Opinion
106904
06-11-2015
The PEOPLE of the State of New York, Respondent, v. Gary WRIGHT, Appellant.
Law Offices of Michael Katzer, Slingerlands (Michael Katzer of counsel), for appellant. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Law Offices of Michael Katzer, Slingerlands (Michael Katzer of counsel), for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE and DEVINE, JJ.
Opinion
PETERS, P.J.Appeal, by permission, from an order of the County Court of Albany County (Herrick, J.), entered July 9, 2014, which, among other things, denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of attempted rape in the first degree and sexual abuse in the first degree (two counts), without a hearing.
Following a jury trial in November 2009, defendant was convicted of attempted rape in the first degree and two counts of sexual abuse in the first degree. Both defendant's judgment of conviction and the order denying his subsequent CPL 440.10 motion were affirmed by this Court on appeal (88 A.D.3d 1154, 931 N.Y.S.2d 727 [2011], lv. denied 18 N.Y.3d 863, 938 N.Y.S.2d 871, 962 N.E.2d 296 [2011] ). Approximately 2 ½ years later, defendant again moved to vacate the judgment of conviction pursuant to CPL 440.10, this time alleging that James Long, one of the three attorneys who represented him during the course of the criminal proceedings, was ineffective as a result of a conflict of interest. Specifically, defendant claimed that, while representing him, Long was simultaneously representing David Soares, the Albany County District Attorney, whose office was prosecuting defendant. Defendant also requested that the District Attorney's office be disqualified and a special prosecutor be appointed for any further proceedings that may occur in his case. County Court denied defendant's motion without a hearing, and defendant, by permission, now appeals.
The State and Federal Constitutions guarantee a criminal defendant the right to the effective assistance of counsel, that is, “representation that is reasonably competent, conflict-free and singlemindedly devoted to the client's best interests” (People v. Payton, 22 N.Y.3d 1011, 1013, 981 N.Y.S.2d 342, 4 N.E.3d 352 [2013] [internal quotationmarks and citation omitted]; accord People v. Ennis, 11 N.Y.3d 403, 409–410, 872 N.Y.S.2d 364, 900 N.E.2d 915 [2008], cert. denied 556 U.S. 1240, 129 S.Ct. 2383, 173 L.Ed.2d 1301 [2009] ; People v. Harris, 99 N.Y.2d 202, 209, 753 N.Y.S.2d 437, 783 N.E.2d 502 [2002] ). “Discussions of the effect of a lawyer's conflict of interest on a defendant's right to the effective assistance of counsel distinguish between a potential conflict and an actual conflict” (People v. Solomon, 20 N.Y.3d 91, 95, 956 N.Y.S.2d 457, 980 N.E.2d 505 [2012] ). “An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed and, in such situations, reversal is required if the defendant does not waive the actual conflict. In contrast, a potential conflict that is not waived by the accused requires reversal only if it ‘operates' on or ‘affects' the defense” (People v. Sanchez, 21 N.Y.3d 216, 223, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] [citations omitted]; see People v. Solomon, 20 N.Y.3d at 96–97, 956 N.Y.S.2d 457, 980 N.E.2d 505 ; People v. Harris, 99 N.Y.2d at 210, 753 N.Y.S.2d 437, 783 N.E.2d 502 ; People v. Ortiz, 76 N.Y.2d 652, 657, 563 N.Y.S.2d 20, 564 N.E.2d 630 [1990] ). The burden of showing that such a conflict exists rests with the defendant (see People v. Sanchez, 21 N.Y.3d at 223, 969 N.Y.S.2d 840, 991 N.E.2d 698 ; People v. Konstantinides, 14 N.Y.3d 1, 12 n. 4, 896 N.Y.S.2d 284, 923 N.E.2d 567 [2009] ; People v. Jordan, 83 N.Y.2d 785, 787, 610 N.Y.S.2d 952, 632 N.E.2d 1275 [1994] ).
For this reason, and inasmuch as the People were not even required to respond to the motion (see CPL 440.30[1][a] ; People v. Hoffler, 74 A.D.3d 1632, 1635 n. 4, 906 N.Y.S.2d 115 [2010], lv. denied 17 N.Y.3d 859, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ), there is no merit to defendant's argument that an adverse inference should have been drawn against the People due to its failure to submit an affidavit from Soares concerning his professional relationship with Long.
Defendant's assertion that an actual conflict of interest existed between Long and Soares finds no support in the record. It is undisputed that Long began representing defendant in the instant matter in February 2009 and continued to represent defendant in the pretrial stages of the criminal action until he was terminated in September 2009, approximately two months prior to the commencement of the jury trial. In support of his claim that Long was operating under a conflict at the time of the representation, defendant proffered a copy of an October 18, 2008 newspaper article which stated that Long had sent a letter to the Albany County Board of Elections on behalf of Soares' reelection campaign regarding the omission of Soares' name from a party line on thousands of absentee ballots for the 2008 election. The record is bereft of any evidence, however, that Long represented Soares or his campaign at any other time during the period leading up to and through his representation of defendant in the instant criminal action. Having put forth no proof that the representation was concurrent, defendant failed to show the existence of an actual conflict of interest (compare People v. Solomon, 20 N.Y.3d at 96–98, 956 N.Y.S.2d 457, 980 N.E.2d 505 ; People v. Lynch, 104 A.D.3d 1062, 1062–1063, 961 N.Y.S.2d 605 [2013] ).
While defendant also put forth evidence that Long represented Soares in connection with a professional misconduct matter in April 2011, as well as in various personal matters thereafter, such representation occurred well after the attorney-client relationship between Long and defendant ended. As such, it has no bearing on whether Long was operating under a conflict at the time of his representation of defendant.
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Assuming, without deciding, that Long represented Soares during his reelection campaign and that such representation created a potential conflict of interest, we conclude that defendant failed to meet the heavy burden of showing that “ ‘the conduct of his defense was in fact affected by the operation of the conflict of interest,’ or that the conflict ‘operated on’ the representation” (People v. Ortiz, 76 N.Y.2d at 657, 563 N.Y.S.2d 20, 564 N.E.2d 630, quoting People v. Alicea, 61 N.Y.2d 23, 31, 471 N.Y.S.2d 68, 459 N.E.2d 177 [1983] ; accord People v. Konstantinides, 14 N.Y.3d at 10, 896 N.Y.S.2d 284, 923 N.E.2d 567 ; People v. Robles, 115 A.D.3d 30, 37, 978 N.Y.S.2d 456 [2014], lv. denied 22 N.Y.3d 1202, 986 N.Y.S.2d 422, 9 N.E.3d 917 [2014] ; see People v. Sanchez, 21 N.Y.3d at 223, 969 N.Y.S.2d 840, 991 N.E.2d 698 ). The record plainly reveals that, during the seven-month pretrial period in which he represented defendant, Long made multiple court appearances on defendant's behalf, arranged for the crime scene to be photographed, assisted defendant in preparing to testify before the grand jury and filed appropriate motions to, among other things, suppress defendant's statement to police and dismiss the indictment. Perhaps most notably, Long obtained two favorable plea offers, both of which defendant rejected (see People v. Abar, 99 N.Y.2d 406, 410, 757 N.Y.S.2d 219, 786 N.E.2d 1255 [2003] ; People v. Bier, 307 A.D.2d 649, 650–651, 762 N.Y.S.2d 840 [2003], lv. denied 100 N.Y.2d 618, 767 N.Y.S.2d 401, 799 N.E.2d 624 [2003] ). Moreover, Long's representation of defendant ended two months prior to the commencement of the jury trial, and there is no suggestion that the successor attorney's loyalty to defendant was in any way compromised or that his representation of defendant leading up to and through the trial was less than meaningful (cf. People v. Konstantinides, 14 N.Y.3d at 11–12, 896 N.Y.S.2d 284, 923 N.E.2d 567 ). In light of these circumstances, defendant has failed to demonstrate that any such conflict operated on his defense (see id.; People v. Abar, 99 N.Y.2d at 410–411, 757 N.Y.S.2d 219, 786 N.E.2d 1255 ; People v. Monette, 70 A.D.3d 1186, 1187–1188, 895 N.Y.S.2d 574 [2010], lv. denied 15 N.Y.3d 776, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010] ; People v. McCrone, 12 A.D.3d 848, 849–850, 784 N.Y.S.2d 683 [2004], lv. denied 4 N.Y.3d 800, 795 N.Y.S.2d 176, 828 N.E.2d 92 [2005] ; People v. Bier, 307 A.D.2d at 650–651, 762 N.Y.S.2d 840 ).
Finally, absent a showing of “actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” (Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522 [1983] ), County Court was not required to disqualify the District Attorney's office with regard to any further proceedings that may arise in this case (see People v. English, 88 N.Y.2d 30, 34, 643 N.Y.S.2d 16, 665 N.E.2d 1056 [1996] ; People v. Herr, 86 N.Y.2d 638, 641–642, 635 N.Y.S.2d 159, 658 N.E.2d 1032 [1995] ; People v. Giroux, 122 A.D.3d 1063, 1064, 996 N.Y.S.2d 764 [2014] ; People v. Zinkhen, 89 A.D.3d 1319, 1320, 933 N.Y.S.2d 437 [2011], lv. denied 18 N.Y.3d 964, 944 N.Y.S.2d 492, 967 N.E.2d 717 [2012] ).ORDERED that the order is affirmed.
GARRY, ROSE and DEVINE, JJ., concur.