| People v McCutcheon |
| 2013 NY Slip Op 06102 [109 AD3d 1086] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JustinMcCutcheon, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (James R. Gardner of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges,J.), rendered November 17, 2011. The judgment convicted defendant, upon a nonjuryverdict, of attempted burglary in the second degree and criminal mischief in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of,inter alia, attempted burglary in the second degree (Penal Law §§ 110.00,140.25 [2]), defendant contends that he was denied effective assistance of counselbecause his then-girlfriend and the mother of his child, who was also the complainantand a key prosecution witness, paid his attorney's fees. We reject that contention.Because defendant apprised Supreme Court of the potential conflict of interest, we agreewith defendant that the court "had a duty . . . to conduct an inquiry 'toascertain, on the record, whether [defendant] had an awareness of the potential risksinvolved in his continued representation by the attorney and had knowingly chosen tocontinue such representation' " (People v Conte, 71 AD3d 1448, 1449 [2010], quotingPeople v Lombardo, 61 NY2d 97, 102 [1984]; see People v Carncross, 14NY3d 319, 327 [2010]). Although the court failed to conduct that inquiry, wenevertheless conclude that defendant was not denied effective assistance of counselinasmuch as he failed to show "that the conduct of his defense was in fact affected by theoperation of the conflict of interest, or that the conflict operated on the representation"(People v Weeks, 15 AD3d845, 847 [2005], lv denied 4 NY3d 892 [2005] [internal quotation marksomitted]; see People vSanchez, 21 NY3d 216, 223 [2013]; People v Hurlbert, 81 AD3d 1430, 1431 [2011], lvdenied 16 NY3d 896 [2011]). Indeed, the record establishes that defense counselthoroughly cross-examined the witness and elicited testimony concerning her criminalhistory and drug use, as well as her admission that she never saw defendant attempt toenter the house. Further, defense counsel introduced complainant's letters to defendant, inwhich she stated that she loved defendant and wanted him home with her and their child.
Contrary to defendant's further contention, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.