People v. Sutton

Oct 31, 1995
Versions:220 A.D.2d 351
633 N.Y.S.2d 122
1995 N.Y. App. Div. LEXIS 10777

—Judgments, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered October 30, 1991, convicting defendant, after a jury trial, of conspiracy in the second degree, and sentencing him to a term of 81/3 to 25 years, and November 14, 1991, convicting him of violation of probation, and sentencing him to a consecutive term of l1/s to 4 years, unanimously affirmed.

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 NY2d 307). However, in view of the witness’s cooperation agreement with the prosecution (People v Lombardo, 61 NY2d 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 NY2d 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 *352continued 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 NY2d 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.