Opinion
November 16, 1990
Appeal from the Oneida County Court, Darrigrand, J.
Present — Doerr, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendants, brothers Michael and Ralph Kessler, were indicted and charged with burglary in the third degree and grand larceny in the third degree. The trial court appointed one attorney to represent both defendants. Following a jury trial, defendants were convicted as charged.
It is apparent from the record that the trial court failed to conduct an inquiry on the record to ascertain whether defendants understood that the possibility of a conflict existed by virtue of the joint representation (see, People v. Mattison, 67 N.Y.2d 462, cert. denied 479 U.S. 984; People v. Gomberg, 38 N.Y.2d 307; People v. Price, 152 A.D.2d 968, lv. denied 74 N.Y.2d 899). Because the proof suggests different trial tactics for each defendant, we conclude that the possibility for conflict bore a substantial relationship to the conduct of the defense (see, People v. Recupero, 73 N.Y.2d 877; People v. McDonald, 68 N.Y.2d 1; People v. Lombardo, 61 N.Y.2d 97). Consequently, the failure of the court to conduct a Gomberg inquiry requires reversal. In light of this determination, it is unnecessary to reach the remaining issues raised by defendants.