| People v Zinkhen |
| 2011 NY Slip Op 08503 [89 AD3d 1320] |
| November 23, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Thomas Zinkhen,Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Ulster County (Schneer, J.),rendered October 5, 2009, convicting defendant upon his plea of guilty of the crimes of criminalpossession of stolen property in the fourth degree (two counts), grand larceny in the fourth degree,forgery in the second degree (three counts) and petit larceny.
In 2009, defendant was charged in an indictment with the crimes of criminal possession of stolenproperty in the fourth degree (two counts), grand larceny in the fourth degree, forgery in the seconddegree (three counts) and petit larceny. He thereafter moved for an order dismissing the indictment onthe ground that actual prejudice, inherent impropriety and a conflict of interest arose from the fact thatthe Ulster County District Attorney had previously represented him while the District Attorney was amember of the Public Defender's office. Alternatively, defendant requested that the District Attorney'soffice be disqualified and a special prosecutor be appointed. Defendant subsequently pleaded guilty ascharged and was sentenced, as a second felony offender, to concurrent prison terms resulting in anaggregate sentence of 3 to 6 years, with the sentence to run concurrently with the sentences beingserved on unrelated convictions. Defendant now appeals.
We affirm. Defendant's contention on appeal, that the indictment should have been [*2]dismissed or a special prosecutor appointed based upon the DistrictAttorney's previous representation of him, is precluded from our review by defendant's knowing,voluntary and intelligent guilty plea (see People v Crown, 124 AD2d 898, 899 [1986];People v Bump, 103 AD2d 974, 975 [1984]). In any event, defendant's contention is withoutmerit. Defendant does not claim, nor does the record demonstrate, that he suffered any actual prejudiceor that there was "a substantial risk of an abuse of confidence" due to the prior representation(Matter of Schumer v Holtzman, 60 NY2d 46, 55 [1983]; see People v Zinkhen, 89AD3d 1319 [2011] [decided herewith]; People v Terk, 24 AD3d 1038, 1041 [2005]; People vVanderpool, 217 AD2d 716, 718 [1995], lv denied 86 NY2d 847 [1995]).
Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.