People v. Burnette

• Decision Date: 21 February 1986
• Citation: 117 A.D.2d 987,499 N.Y.S.2d 288
• Parties: PEOPLE of the State of New York, Respondent, v. Frank BURNETTE, a/k/a Clifford Boone, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 288

499 N.Y.S.2d 288

117 A.D.2d 987

PEOPLE of the State of New York, Respondent, v. Frank BURNETTE, a/k/a Clifford Boone, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 21, 1986.

Rose H. Sconiers by Carolyn Balowitz, Buffalo, for appellant.

Richard J. Arcara by Lisa Rodwin, Buffalo, for respondent.

Before DILLON, P.J., and CALLAHAN, DENMAN, PINE and SCHNEPP, JJ.

MEMORANDUM:

Defendant and a codefendant were jointly charged with aiding and abetting each other in the commission of a residential burglary (Penal Law §§ 140.25[2]; 20.00). During a period of approximately three months following their arraignment, both defendants were jointly represented by the same retained counsel. When counsel finally concluded that he could no longer represent both defendants, the court assigned him to represent defendant and assigned separate counsel to represent the codefendant. The codefendant's case was severed on motion of his new counsel. At trial, represented by counsel who formerly represented both, defendant was convicted of burglary in the second degree and petit larceny. Following this conviction, the codefendant entered a guilty plea. At codefendant's sentencing, he advised the court that defendant had nothing to do with the burglary, that defendant was only an innocent bystander who had accompanied him to pick up a female acquaintence and was unaware that codefendant intended to commit a crime. Defendant's counsel thereupon moved to set aside the verdict based upon newly discovered evidence (see CPL 330.30[3] ). The trial court, without conducting any hearing, denied defendant's motion on the basis that this information could have been developed before trial. On appeal, defendant claims that he was deprived of the effective assistance of counsel as a result of his attorney's prior representation of the codefendant.

This is not a case of multiple representation of codefendants at the same trial, which would require a determination of defendant's rights in accordance with the principles applicable in such cases (see, e.g., People v. Macerola, 47 N.Y.2d 257, 417 N.Y.S.2d 908, 391 N.E.2d 990; People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 769). Nevertheless, a conflict of interest from an attorney's successive representation of multiple defendants may be the predicate for a finding of ineffective assistance of counsel where the defendants are not tried together. The critical issue is whether the conflict of interest did in fact affect the manner in which the attorney conducted the defendant's defense at trial (People v. Alicea, 61 N.Y.2d 23, 30, 471 N.Y.S.2d 68, 459 N.E.2d 177). Here, in the absence of any hearing, we are unable to determine this issue and accordingly, we must reserve decision and remit for a hearing.

The potential for prejudice inherent in joint representation also is illustrated by defendant's claims that the court erred in denying his motion to set aside the verdict based upon newly discovered evidence as a result of the codefendant's exculpatory remarks at his sentencing. The power to set aside a verdict on the ground of newly discovered evidence is statutory (CPL 330.30[3]; People v. Salemi, 309 N.Y. 208, 215, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827; People v. Suarez, 98 A.D.2d 678, 469 N.Y.S.3d 752). Under the statute, "newly discovered evidence" (1) must be such as will probably (not merely possibly ) change the result if a new trial is granted; (2) must have been...