68 N.Y.2d 1 | NY | 1986
OPINION OF THE COURT
An attorney’s concurrent representation of both a defendant charged with arson and the corporation whose building he is alleged to have damaged and whose corporate officer gives testimony tending to prove his guilt involves a conflict of interest which, absent inquiry by the court and the informed consent of the defendant, deprives the defendant of the effective assistance of counsel. The order of the Appellate Division should, therefore, be reversed and a new trial ordered.
I
Defendant, James McDonald, was indicted on charges of arson in the third degree for setting fire to a shed belonging to the Lyell Exchange Lumber Company (the company) in Rochester, New York. Throughout the pretrial and trial proceedings before the Monroe County Court, defendant was represented by retained counsel, Werner Lomker.
In an omnibus motion under CPL 210.30, Lomker sought to inspect the Grand Jury minutes; to dismiss the indictment as
At the Wade hearing, the People produced evidence that defendant was seen by Officer Baez at about 2:00 a.m. from a distance of about 30 feet; that the area was lit by three street lamps; that Baez saw defendant walk briefly up and down the sidewalk adjacent to the lumberyard and then entered the yard, encircle a building and crouch alongside the corner of a shed from where flames then appeared; that defendant then ran in a northerly direction from the lumberyard; that Baez broadcast a description of him as a white male, with shoulder-length hair wearing dark pants and a white shirt; and that within 15 minutes of her broadcast, he was apprehended and returned in a marked patrol car to the scene of the fire, and there was identified by Baez as the perpetrator. Defense counsel cross-examined the two arresting officers and Baez as well, questioning her about the distance between her and defendant and about the lighting conditions, but never asked whether she knew of defendant’s arrest before she identified him at the crime scene.
At trial the People presented the same evidence, plus the testimony of fire experts and of Dean Lazzaro, the secretary-treasurer of the company. The experts ruled out possible accidental causes of the fire and stated that the fire — which was quickly extinguished — had caused charring to the building’s clapboards at two separate locations. In their opinion, the charring, along with incidental damage caused by the efforts of fire fighters in pulling some boards away from the foundation, plus the company’s failure to repair the shed in the eight months since the fire, had diminished the value of the shed. Although Lazzaro acknowledged at the beginning of the prosecutor’s questioning that defense counsel "represents [our] company,” the Trial Judge made no effort to ascertain whether defendant was aware of that fact or whether he understood the risks involved in counsel’s representing both defendant and the company. Lazzaro’s testimony concerning the condition of the building after the fire was consistent with Michael Lazzaro’s pretrial affidavit, but he testified further that although defendant had been a lifelong family friend and a long-time employee of the company, he had quit his job about seven weeks before the fire, at a time when defendant and the company "were not on good terms because we had had some prior problems inside our establishment.” He identified those problems as including "theft and what have you” and stated that had defendant not resigned, he would have been fired.
Defense counsel began his cross-examination by acknowledging that "[i]t is very uncomfortable to call you Mr. Lazzaro”, and thereafter referred to the witness as "Dean.” His cross-examination focused on the lack of damage to the shed, but made no reference to defendant’s relationship with the company. The sole witness for the defense was an investigator, through whom defense counsel sought to impeach Officer Baez’s testimony by showing that the distance between her and defendant when she observed him apparently setting the fire was substantially greater than she had testified it was.
In summation the prosecutor argued that defendant had set the fire as "his way of getting back at the [company]” for his having had to resign "under a cloud for one reason or another.” The jury returned a verdict of guilty of arson in the third degree (Penal Law § 150.10 [1]), but on defense counsel’s
On appeal from the judgment of conviction, defendant was represented by the Monroe County Public Defender, who argued that defendant had been denied the effective assistance of trial counsel. The Appellate Division disagreed, holding that neither a conflict of interest nor the significant possibility thereof was demonstrated "merely by showing that defendant’s trial counsel also represented the lumber company” (115 AD2d 223, 224), that the fact that the company had made no claim for repair to the shed showed that the company’s interests did not conflict with defendant’s, and that Dean Lazzaro "evidenced no hostility of any kind toward the defendant” (id.). On the People’s cross appeal from the order modifying the jury verdict, the Appellate Division held the People’s evidence of damage sufficient to sustain the jury verdict and, therefore, vacated the judgment of conviction, reversed the Trial Judge’s order, reinstated the jury verdict and remitted the matter to the Monroe County Court for resentencing.
Defendant appeals by leave of a Judge of this court. He argues that he is entitled to a new trial because counsel’s representation of both himself and the company constitutes, per se, a conflict of interest, and that he was, therefore, denied the effective assistance of counsel. He argues also that the Appellate Division erred in reinstating the jury verdict because the People had no authority under CPL 450.20 (3) to cross-appeal to that court from the order modifying the jury verdict and because the evidence was legally insufficient to present a jury question concerning whether defendant had "intentionally damage[d]” the building within the meaning of Penal Law § 150.10 (1). We conclude (1) that the Appellate Division had jurisdiction under CPL 450.20 (3) of the People’s cross appeal, (2) that the evidence of damage to the shed was legally sufficient to sustain defendant’s conviction of arson in the third degree, but (3) that under the circumstances of this case defense counsel’s concurrent representation of defendant
II
A defendant is denied the right to effective assistance of counsel guaranteed by the Sixth Amendment when, absent inquiry by the court and the informed consent of defendant, defense counsel represents interests which are actually in conflict with those of defendant (People v Mattison, 67 NY2d 462, 469-470; People v Lombardo, 61 NY2d 97, 102-103; People v Macerola, 47 NY2d 257, 264-265; People v Gomberg, 38 NY2d 307, 313-314; People v Wilkins, 28 NY2d 53, 55). Initially it is defense counsel’s burden to recognize the existence of a potential conflict of interest, to alert both the client and the court to the potential risks involved, and to obtain the client’s informed consent to counsel’s continued representation despite those risks (People v Lloyd, 51 NY2d 107, 111; People v Gomberg, 38 NY2d, at pp 313-314, supra; see, Code of Professional Responsibility EC 5-16, 5-19; DR 5-105 [C]; ABA Standards for Criminal Justice, Defense Function § 3.5 [a] [1971]). But the prosecutor is also obliged to alert the court when he or she possesses knowledge of facts from which apparent conflict can be inferred (People v Mattison, 67 NY2d, at p 469, supra), and the Trial Judge owes a duty independent of counsel " 'to protect the right of an accused to effective assistance of counsel’ ” (People v Mattison, 67 NY2d, at p 468, supra). And once so informed, or aware of facts from which it appears that conflicting interests arguably exist, the Trial Judge must conduct a record inquiry of each defendant whose representation is potentially conflict-ridden in order to ascertain whether he or she "has an awareness of the potential risks involved in that course and has knowingly chosen it” (People v Gomberg, 38 NY2d 307, 313-314, supra; People v Macerola, 47 NY2d 257, 263, supra). Thus, in Gomberg, we held that defense counsel’s joint representation of codefendants in a criminal prosecution created such a potential conflict of interest, and more recently, in People v Lombardo (61 NY2d 97, 102, supra) we recognize the potential for conflict in defense counsel’s representation of a defendant accused of a usurious loan scheme when he had previously represented the
Here, although the victim’s corporate officer, Dean Lazzaro, was not the People’s chief witness — a characterization more descriptive of Officer Baez — he nonetheless provided important evidence of defendant’s motive in setting fire to the company’s shed. Thus, as the People concede, when Lazzaro disclosed the fact that defense counsel represented his company, the Trial Judge should have perceived the arguable existence of conflicting loyalties on the part of defense counsel and conducted a Gomberg inquiry.
Though the Trial Judge erred in failing to do so, that error mandates reversal only if defendant has demonstrated that " 'a conflict of interest, or at least the significant possibility thereof, did exist’ ” (People v Lombardo, 61 NY2d, at p 103, supra; People v Macerola, 47 NY2d, at p 264, supra). The conflict must, however, be one which bears a substantial relation to "the conduct of the defense” (People v Lombardo, 61 NY2d, at p 103, supra). In Lombardo, for example, although a potential for conflict existed because defense counsel owed a continuing duty to protect the confidences of his former client — the victim who testified as the prosecution’s chief witness — we held, nonetheless, that counsel, having concluded that the victim’s cooperation with the prosecution amounted to a waiver of the attorney-client privilege, had "eliminated any significant possibility that the conduct of the defense would be affected by the attorney’s prior representation of [the victim/witness], and scrutiny of the attorney’s searching cross-examination of [the victim/witness] on defendant’s trial confirms that the attorney conducted the defense on the operational premise that he no longer owed any professional obligation to [the victim/witness]” (id., at p 103; see also, Olshen v McMann, 378 F2d 993, 994, cert denied 389 US 874, reh denied 389 US 964).
We cannot, however, reach that same conclusion on the present record, for it clearly demonstrates that defense counsel Lomker labored under an actual conflict in his representation of both defendant and the company. Initially, we note that the potential for conflict is far greater here, counsel’s representation of the accused and the victim being concurrent, than in Lombardo, where counsel had terminated his representation of the victim before the trial of the accused (see, People v Wilkins, 28 NY2d, at p 56, supra; but see, United
But perhaps the most pervasive source of conflict remains the victim (see, Castillo v Estelle, 504 F2d 1243, 1245; Unites States ex rel. Miller v Myers, 253 F Supp, at p 57, supra; People v Stoval, 40 Ill 2d 109, 112-113, 239 NE2d 441, 443; see
The People argue, nonetheless, that under the particular circumstances of this case, defendant has demonstrated neither an actual conflict nor the significant possibility of conflict. They point to the fact that the company disclaimed any economic interest in the outcome of the trial, providing both a pretrial affidavit in support of defendant’s motion to dismiss the indictment and trial testimony asserting that the shed had not been damaged and that no insurance claims had been filed. Thus, they suggest, Dean Lazzaro having testified favorably to defendant on the damage issue, counsel had no interest in attempting to impeach his credibility.
Although we decline to adopt the per se approach urged upon us by defendant,
Ill
There remain for consideration defendant’s challenge to the legal sufficiency of the evidence to sustain the jury’s verdict and to the jurisdiction of the Appellate Division to hear and determine the People’s cross appeal from the order of the Trial Judge modifying the jury verdict.
The Appellate Division did not err in holding the evidence sufficient to present a jury question with respect to damage within the meaning of Penal Law § 150.10 (l).
We also reject defendant’s challenge to the jurisdiction of the Appellate Division.
Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.
Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.
Order reversed, etc.
. The theory of counsel’s accompanying memorandum of law was that because Penal Law § 150.10 (1) required proof that defendant "intentionally damage[d]” the shed, he could not be convicted of arson in the third degree unless there had been a diminution in the value of the shed.
. Earlier, in response to questioning by the court, Officer Nicholas Bianchi stated that he informed the police dispatcher, by radio, that he had apprehended defendant and was transporting him back to the lumberyard and that Baez, who carried a portable radio, could have heard the broadcast before she identified defendant.
. Cf. Wood v Georgia (450 US 261 [defendant’s legal fees paid by his employer]); Judd, Conflicts of Interest — A Trial Judge’s Notes, 44 Fordham L Rev 1097, 1099-1102; Code of Professional Responsibility EC 5-1, 5-21, 5-22; DR 5-101 (A); 5-107 (A).
. As is evident from our citation in People v Wilkins (28 NY2d 53, 56) of the Myers and Stoval rulings, we have long recognized the dangers inherent in an attorney’s cross-examination of his or her client. That no conflict was found in Wilkins, although the Legal Aid Society represented both the defendant and the complaining witness, resulted from the unique organization of the Society’s legal staff.
. Defendant would have us rule that there is always a conflict when the same attorney represents both the accused and the victim. Our rejection of such a per se rule does not mean that defendant must specifically demonstrate prejudice, however, in order to obtain a reversal. It will be sufficient, absent the required inquiry and consent, that a substantial possibility of prejudice existed. We underscore the distinction between conflict and prejudice, however, because there is confusion in this regard in some of the cases on which defendant relies to support a per se rule. Thus, in People v Coslet (67 111 2d 127, 133, 364 NE2d 67, 70), the Illinois Supreme Court described People v Stoval (40 111 2d 109, 239 NE2d 441), relied on by defendant as making unnecessary allegation or proof of prejudice when an actual conflict is shown, and made a like ruling in People v Berland (74 111 2d 286, 385 NE2d 649). Similarly, Zurita v United States (410 F2d 477) merely ordered a
. In light of that conclusion, we need not consider the effect of the company’s disclaimer of any economic interest in the outcome of the criminal prosecution, nor the inference to be drawn from defense counsel’s unanticipated concession, made at the close of the Wade hearing, that Officer Baez’s right to identify defendant at trial would be unrestricted (see, Holloway v Arkansas, 435 US 475, 489-490; and Geer, Representation of Multiple Criminal Defendants: Conflicts of Interests and the Professional Responsibilities of the Defense Attorney, 62 Minn L Rev 119, 128, 136 [discussing defenses "lost” by reason of divided loyalties]).
. We must, of course, reach these issues, for if defendant is correct in asserting that the evidence was legally insufficient to convict him of arson in the third degree, either because the Trial Judge’s determination to. that effect is not appealable by the People or because, though appealable, the Appellate Division’s contrary determination is erroneous, the remedy would be not a new trial but an order dismissing the indictment with leave for the People to institute such proceedings as they deem appropriate respecting the lesser included attempt offense not charged in the indictment (see, People v Mayo, 48 NY2d 245, 253).
. The statute provides that "[a] person is guilty of arson in the third degree when he intentionally damages a building or motor vehicle by starting a fire or causing an explosion.”
. Because appealability goes to the subject matter jurisdiction of the court (see, e.g., People v Marra, 13 NY2d 18, 20, and cases there cited), which may be raised for the first time on appeal to this court (People v Ahmed, 66 NY2d 307, 310; People v Harper, 37 NY2d 96, 99), the fact that the defendant failed to move before the Appellate Division to dismiss the People’s appeal presents no obstacle to our consideration of the question.