Opinion
October 10, 2000.
Judgment, Supreme Court, Bronx County (Frank Torres, J.), rendered December 3, 1996, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.
Adam L. Goldman, for respondent.
Mitchell J. Briskey, for defendant-appellant.
Before: Rosenberger, J.P., Nardelli, Williams, Mazzarelli, Wallach, JJ.
Defendant was not denied his right to conflict-free counsel when the court permitted an attorney who had represented him in pretrial stages of the case to represent the prosecution's principal eyewitness solely in her capacity as a defendant in two unrelated cases, while appointing another attorney to represent her when she testified. Defendant's trial attorney had no conflict of interest and presented a vigorous defense, including a searching cross-examination of the eyewitness (see, People v. Lombardo, 61 N.Y.2d 97, 103). Defendant has failed to show that his prior attorney's representation of the eyewitness, commenced subsequent to that attorney's withdrawal as defendant's counsel, had any effect on the conduct of the trial (see, People v. Pepe, 259 A.D.2d 949, 950, lv denied 93 N.Y.2d 1024; People v. Hritz, 244 A.D.2d 230, 231, lv denied 91 N.Y.2d 893). Defendant's pretrial attorney's subsequent representation of the eyewitness cannot be analogized to a defection to the prosecution's camp (compare, People v. English, 88 N.Y.2d 30, with People v. Shinkle, 51 N.Y.2d 417), particularly since the attorney represented the eyewitness solely as to matters in which she was in an adversarial stance regarding the prosecution. The purported conflict carried no genuine opportunity for abuse of confidences or appearance of impropriety.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.