Opinion
Submitted March 21, 1980
Decided April 24, 1980
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH JASPAN, J.
John R. Lewis for appellant.
Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered as to appellant for the reasons stated in Part B of the opinion by Mr. Justice J. IRWIN SHAPIRO at the Appellate Division (68 A.D.2d, at pp 574-578). The trial court having made no meaningful inquiry on the record to ascertain whether appellant was cognizant of the potential risks inherent in his representation by the same counsel as his codefendant, the significant possibility of a conflict of interest arising out of the differing types and quantum of evidence against each, including the disincentive to calling appellant to the stand despite his lack of a criminal record, mandates reversal of his conviction (People v Macerola, 47 N.Y.2d 257; see, also, People v Baffi, 49 N.Y.2d 820).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order reversed and a new trial ordered in a memorandum.