| People v Palmer |
| 2019 NY Slip Op 05228 [173 AD3d 1560] |
| June 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Cordell F. Palmer, Appellant. |
Kevin A. Jones, Ithaca, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered June 2, 2016, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a controlled substance in the third degree.
A confidential informant (hereinafter CI) provided police with information that an individualwas selling heroin from an apartment. The police obtained a search warrant and raided theapartment, and defendant was arrested and charged by indictment with criminal possession of acontrolled substance in the third degree and criminally using drug paraphernalia in the seconddegree. At arraignment, defense counsel, a member of the Public Defender's office, informedCounty Court that the People had advised him of a possible conflict of interest issue regardingthe dual representation of defendant and the CI by the Public Defender's office. County Court didnot conduct any further inquiry, address the issue with defendant in order to obtain informedconsent or assign new counsel. Defendant subsequently pleaded guilty to attempted criminalpossession of a controlled substance in the third degree in full satisfaction of the indictment.County Court sentenced defendant, as a second felony offender, to the agreed-upon sentence ofthree years in prison—together with three years of postrelease supervision—to beserved under parole supervision as part of the Willard drug treatment program pursuant to CPL410.91. Defendant appeals.
Defendant argues that he was denied the effective assistance of counsel because the PublicDefender's office had an actual conflict of interest and defendant did not consent to the conflict.Even assuming that the issue is not preserved for our review, we find that the particularcircumstances presented here warrant the exercise of our interest of justice jurisdiction(see CPL 470.15 [3] [c]). "A defendant is denied the right to effective assistance ofcounsel guaranteed by the Sixth Amendment when, absent inquiry by the court and the informedconsent of [the] defendant, defense counsel represents interests which are actually in conflictwith those of [the] defendant" (People v McDonald, 68 NY2d 1, 8 [1986] [citationsomitted]; see People v Solomon, 20NY3d 91, 95-96 [2012]). "Discussions of the effect of a lawyer's conflict of interest on adefendant's right to the effective assistance of counsel distinguish between a potential conflictand an actual conflict" (People v Solomon, 20 NY3d at 95 [citations omitted]). "Anactual conflict exists if an attorney simultaneously represents clients whose interests are opposedand, in such situations, reversal is required if the defendant does not waive the actual conflict. Incontrast, a potential conflict that is not waived by the accused requires reversal only if it operateson or affects the defense" (People vSanchez, 21 NY3d 216, 223 [2013] [internal quotation marks and citations omitted]; see People v Wright, 27 NY3d516, 520-521 [2016]).
Here, the People concede that the Public Defender's office was simultaneously representingboth defendant and the CI during the pendency of this criminal action, and defendant and the CIhad opposing interests. Inasmuch as defendant never waived the conflict, reversal of thejudgment is warranted (see People v Solomon, 20 NY3d at 95-98).
Clark, J.P., Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment is reversed,as a matter of discretion in the interest of justice, and matter remitted to the County Court ofBroome County for further proceedings not inconsistent with this Court's decision.