People v Adeola

2008 NY Slip Op 04532 [51 AD3d 811]

May 13, 2008

Appellate Division, Second Department

As corrected through Wednesday, July 16, 2008

The People of the State of New York, Respondent, v BolaAdeola, Appellant.

—[*1]Steven Banks, New York, N.Y. (Mitchell J. Briskey of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Gary Fidel,and Linda Cantoni of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Queens County (Kron, J.),dated September 14, 2005, which, after a hearing, denied his motion for resentencing pursuant tothe Drug Law Reform Act of 2004 (L 2004, ch 738, § 23) on his conviction of criminalsale of a controlled substance in the first degree and criminal sale of a controlled substance in thesecond degree, which sentence was originally imposed, upon a jury verdict, on June 10, 2002.

Ordered that the order is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for the assignment of new counsel and a new determination on the motionthereafter, in accordance herewith.

The defendant was convicted of, inter alia, criminal sale of a controlled substance in the firstdegree, a class A-I drug felony, and criminal sale of a controlled substance in the second degree,a class A-II drug felony. On June 10, 2002, the defendant was sentenced to, among other things,an indeterminate term of imprisonment of 25 years to life on his conviction of criminal sale of acontrolled substance in the first degree and from 81/3 years to life on hisconviction of criminal sale of a controlled substance in the second degree, to be servedconsecutively. On his direct appeal, the defendant's sentence was reduced to concurrent terms (see People v Adeola, 12 AD3d452 [2004]). Following the enactment of the Drug Law Reform Act of 2004 (L 2004, ch738) (hereinafter the 2004 DLRA), the defendant moved for resentencing. The defendant and acodefendant were simultaneously represented by the same attorney at the hearing on the motionfor resentencing. During the hearing, in the course of this dual representation, the defendant'sattorney argued that his [*2]other client, a codefendant, was lessculpable than the defendant and therefore, deserving of resentencing. This argument necessarilyimplied that the defendant was less deserving of resentencing than the codefendant. Followingthe hearing, the Supreme Court denied the defendant's motion for resentencing.

On appeal, the defendant contends that he was deprived of the effective assistance of counselby the dual representation due to a conflict of interest. In order to prevail on a claim of conflict ofinterest a defendant must establish: (1) a potential conflict, and (2) that the conduct of his defensewas in fact "affected" by the conflict of interest, or that the conflict "operated on" counsel'srepresentation (People v Abar, 99 NY2d 406, 409 [2003]; see People v Smart, 96NY2d 793 [2001]; People v Longtin, 92 NY2d 640, 644 [1998], cert denied 526US 1114 [1999]). There was no inquiry by the Supreme Court as to whether the defendant wasaware of the potential risks involved in dual representation (see People v Gomberg, 38NY2d 307 [1975]). Under the circumstances of this case, the defendant established that he wasdenied the effective assistance of counsel because of a conflict of interest (cf. People vOrtiz, 76 NY2d 652 [1990]). Accordingly, the matter must be remitted to the Supreme Court,Queens County, for the assignment of new counsel and a new determination on the defendant'smotion thereafter.

The defendant's remaining contention is without merit. Mastro, J.P., Ritter, Carni andMcCarthy, JJ., concur.