| People v Durand |
| 2009 NY Slip Op 04476 [63 AD3d 1533] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AdamDurand, Appellant. |
—[*1] Richard M. Healy, District Attorney, Lyons, for respondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), rendered May16, 2006. The appeal was held by this Court by order entered December 21, 2007, decision wasreserved and the matter was remitted to Wayne County Court for further proceedings (46 AD3d1336 [2007]). The proceedings were held and completed.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by vacating the sentence and as modified thejudgment is affirmed, and the matter is remitted to Wayne County Court for resentencing.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofthree counts of criminal trespass in the third degree (Penal Law § 140.10 [a]) arising fromhis unlawful entry into a henhouse at the Wegmans Egg Farm. Defendant was acquitted of, interalia, three counts of burglary in the third degree (§ 140.20). We previously held this case,reserved decision and remitted the matter to County Court on the ground that the court shouldhave conducted a Gomberg hearing "with respect to the contention of defendant that hewas denied effective assistance of counsel at the pretrial stage of the criminal proceeding prior todenying his motion seeking to dismiss the indictment on that ground" (People v Durand,46 AD3d 1336, 1336-1337 [2007]). Defendant's former defense counsel (defense counsel)represented defendant and his codefendants prior to defendant's arraignment on the indictment.According to defendant, defense counsel obtained favorable plea bargains for the codefendantsbut conducted no plea negotiations on defendant's behalf and in fact advised defendant to testifybefore the grand jury, where he gave incriminating testimony that was used against him at trial.
Contrary to the contention of defendant in his supplemental brief, we conclude that the courtproperly determined upon remittal that there was no actual conflict with respect to the jointrepresentation of defendant and the codefendants prior to their arraignments on the indictment,i.e., that their defenses did not " 'run afoul of each other,' " and thus that dismissal of theindictment on that ground was not required (People v Gomberg, 38 NY2d 307, 312[1975]). The record of the Gomberg hearing establishes that defense counsel in factattempted to obtain a favorable plea bargain for defendant [*2]aswell as his codefendants prior to the presentation of the matter to the grand jury and that theDistrict Attorney declined to make defendant a plea offer at that time. The record of the hearingfurther establishes that the codefendants obtained different attorneys after their arraignments onthe indictment and that they obtained their respective plea bargains while represented by thoseattorneys. Defense counsel testified at the hearing that the court had raised the issue of apotential conflict of interest at defendant's arraignment on the indictment and that, in order tomaintain a harmonious relationship with the court, defense counsel agreed that each codefendantshould have separate counsel.
We further conclude that the court properly determined that any potential conflict of interestdid not affect the conduct of the defense (see People v Harris, 99 NY2d 202, 210[2002]). The record of the hearing establishes that defense counsel advised defendant that hisgrand jury testimony may negate the element of intent on the burglary counts inasmuch asdefendant would testify that his intent when entering the henhouse was to document theconditions and not to remove birds. Defense counsel also testified that he believed thatdefendant's grand jury testimony would benefit the codefendants as well. We note that theDistrict Attorney testified at the hearing that, at the time he presented the matter to the grandjury, he believed that the element of intent with respect to the burglary charges might have beennegated by defendant's grand jury testimony. Defense counsel further testified that he hadadvised defendant and the codefendants prior to the grand jury proceeding that he did not believethat there was a conflict of interest based upon his joint representation of them, but that theywere each entitled to their own attorney. He also testified that defendant was adamant that he andhis codefendants "were in this together" and that he did not want separate counsel. Indeed,defendant testified at the hearing that he chose to testify before the grand jury because he was themost eloquent of the three defendants and that he understood the strategy of advising the grandjury that his intent and that of the codefendants when entering the henhouse was humanitarian,not criminal. He further testified that he knew that his testimony could be used against him attrial. We thus conclude that the court properly denied defendant's motion to dismiss theindictment based on the alleged ineffective assistance of counsel.
Finally, we agree with the contention of defendant in his main brief that the court erred inconsidering the counts of burglary in the third degree and petit larceny, of which defendant wasacquitted, when imposing the sentences on the criminal trespass counts (see People vReeder, 298 AD2d 468 [2002], lv denied 99 NY2d 538 [2002]; see also People v Rogers, 56 AD3d1173, 1174 [2008]). Although defendant failed to preserve that contention for our review(see People v Brown, 38 AD3d676, 677 [2007], lv denied 9 NY3d 840 [2007]), we nevertheless exercise our powerto review that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). We therefore modify the judgment by vacating the sentence, and we remit thematter to County Court for resentencing. We have reviewed the remaining contentions ofdefendant in his main brief with respect to the sentence and conclude that they are without merit.Present—Scudder, P.J., Hurlbutt, Fahey and Green, JJ.