People v. English
| Decision Date | 30 May 1995 |
| Citation | 627 N.Y.S.2d 721,215 A.D.2d 774 |
| Parties | The PEOPLE, etc., Respondent, v. Troy ENGLISH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Malvina Nathanson, New York City, for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie and Shulamit Rosenblum, of counsel), for respondent.
Before BALLETTA, J.P., and O'BRIEN, THOMPSON and ALTMAN, JJ.
MEMORANDUM BY THE COURT.
Appeals by the defendant (1) from a judgment of the Supreme Court, Kings County (Hall, J.), rendered September 10, 1992, convicting him of robbery in the first degree (three counts), upon a jury verdict, and imposing sentence and (2) by permission, from an order of the same court, dated June 24, 1994, which denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.
ORDERED that the judgment and order are affirmed.
The defendant contends that error took place during the prosecutor's cross examination of him and during the testimony of one of the complainants regarding her religious faith. We find that these contentions are unpreserved for appellate review (see, CPL 470.05[2], without merit, or harmless in light of the overwhelming evidence of the defendant's guilt (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).
The defendant's contention that the probation report was incomplete is without merit (see, People v. Greene, 209 A.D.2d 541, 619 N.Y.S.2d 74 [2d Dept., Nov. 14, 1994]; People v. Marin, 157 A.D.2d 804, 550 N.Y.S.2d 407). Moreover, the sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant moved pursuant to CPL 440.10 to vacate his conviction because the attorney who initially represented him was subsequently hired by the Kings County District Attorney. The attorney withdrew from the defendant's case during the pretrial proceedings and remained employed by the District Attorney during the defendant's trial approximately seven months later. The trial court properly denied the defendant's motion on the ground that he failed to demonstrate actual prejudice (see, CPL 440.10[1][f]; see generally, People v. Keeton, 74 N.Y.2d 903, 904, 549 N.Y.S.2d 647, 548 N.E.2d 1298; Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522; cf., People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909). The defendant failed to controvert the information in the affidavits presented by the People which established that his former attorney was not assigned to the bureau prosecuting the instant indictment. In addition, the prosecutor assigned to the defendant's trial stated that he had no conversations with the former defense counsel regarding the charges against the defendant.
ALTMAN, J., dissents and votes to reverse the judgment and order, and to order a new trial, with the following memorandum:
An impermissible conflict of interest was created when the attorney who represented the defendant for approximately six months, making court appearances and an omnibus motion on his behalf, subsequently joined the District Attorney's office where he remained throughout the prosecution (see, People v. Jackson, 60 N.Y.2d 848, 850, 470 N.Y.S.2d 136, 458 N.E.2d 377; People v. Shinkle, 51 N.Y.2d 417, 419, 434 N.Y.S.2d 918, 415 N.E.2d 909; Matter of Morgenthau v. Crane, 113 A.D.2d 20, 22, 495 N.Y.S.2d 164). Because of the procedural posture of this appeal, I disagree with the majority's conclusion that the defendant was required to demonstrate actual prejudice in order to prevail.
In People v. Shinkle (supra), the Court of Appeals adopted a per se disqualification rule for situations such as this, requiring reversal notwithstanding the defendant's failure to submit proof of actual prejudice. The court concluded that a defendant is "entitled to protection against the appearance of...
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