Conflict Of Interest Contention Rejected

The New York Court of Appeals declined to disturb a conviction for two unrelated murders that had been tried together based on a conflict of interest allegation relating to a business relationship between the prosecutor and defense counsel

The defendant argues that the improper business relationship between his defense counsel and an ADA who was prosecuting him created an impermissible conflict of interest that required vacatur of his conviction. He first contends that the arrangement created an actual conflict of interest, which requires reversal if not waived (see People v Solomon, 20 NY3d 91, 95 [2012]). Such a conflict arises when an attorney “has divided and incompatible loyalties within the same matter necessarily preclusive of single-minded advocacy” (People v Brown, 33 NY3d 983, 987 [2019] [cleaned up and internal quotation marks omitted]). That is not what occurred here. The ADA was paid for drafting four appellate briefs and a motion for a change of venue in other cases litigated outside of the county where this prosecution took place. The record indicates that the work was performed on nights and weekends, without access to defense counsel’s office or files.

The defendant also argues, in the alternative, that the arrangement created a potential conflict of interest necessitating reversal. We have held that reversal of a conviction is required if a defendant shows that a potential conflict actually operated on the conduct of his defense (see People v Sanchez, 21 NY3d 216, 223 [2013]). Evidence that unconflicted counsel would have acted in a “more vigorous, less inhibited manner” may establish this point (People v Harris, 99 NY2d 202, 211 [2002]). The inquiry presents a mixed question of law and fact, and thus we will reverse only if the Appellate Division’s determination lacks record support (see People v Ennis, 11 NY3d 403, 411 [2008]).

We certainly do not condone the conduct of trial counsel. But the trial court characterized defense counsel’s advocacy as “meaningful” and “zealous[] and effective[]” notwithstanding the incident that led to the removal of the juror within earshot of the disparaging comments about the defendant. The juror was dismissed with the consent of all parties, and no other jurors heard the remarks. The defendant has produced no evidence suggesting the business conflict had anything to do with the removal of the juror, or that it otherwise operated on his defense.

Nor is the conflict here akin to that in People v Shinkle (51 NY2d 417 [1980]). There, the defendant’s attorney left his position with the Legal Aid Society in the months preceding the defendant’s trial and joined the District Attorney’s office in a senior leadership position (id. at 420). We held that the resulting “unmistakable appearance of impropriety” and “continuing opportunity for abuse of confidences” was significant enough to disqualify the entire District Attorney’s office from handling the prosecution (id.). Indeed, this Court noted that the attorney had extensively interviewed the defendant, “was intimately familiar with the contents of his file[,] and assisted in the formulation of defense strategy” (id. at 419). The circumstances here are different. The prosecutor here never represented the defendant, and the record indicates that defense counsel did not share information or confidences with the prosecutor regarding the defendant. The defendant’s reliance on People v Wandell is similarly misplaced (75 NY2d 951 [1990] [Mem]). We limited our holding to the unique circumstances presented there: the concurrent representation of a defendant and the People’s chief witness against him, following a reversal in a prior case for a similar omission by the same attorney (see id. at 952).

Juror removal

During trial, defense counsel reported an incident to the trial court that ultimately resulted in dismissal of a juror. Counsel explained that a juror had been present during a “boisterous” and “inflammatory” conversation in the courthouse lobby. She admitted to the court that she had made “derogatory comments” about her client. The parties agreed to strike the juror.

In post-conviction proceedings, counsel asserted that she was present for but had not participated in the conversation.

RIVERA, J. dissented on the failure to sever counts

Defendant was convicted of two unrelated murders, which occurred years apart, by different methods. There were no eyewitnesses to either death and no forensic evidence linked defendant to the crimes. The bodies were found in different locations. The common denominator was that defendant knew both victims: one was his roommate and the other, a female acquaintance. Defendant maintained his innocence and contended that one of the deaths was caused by an accidental fire. Nevertheless, the murders and the related evidence-tampering charges were joined in a single indictment. Eventually, they were tried before the same jury, over defendant’s request for separate trials to avoid inevitable prejudice to his defense. Joinder of these counts rested solely on the ground that they “are defined by the same or similar statutory provisions” (CPL 200.20 [2] [c]).

Failing to sever the trials carried significant risks that the jury would determine guilt based on the appearance of defendant’s criminal disposition and that the evidence of guilt on one of the murder counts would spill over and bolster the evidence of the other. The court’s instructions and counsel’s advocacy could not overcome this prejudice to the defense. Therefore, the trial court abused its discretion by denying severance. On that ground, I would reverse defendant’s convictions and order separate trials on each of the respective murder and related counts.

(Mike Frisch)