| People v Patterson |
| 2019 NY Slip Op 07953 [177 AD3d 1027] |
| November 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Larry Patterson, Appellant. |
Norbert A. Higgins, Binghamton, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri ofcounsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Broome County (Dooley,J.), rendered August 10, 2016, convicting defendant upon his plea of guilty of the crimeof criminal possession of a weapon in the second degree.
Defendant was charged in a multicount indictment with various crimes, the mostserious being attempted murder in the second degree. During a preplea appearance,County Court noted on the record that, during an off-the-record conference, defensecounsel disclosed that he had a conflict in the case and that, if the matter was notresolved by a guilty plea, he would be unable to represent defendant at a trial. Defensecounsel stated that he discussed the conflict with defendant and defendant had revealedhis desire to continue with defense counsel's representation, and would be willing towaive any conflict. Defendant subsequently pleaded guilty to criminal possession of aweapon in the second degree in full satisfaction of the indictment. County Courtsentenced him to 10 years in prison followed by five years of postrelease supervision.Defendant appeals.
Defendant contends that his counsel was ineffective due to a conflict of interest andthat County Court did not make an adequate inquiry regarding such conflict prior toaccepting his guilty plea. These claims, however, are unpreserved for our review as therecord does not disclose that defendant made an appropriate postallocution motion towithdraw his guilty plea (seePeople v Marshall, 173 AD3d 1257, 1259 [2019]; People v Pettigrew, 161 AD3d1306, 1307 [2018], lv denied 32 NY3d 940 [2018]; compare People v Rudolph,170 AD3d 1258, 1259 [2019], lv denied 34 NY3d 937 [2019]). Even if wewere to consider them, the record is lacking in detail as to whether an actual or potentialconflict existed that triggered the court's duty to make a further inquiry (see generallyPeople v Gomberg, 38 NY2d 307, 314 [1975]). "An actual conflict exists if anattorney simultaneously represents clients whose interests are opposed and, in suchsituations, reversal is required if the defendant does not waive the actual conflict" (People v Palmer, 173 AD3d1560, 1561 [2019] [citations omitted]; see People v Wright, 27 NY3d 516, 520-521 [2016]). "Incontrast, a potential conflict that is not waived by the accused requires reversal only if itoperates on or affects the defense" (People v Palmer, 173 AD3d at 1561[citations omitted]; see People v Rudolph, 170 AD3d at 1263; People v Mainello, 29 AD3d1175, 1177 [2006]). The record here does not indicate that defense counselsimultaneously represented defendant and another client with an opposing interest or thathis representation created a potential conflict that affected the defense. To the extentthere may be evidence outside the record that supports defendant's claims, they are moreproperly the subject of a CPL article 440 motion.
Garry, P.J., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.