Opinion
March 10, 1989
Appeal from the Steuben County Court, Finnerty, J.
Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of first degree rape and second degree burglary, defendant argues that his consent to representation by assigned counsel, notwithstanding a possible conflict of interest, was not informed. Defendant also claims that counsel's representation was ineffective and that the court erred in denying his post-trial motion for a hearing to determine whether new evidence supported an insanity defense. Each of these claims lacks merit. At the outset of the trial the court advised defendant of a possible conflict of interest and defendant's consent to assigned counsel's representation indicated defendant's awareness of the potential risks involved (see, People v. Macerola, 47 N.Y.2d 257, 263; People v. Gomberg, 38 N.Y.2d 307, 313-314). Moreover, on this record, it is evident that counsel's representation was effective and meaningful (see, People v. Baldi, 54 N.Y.2d 137, 147). The court properly denied defendant's post-trial motion without a hearing because the information upon which the motion was based was not newly discovered and could have been produced by defendant at trial with due diligence.