People v. Joy

• Decision Date: 26 November 1980
• Citation: 78 A.D.2d 951,433 N.Y.S.2d 522
• Parties: The PEOPLE of the State of New York, Respondent, v. Patrick JOY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 522

433 N.Y.S.2d 522

78 A.D.2d 951

The PEOPLE of the State of New York, Respondent, v. Patrick JOY, Appellant.

Supreme Court, Appellate Division, Third Department.

Nov. 26, 1980.

Patrick J. Joyce, Sherburne, for appellant.

Kevin M. Dowd, Chenango County Dist. Atty., Norwich, for respondent.

Before SWEENEY, J. P., and MAIN, MIKOLL, CASEY and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Chenango County, rendered October 22, 1979, convicting defendant upon his plea of guilty of the crime of possession of a forged instrument in the second degree.

On January 3, 1978, defendant was indicted for criminal possession of a forged instrument in the second degree and criminal possession of a forged instrument in the third degree. Prior to trial, defendant left the state and was not apprehended until July, 1979. In the interim, he was indicted for bail jumping in the first degree. On his return to this state, the court appointed an attorney to represent him. Thereafter, defendant entered a plea of guilty to the first count in the January 3, 1978 indictment. The second count of that indictment and the indictment charging bail jumping were dismissed. Subsequently, the court refused to permit defendant to withdraw his guilty plea. Pursuant to a plea bargain agreement, defendant, as a second felony offender, received the minimum sentence of two to four years.

On this appeal, defendant urges reversal on two grounds. He contends that there was a conflict of interest between him and the assistant district attorney who prosecuted the case. He also contends that he was inadequately represented by assigned counsel. The basis of defendant's first contention is that prior to the instant indictment both the District Attorney and one of his assistants had represented defendant in prior criminal matters. The assistant represented him in the matter resulting in a conviction that formed the basis of defendant being sentenced as a second felony offender. He is not the assistant who prosecuted the present indictment. We are of the opinion that the circumstances do not require a reversal (cf. People v. Shinkle, 73 A.D.2d 764, 423 N.Y.S.2d 549; People v. Washington, 52 A.D.2d 984, 383 N.Y.S.2d 422). Initially, we note that no motion was made to disqualify the assistant nor was there any contention made prior to this appeal that there was a conflict of interest. Neither of the matters in which the District Attorney or his assistant...