77 A.D.2d 571 | N.Y. App. Div. | 1980
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered November 20, 1979, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. Case remitted to the Criminal Term to hear and report on whether the dual representation that occurred in this case impaired the right of this defendant to the effective assistance of counsel, and appeal held in abeyance in the interim. We are of the opinion that the affidavit by the "related” defendant De Hoyos, in which he alleges that he could exculpate this defendant, is, by itself, insufficient to establish a conflict of interest or the significant possibility thereof (see People v Macerola, 47 NY2d 257, 262). However, in light of the trial court’s failure to make the required inquiry (see People v Gomberg, 38 NY2d 307), and the fact that on the record before us we cannot say that there was not a significant possibility of a conflict of interest, a hearing is necessary to determine whether the representation that occurred in this case impaired the right of this defendant to the effective assistance of counsel (cf. People v Rivera, 62 AD2d 767). Lazer, J. P., Gibbons, Martuscello and O’Connor, JJ., concur.