Opinion
February 26, 1990
Appeal from the County Court, Suffolk County (Vaughn, J.).
Ordered that the judgments are affirmed, and the matter is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (5) with respect to the defendants Ernest DeMatteo and Edward DeMatteo; and it is further,
Ordered that the stay of execution of the judgment against Sail Carting and Recycling Co., Inc. is vacated forthwith.
The defendant Edward DeMatteo purchased part of a refuse collection business in 1982 which his son, Ernest, then operated as Sail Carting Recycling Company (hereinafter Sail Carting). Both DeMatteos and their corporation were indicted, following an investigation by the Attorney-General's Organized Crime Task Force into the private sanitation industry on Long Island.
Much of the evidence against the defendants was obtained through eavesdropping warrants. The defendants joined with their codefendants in a motion to suppress this evidence. The denial of that motion was affirmed on an appeal by the codefendants (People v Vespucci, 144 A.D.2d 48, affd 75 N.Y.2d 434). We find no reason to depart from that determination. The defendants assert, as an additional ground for suppression, that misrepresentations were made to the issuing court which would have affected the finding that probable cause existed for granting several extensions of the initial eavesdropping warrant. We find this contention to be without support in the record and meritless (see, People v Tambe, 71 N.Y.2d 492; Franks v Delaware, 438 U.S. 154).
Edward DeMatteo's trial counsel had previously represented one of the prosecution's chief witnesses on unrelated civil matters. Although the court should have conducted an inquiry of that defendant on the record to determine if he was aware of the potential risks of continued representation by this attorney and had knowingly chosen such continued representation, the failure to do so does not require reversal of his conviction (see, People v Lombardo, 61 N.Y.2d 97). The defendant Edward DeMatteo failed to establish that there was a significant possibility that a conflict of interest existed and that it affected the manner in which his defense was conducted (see, People v Recupero, 73 N.Y.2d 877; People v Alicea, 61 N.Y.2d 23).
Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendants' guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15). The evidence established that Ernest DeMatteo was involved in its daily operations of Sail Carting and joined with other carters in activities designed to restrain competition. Furthermore, the sentences imposed were not excessive.
The defendants' remaining contentions do not warrant reversal of their convictions (see, People v A-1 Carting, Co., 158 A.D.2d 693 [decided herewith]). Mangano, J.P., Bracken, Kooper and Sullivan, JJ., concur.