| People v McGillicuddy |
| 2013 NY Slip Op 00813 [103 AD3d 1200] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JohnP. McGillicuddy, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego, for respondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered March 20, 2012. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree, criminal mischief in the fourth degree and attemptedassault in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, burglary in the second degree (Penal Law § 140.25 [2]).Viewing the evidence in light of the elements of the crime of burglary in the seconddegree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict with respect to that crime is against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
We agree with defendant, however, that reversal is required because he was deprivedof effective assistance of counsel based on a potential conflict of interest. "The NewYork State and Federal Constitutions guarantee the right to effective assistance ofcounsel, meaning representation that is reasonably competent, conflict-free andsingle-mindedly devoted to the client's best interests" (People v Longtin, 92NY2d 640, 644 [1998], cert denied 526 US 1114 [1999]; see People vHarris, 99 NY2d 202, 209 [2002]). A few days before trial, defense counsel becameaware of a recorded conversation between defendant and defense counsel's former clientthat the People sought to introduce in evidence to show defendant's motive and intent forthe burglary. Defense counsel's former client was convicted of murder shortly before thistrial began. Defense counsel was also aware that, when defendant was arrested for theinstant crimes, he gave a statement to a police officer regarding defense counsel's formerclient that the People also intended to introduce in evidence.
When defense counsel raised the potential conflict of interest before County Court,the court erred in failing to ascertain whether defendant was aware of the potential riskand knowingly chose to continue with his retained counsel (see People vMcDonald, 68 NY2d 1, 9 [1986], rearg dismissed 69 NY2d 724 [1987]; see also People v Carncross,14 NY3d 319, 327 [2010]). That error requires reversal only if defendant firstestablishes that defense counsel had a potential conflict of [*2]interest (see Harris, 99 NY2d at 210;Longtin, 92 NY2d at 644; McDonald, 68 NY2d at 9). Defendant mustthen "demonstrate that 'the conduct of his defense was in fact affected by the operation ofthe conflict of interest,' or that the conflict 'operated on' counsel's representation"(Longtin, 92 NY2d at 644; see McDonald, 68 NY2d at 9). Stateddifferently, a defendant must establish that the potential conflict bore "such a 'substantialrelation to the conduct of the defense' as to require reversal" (People v Solomon, 20 NY3d91, 95 [2012]). "Notably, the requirement that a potential conflict have affected, oroperated on, or borne a substantial relation to the conduct of the defense—threeformulations of the same principle—is not a requirement that defendant showspecific prejudice" (People v Ortiz, 76 NY2d 652, 657 [1990]).
Defendant established that defense counsel had a potential conflict of interest basedon his representation of the former client (see generally Longtin, 92 NY2d at644; Ortiz, 76 NY2d at 656), and we agree with defendant that the conflict bore asubstantial relation to the conduct of the defense, requiring reversal (see People vKrausz, 84 NY2d 953, 955 [1994]). Defense counsel indicated that he was unable tocross-examine the police officer with respect to defendant's statement concerning hisformer client; he stipulated that his former client's voice was on the recording and thusavoided having to confront his former client in that regard; and he did not call his formerclient to testify regarding the recorded conversations with defendant. Indeed, defendant'sformer client was mentioned several times during the prosecutor's examination ofwitnesses and in the prosecutor's closing argument, prompting the court to issue acurative instruction to the jury that it was not to infer that defendant was involved withthe murder of which the former client was convicted. Under all the circumstances, weagree with defendant that the conduct of the defense was affected by the conflict ofinterest (see generally Longtin, 92 NY2d at 644; McDonald, 68 NY2d at9).
In light of our determination, we do not address defendant's remaining contentions.Present—Scudder, P.J., Centra, Carni, Lindley and Sconiers, JJ.