| People v Conte |
| 2010 NY Slip Op 02248 [71 AD3d 1448] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Frank A.Conte, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedMarch 18, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a controlled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict oftwo counts of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]). Defendant contends that he was denied effective assistance of counselbecause defense counsel did not move to withdraw from representing him despite the fact thatshe had previously represented a key prosecution witness. We reject that contention. Based onthe record before us, it appears that County Court was apprised of the potential conflict. Thecourt therefore had a duty, independent from that of defense counsel, to conduct an inquiry "toascertain, on the record, whether [defendant] had an awareness of the potential risks involved inhis continued representation by the attorney and had knowingly chosen to continue suchrepresentation" (People v Lombardo, 61 NY2d 97, 102 [1984]; see generally Peoplev Gomberg, 38 NY2d 307, 313-314 [1975]). Although the court failed to conduct thatinquiry, we nevertheless conclude that defendant was not denied effective assistance of counselbased on defense counsel's failure to move to withdraw. Defendant has failed to establish that theconflict of interest arising from the prior representation "affected, . . . operated on,or [bore] a substantial relation to the conduct of the defense" (People v Ortiz, 76 NY2d652, 657 [1990]; see Lombardo, 61 NY2d at 103; People v Jenkins, 256 AD2d735, 736-737 [1998], lv denied 93 NY2d 854 [1999]).
We reject the further contention of defendant that he was denied effective assistance ofcounsel based on defense counsel's failure to make a written motion pursuant to CPL 330.30 (3)to set aside the verdict based on newly discovered evidence. Defense counsel in fact made anoral motion to set aside the verdict on that ground, which is permissible pursuant to CPL 330.40(1), and the court denied the motion. In any event, with respect to the merits of the motion, thealleged newly discovered evidence to which defendant refers is the statement of a proposedwitness that he, rather than defendant, answered a controlled telephone call made by aconfidential informant (CI) and informed the CI that another individual "could get [the CI] whathe needed." We conclude that such evidence was insufficient "to create a probability that[,] hadsuch testimony been received at the trial[,] the verdict would have been more favorable to thedefendant" (CPL [*2]330.30 [3]). In any event, we note that thejury was unable to reach a verdict on the two counts of criminal sale of a controlled substance inthe third degree (Penal Law § 220.39 [1]) to which his motion pertained, and theprosecutor and defense counsel agreed to accept the partial verdict. Present—Smith, J.P.,Fahey, Carni, Lindley and Sconiers, JJ.