or that his representation of defendant leading up to andthrough the trial was less than meaningful (cf. People v Konstantinides, 14 NY3dat 11-12). In light of these circumstances, defendant has failed to demonstrate that anysuch conflict operated on his defense (see id.; People v Abar, 99 NY2d at410-411; People v Monette,70 AD3d 1186, 1187-1188 [2010], lv denied 15 NY3d 776 [2010]; People v McCrone, 12 AD3d848, 849-850 [2004], lv denied 4 NY3d 800 [2005]; People v Bier,307 AD2d at 650-651).
Finally, absent a showing of "actual prejudice arising from a demonstrated conflict ofinterest or a substantial risk of an abuse of confidence" (Matter of Schumer vHoltzman, 60 NY2d 46, 55 [1983]), County Court was not required to disqualify theDistrict Attorney's office with regard to any further proceedings that may arise in thiscase (see People v English, 88 NY2d 30, 34 [1996]; People v Herr, 86NY2d 638, 641-642 [1995]; People v Giroux, 122 AD3d 1063, 1064 [2014]; People v Zinkhen, 89 AD3d1319, 1320 [2011], lv denied 18 NY3d 964 [2012]).
Garry, Rose and Devine, JJ., concur. Ordered that the order is affirmed.
Footnote 1:For this reason, andinasmuch as the People were not even required to respond to the motion (see CPL440.30 [1] [a]; People vHoffler, 74 AD3d 1632, 1635 n 4 [2010], lv denied 17 NY3d 859[2011]), there is no merit to defendant's argument that an adverse inference should havebeen drawn against the People due to its failure to submit an affidavit from Soaresconcerning his professional relationship with Long.
Footnote 2:While defendant also putforth evidence that Long represented Soares in connection with a professionalmisconduct matter in April 2011, as well as in various personal matters thereafter, suchrepresentation occurred well after the attorney-client relationship between Long anddefendant ended. As such, it has no bearing on whether Long was operating under aconflict at the time of his representation of defendant.