People v. Gordon

Decision Date09 May 2000
Citation709 N.Y.S.2d 503,272 A.D.2d 133
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>MICHAEL GORDON, Appellant.
CourtNew York Supreme Court — Appellate Division

Concur — Williams, J. P., Wallach, Lerner, Andrias and Saxe, JJ.

The verdict is not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility.

Although a defendant has the right to counsel of his choice, that right is not absolute (Wheat v United States, 486 US 153). The court properly exercised its discretion in disqualifying defendant's original counsel well before trial. This attorney had previously represented a witness who was scheduled to, and ultimately did, testify against defendant at trial, and whom the attorney had accompanied at an unrecorded interview with the prosecutor. The court properly concluded that continued representation of defendant by this attorney would create an actual conflict of interest as well as a likelihood of violating the "advocate-witness" and "unsworn witness" rules (see, People v Paperno, 54 NY2d 294), and that waiver of conflict-free representation would not cure these defects (Wheat v United States, supra; United States v Locascio, 6 F3d 924, 931-935, cert denied 511 US 1070).

The court's rulings on evidentiary issues were proper exercises of discretion.

The court's disposition of defendant's CPL 440.10 motion was proper. The court properly applied People v Machado (90 NY2d 187) and its finding that defendant was not prejudiced by the Rosario violation is supported by the record. The issue of lack of prejudice was preserved by the People and ruled upon by the court (see, CPL 470.05 [2]; compare, People v Chavis, 91 NY2d 500, 506). However, defendant's challenge to the timeliness of the People's reargument motion is unpreserved and we decline to review it in the interest of justice.

We perceive no abuse of sentencing discretion.

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7 cases
  • People v. Waite
    • United States
    • New York Supreme Court — Appellate Division
    • 1 December 2016
    ...at 625–626, 26 N.Y.S.3d 504, 46 N.E.3d 1057 ; People v. Carncross, 14 N.Y.3d at 330, 901 N.Y.S.2d 112, 927 N.E.2d 532 ; People v. Gordon, 272 A.D.2d 133, 134, 709 N.Y.S.2d 503 [2000], lv. denied 95 N.Y.2d 890, 715 N.Y.S.2d 382, 738 N.E.2d 786 [2000] ; see also People v. Hall, 46 N.Y.2d 873,......
  • People v. Robinson
    • United States
    • New York Supreme Court — Appellate Division
    • 16 October 2014
    ...873, 874–875, 414 N.Y.S.2d 678, 387 N.E.2d 610 [1979], cert. denied 444 U.S. 848, 100 S.Ct. 97, 62 L.Ed.2d 63 [1979]; People v. Gordon, 272 A.D.2d 133, 134, 709 N.Y.S.2d 503 [2000], lv. denied 95 N.Y.2d 890, 715 N.Y.S.2d 382, 738 N.E.2d 786 [2000] ). Faced with “the dilemma of having to cho......
  • People v. Robinson
    • United States
    • New York Supreme Court — Appellate Division
    • 16 October 2014
    ...873, 874–875, 414 N.Y.S.2d 678, 387 N.E.2d 610 [1979], cert. denied 444 U.S. 848, 100 S.Ct. 97, 62 L.Ed.2d 63 [1979] ; People v. Gordon, 272 A.D.2d 133, 134, 709 N.Y.S.2d 503 [2000], lv. denied 95 N.Y.2d 890, 715 N.Y.S.2d 382, 738 N.E.2d 786 [2000] ). Faced with “the dilemma of having to ch......
  • People v. Urie
    • United States
    • New York City Court
    • 22 February 2012
    ...defendant, and defendant still desired her representation, is baseless. The right to counsel of choice is not absolute (People v. Gordon, 272 A.D.2d 133 (2000) (citing Wheat v. United States, 486 U.S. 153 (1988). The client is not the one to determine whether his attorney can continue repre......
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