Opinion
October 31, 1995
Appeal from the Supreme Court, New York County (Leslie Crocker Snyder, J.).
The court should have conducted a hearing to determine whether defendant, accused of running a drug ring, was aware of the potential risks arising out of his attorney's past representation of one of his operatives who testified against him at trial ( see, People v. Gomberg, 38 N.Y.2d 307). However, in view of the witness's cooperation agreement with the prosecution ( People v Lombardo, 61 N.Y.2d 97, 102-103), and the absence of any indication that counsel felt constrained in any manner in cross-examining his former client or failed to explore a relevant line of inquiry ( compare, supra, with People v. McDonald, 68 N.Y.2d 1), there is no basis for a finding of actual conflict, and the error, therefore, does not require reversal. Defendant's claim that ineffective assistance of counsel inheres in counsel's failure to adequately advise him of the consequences of the continued representation was never raised pursuant to CPL article 440, and cannot adequately be addressed on the present record.
Defendant was not prejudiced by the testimony of a police officer that the body of one of defendant's associates had been found in a car in which items were recovered that linked defendant to a nearby drug operation, corroborating certain coconspirator statements. The court's instructions, which the jury is presumed to have followed ( People v. Davis, 58 N.Y.2d 1102), the People's stipulation, and the officer's testimony itself made clear that defendant was not responsible for the killing.
We find no abuse of sentencing discretion.
Concur — Murphy, P.J., Ellerin, Kupferman, Asch and Mazzarelli, JJ.