source: Caselaw Access Project

author: Pigott, J. Chief Judge Lippman

license: Public Domain

text:
    [46 NE3d 1043, 26 NYS3d 490]
    The People of the State of New York, Respondent, v Luciano Rosario, Appellant. The People of the State of New York, Respondent, v Marcos Llibre, Appellant.
    Argued November 16, 2015;
    decided December 16, 2015

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City {Robin Nichinsky of counsel), for appellant in the first above-entitled, action.
    The Court should grant the petition for a writ of error coram nobis where defense counsel’s failure to inform appellant about his right to appeal or to file a notice of appeal on his behalf constituted ineffective assistance of counsel that resulted in the denial of his fundamental right to appeal. (US Const Amends VI, XTV; NY Const, art I, § 6.) (Roe v Flores-Ortega, 528 US 470; People v Syville, 15 NY3d 391; Evitts v Lucey, 469 US 387; People v Bachert, 69 NY2d 593; People v West, 100 NY2d 23; Campusano v United States, 442 F3d 770; Strickland v Washington, 466 US 668; People v Ca-ban, 5 NY3d 143; People v Settles, 46 NY2d 154; People v Pride, 3 NY2d 545.)

      Robert T. Johnson, District Attorney, Bronx {David P. Johnson, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent in the first above-entitled action.
    I. There should not be an exception to the statutory time period for taking an appeal unless defendants credibly show that they were unjustifiably deprived of the right to appeal. (People v Montgomery, 24 NY2d 130; People v Lynn, 28 NY2d 196; People v Ali, 35 AD2d 435; People v Corso, 40 NY2d 578; People v Thomas, 47 NY2d 37; People v Jackson, 78 NY2d 638; People v Perez, 23 NY3d 89; People v Syville, 15 NY3d 391; People v Andrews, 23 NY3d 605; Roe v Flores-Ortega, 528 US 470.) II. The coram nobis application was properly denied as unsubstantiated and meritless. (People v Nixon, 21 NY2d 338; People v Tyrell, 22 NY3d 359; Hanson v Phillips, 442 F3d 789; Will-bright v Smith, 745 F2d 779; Kercheval v United States, 274 US 220; People v Spitaleri, 9 NY2d 168; People v Lynn, 28 NY2d 196; People v Peque, 22 NY3d 168; People v Andrews, 23 NY3d 605; People v Oddo, 283 App Div 497.)

      Robert S. Dean, Center for Appellate Litigation, New York City {Robin Nichinsky of counsel), for appellant in the second above-entitled action.
    The Court should grant the petition for a writ of error coram nobis where defense counsel’s failure to inform appellant about his right to appeal or to file a notice of appeal on his behalf constituted ineffective assistance of counsel that resulted in the denial of his fundamental right to counsel. (US Const Amends V, VI, XIV; NY Const, art I, § 6.) (Roe v Flores-Ortega, 528 US 470; People v Syville, 15 NY3d 391; Evitts v Lucey, 469 US 387; People v Bachert, 69 NY2d 593; People v West, 100 NY2d 23; Jones v Barnes, 463 US 745; People v Pride, 3 NY2d 545; People v Crimmins, 36 NY2d 230; People v Montgomery, 24 NY2d 130; People v Ventura, 17 NY3d 675.)

      Cyrus R. Vance, Jr., District Attorney, New York City {Hope Korenstein and Patrick J. Hynes of counsel), for respondent in the second above-entitled action.
    The Appellate Division properly concluded that defendant did not factually show that his failure to appeal resulted from ineffective assistance of counsel. (People v Syville, 15 NY3d 391; People v Howard, 22 NY3d 388; People v Harrison, 57 NY2d 470; People v McRay, 51 NY2d 594; People v Ennis, 11 NY3d 403; People v Sanders, 25 NY3d 337; People v Andrews, 23 NY3d 605; People v Noriega, 34 Misc 3d 1242[A], 2012 NY Slip Op 50514[U]; People v Quing Lin Zeng, 33 Misc 3d 1213[A], 2011 NY Slip Op 51916[U]; People v Cristache, 29 Misc 3d 720.)
   OPINION OF THE COURT

Pigott, J.

In People v Syville (15 NY3d 391 [2010]), we held that a defendant who learns, after the expiration of the one-year grace period provided in CPL 460.30, that a notice of appeal was not timely filed on his behalf due to the ineffective assistance of his counsel may, under very limited circumstances, have recourse by way of a coram nobis application. Defendants in these appeals claim they are entitled to such relief. We disagree, and therefore affirm in both appeals.

People v Rosario

In 2008, Luciano Rosario was arrested and charged with various misdemeanor counts of stalking and harassment. A temporary order of protection was issued directing him to stay away from the complainant. Rosario violated that protection order and was charged with four counts of criminal contempt in the second degree.

He appeared with his counsel and was offered a plea to second-degree harassment and second-degree attempted criminal contempt with definite concurrent sentences, the greatest of which was 30 days. When Rosario indicated he did not understand all of the consequences resulting from the plea, the court declined to accept Rosario’s plea and adjourned the matter to a later date.

Several weeks later, Rosario again appeared with counsel and accepted the People’s offer and pleaded guilty. The court asked if Rosario waived “formal allocution, prosecution by information, and waive [d] the right to appeal,” to which counsel responded, Wes.” Rosario was immediately sentenced consistent with his plea. No notice of appeal was filed.

Nearly five years later, Rosario, through new counsel, filed this application for a writ of error coram nobis claiming that his plea counsel did not speak with him about his right to appeal. He claimed that had he been so informed, he would have exercised it. Specifically, he contends that he lost his job and is now subject to deportation due to his convictions, which he claimed rested on pleas that were not knowing, intelligent, and voluntary when made.

In addition to his own affidavit, Rosario submitted an affirmation from his current counsel who stated that Rosario’s former counsel, speaking through her organization’s counsel, had stated that she had no specific recollection of what transpired in the case. However, it was her general practice to advise clients about the right to appeal and to provide them a written statement to that effect. He argued that coram nobis relief should be granted due to counsel’s failure to advise him of his appeal rights and that he should be provided an opportunity to file a notice of appeal.

In opposition, the People argued that Rosario’s claim that his plea counsel did not apprise him of the right to appeal was unsupported and, in any event, Rosario had no viable issues to appeal. The People submitted a letter from U.S. Immigration and Customs Enforcement which revealed that a search of the Department’s records failed to show that Rosario had ever been in immigration proceedings. Further, the letter states that it did not appear that Rosario would be subject to deportation based on these criminal convictions. Furthermore, the People argued, Rosario failed to exercise due diligence with respect to any potential appellate claims.

The Appellate Division denied Rosario’s writ of error coram nobis without opinion (2014 NY Slip Op 66337 [U] [1st Dept 2014]). A Judge of this Court granted Rosario leave to appeal (24 NY3d 964 [2014]).

People v Llibre

In June 2006, Marcos Llibre was indicted on charges of criminal possession of a controlled substance in the third and fourth degrees and attempted criminal sale of a controlled substance in the third degree. In April 2007, Llibre accepted a plea to fourth-degree criminal possession of a controlled substance with a promise of five years’ probation.

At the plea proceeding, the court confirmed with Llibre that he discussed the case and the decision to plead guilty with counsel. The court informed Llibre of the rights that he was giving up by pleading guilty. The court also specifically asked Llibre whether he understood that he was waiving his right to appeal, to which Llibre answered in the affirmative. Llibre executed a written waiver of appeal and was sentenced as promised in the plea agreement.

In December 2013, some six years after his time to file a notice of appeal had expired, Llibre petitioned for a writ of error coram nobis. He alleged that counsel at his plea hearing was constitutionally ineffective because he had failed to advise him of his right to appeal, to ascertain if he wished to appeal, or to file a notice of appeal on his behalf. The Appellate Division denied Llibre’s writ of error coram nobis (2014 NY Slip Op 73663[U] [1st Dept 2014]). A Judge of this Court granted Llibre leave to appeal (24 NY3d 1121 [2014]).

Analysis

The procedure for taking an appeal from a judgment of conviction or sentence in a criminal matter is relatively straightforward. A defendant who wishes to take an appeal must generally do so within 30 days after imposition of sentence (see CPL 460.10 [1] [a]). CPL 460.30 allows an appellate court to grant an extension of time to file a notice of appeal if defendant makes a motion, with due diligence, after the 30 days has expired but in no event more than one year thereafter. “The one-year grace period is strictly enforced ‘since the time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them’ ” (People v Andrews, 23 NY3d 605, 611 [2014] [citation omitted]).

In People v Syville (15 NY3d 391 [2010]), this Court considered whether defendants may be afforded an opportunity to file a notice of appeal, even beyond the one year and 30 days permitted under the CPL. In Syville, the defendants had made timely requests to their attorneys to file a notice of appeal on their behalf but their attorneys failed to comply. We held that when an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant demonstrates that the omission could not reasonably have been discovered within the one-year period, the time limit imposed in CPL 460.30 should not categorically bar an appellate court from considering a coram nobis application to pursue an untimely appeal. Thus, coram nobis relief is not just another stop on a continuum of opportunities for a defendant to seek appellate relief. Rather, it is extraordinary relief only to be provided in “rare case[s]” when “a right to appeal was extinguished ‘due solely to the unconstitutionally deficient performance of counsel’ ” {Andrews, 23 NY3d at 611, citing People v Syville, 15 NY3d 391, 398 [2010]).

We recently considered the Syville rule in People v Andrews (23 NY3d 605 [2014]), where the defendant pleaded guilty to selling narcotics and executed a written waiver of his right to appeal in conjunction with an agreement that he enter a drug treatment program. He was sentenced to time served and released from custody that day. Andrews did not file a notice of appeal.

He later moved, beyond the one-year-and-30-day time period afforded under the CPL, for coram nobis relief under Syville, claiming that his lawyer had been ineffective for not filing a notice of appeal. We held that Andrews failed to establish that his attorney had been ineffective, finding that defendant made only “perfunctory claims” that he had asked his lawyer to file a timely notice of appeal and had not shown that it was impossible to discover the omission with reasonable diligence (id. at 615). Andrew’s former attorney stated that she had discussions regarding the possibility of an appeal with Andrews (as she did with every client) and he had decided not to pursue that route because he wanted to accept a sentence of time served and end his case (id.). We noted that those statements were consistent with Andrews’ execution of a written waiver of his right to appeal before the court, which “presumptively demonstrated a desire not to seek appellate review” (id., citing People v Parris, 4 NY3d 41, 50 [2004]).

The cases before us now do not resemble Syville ox Andrews. Significantly, neither defendant claims that he requested that his attorney file a notice of appeal and that his attorney failed to comply with that request. Rather, they claim that counsel did not advise them of the right to appeal and had defendants known about their right to appeal, they would have requested one. However, in both appeals, the only evidence proffered in support of the contention that defendants were not apprised of their appellate rights is self-serving affidavits. The records as a whole reveal that defendants knew about their right to appeal. Thus, to grant defendants relief here would be to broaden the Syville rule to apply to any case where a notice of appeal had not been filed within one year and 30 days of conviction. Such a rule would abrogate CPL 460.30. Simply put, defendants here failed to show that their attorneys were unconstitutionally ineffective and therefore they are not entitled to the relief they seek.

In Rosario, at the first court proceeding, plea counsel stated that she had discussed the “collateral consequences of a conviction” including “possible immigration and other consequences” with defendant, and that he wanted to dispose of the matter. The court adjourned the matter, which permitted Rosario additional time to consider the plea and the rights he would be forfeiting and to discuss those matters with his attorney. Some three weeks later, the court specifically asked plea counsel if Rosario waived his right to appeal, to which she answered affirmatively. Further, plea counsel stated that while she could not recall the specifics of Rosario’s case — understandably as it was some four years later — it was her routine to inform defendants of their appellate rights.

The record in Llibre is even more conclusive. Llibre acknowledged to the court at the plea proceeding that he understood that he was waiving his right to appeal. He also executed a written waiver before the court. Both the oral and written waivers in these cases are contrary to defendants’ claims that they were unaware of their right to appeal.

Nor did defendants make any showing that they took steps toward discovering the omission or explain why years passed before they sought coram nobis relief. In order to obtain exceptional relief beyond the time permitted under CPL 460.30, a defendant must show that he exercised due diligence. The records in both appeals support the conclusion that defendants had no intention of appealing, as both waited years before seeking relief. Their desire to quickly dispose of the matters at the time of their pleas is consistent with their highly favorable pleas; Rosario was sentenced to time served and released that same day and Llibre was sentenced to probation.

Under these circumstances, defendants failed to meet their burden on their coram nobis applications. Accordingly, the orders of the Appellate Division should be affirmed.

Chief Judge Lippman

(concurring in People v Llibre-, dissenting in People v Rosario). I agree with the majority that in People v Llibre the record conclusively demonstrates that defendant Llibre was advised of his right to appeal and waived that right both orally and in writing after stating that he discussed his right to appeal with defense counsel. The majority concedes that the record in People v Rosario is less clear, and because the record in Rosario does not show that defense counsel consulted with defendant regarding his right to appeal, when consultation was necessary, I would reverse and grant a hearing on Rosario’s petition.

As the United States Supreme Court held in Roe v Flores-Ortega,

“counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing” (528 US 470, 480 [2000]).

To “consult” means “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes” (id. at 478). The “better practice” in all cases is for defense counsel to consult with defendant (see id. at 479). In Flores-Ortega, defense counsel failed to file an appeal after the defendant specifically requested it (id. at 474) while the defendant’s file indicated that defense counsel consulted with the defendant regarding his right to appeal. The Supreme Court did not go so far as to hold that counsel must in all cases “file a notice of appeal” or “discuss the possibility of an appeal with the defendant” (id. at 478), but where the defendant may be interested in appealing, consultation is required.

The Rules of the Appellate Division and the ABA Standards for Criminal Justice reaffirm the consultation requirements laid out in Flores-Ortega. According to the rules promulgated by each Appellate Division, defense counsel must “immediately after the pronouncement of sentence” advise a defendant in writing of the right to appeal and the time limitations involved (see Rules of App Div, 1st Dept [22 NYCRR] § 606.5 [b] [1]; Rules of App Div, 2d Dept [22 NYCRR] § 671.3 [a], [b]; Rules of App Div, 3d Dept [22 NYCRR] § 821.2 [a]; Rules of App Div, 4th Dept [22 NYCRR] § 1022.11 [a]). Similarly, under the ABA Standards for Criminal Justice, defense counsel should explain the right to appeal, give his or her professional judgment on the merits of an appeal, and “explain to the client the advantages and disadvantages of an appeal”; “[t]he ultimate decision whether to appeal should be the client’s” (ABA Standards for Criminal Justice, standard 4-9.1: Preparing to Appeal [4th ed 2015]).

Where, as in Rosario, it is abundantly clear that defendant was confused about his rights at the first sentencing proceeding, it was incumbent upon defense counsel to ensure that defendant understood his right to appeal. The record provides no evidence that this conversation ever took place and defendant asserts that it did not. Defense counsel, with personal knowledge of the facts, did not submit an affidavit. The majority simply ignores the glaring omissions in the record and, for the sake of convenience, denies a hearing by characterizing defendant’s assertions as “self-serving,” and thus, in its view, worthless.

In People v Rosario: Order affirmed.

Opinion by Judge Pigott. Judges Abdus-Salaam, Stein and Fahey concur. Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs.

In People v Llibre: Order affirmed.

Opinion by Judge Pigott. Judges Abdus-Salaam, Stein and Fahey concur. Chief Judge Lippman concurs in a separate opinion in which Judge Rivera concurs.


author: Stein, J. Pigott, J.

text:
    [46 NE3d 1048, 26 NYS3d 495]
    The People of the State of New York, Respondent, v Mark Jurgins, Appellant.
    Argued October 22, 2015;
    decided December 17, 2015

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Lisa A. Packard of counsel), for appellant.
    Mark Jurgins’s second felony offender sentence is unlawful because the alleged out-of-state predicate is not a New York felony equivalent under the Penal Law. (People v Ramos, 19 NY3d 417; People v Muniz, 14: NY2d 464; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745; People v Gonzalez, 61 NY2d 586; People v Olah, 300 NY 96; People v Yusuf, 19 NY3d 314; Jackson v United States, 359 F2d 260; United States v Mathis, 963 F2d 399; People v Thomas, 36 NY2d 514; People v Samms, 95 NY2d 52.)

      Robert T Johnson, District Attorney, Bronx {Catherine M. Reno, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.
    I. Defendant was properly adjudicated a second felony offender, and his attorney provided effective assistance. (People v Yusuf, 19 NY3d 314; People v Gonzalez, 61 NY2d 586; People v Muniz, 74 NY2d 464; People v Olah, 300 NY 96; People ex rel. Goldman v Denno, 9 NY2d 138; People ex rel. Gold v Jackson, 5 NY2d 243; People v Yancy, 86 NY2d 239; People ex rel. Newman v Foster, 297 NY 27; Matter of Schwimmer, 8 Misc 2d 550; Foote v People, 56 NY 321.) II. Defendant’s claim that he was improperly adjudicated a second felony offender is procedurally barred. (People v Samms, 95 NY2d 52; People v Smith, 73 NY2d 961; People v Kelly, 65 AD3d 886; People v Fuller, 57 NY2d 152; People v Drummond, 40 NY2d 990; People

      v Nieves, 2 NY3d 310; People v Santiago, 22 NY3d 900; People v Lopez, 28 NY2d 148; People v Laureano, 87 NY2d 640; People v Fuller, 57 NY2d 152.)
   OPINION OF THE COURT

Stein, J.

Defendant contends that his prior Washington, D.C. conviction for attempt to commit robbery is not equivalent to any New York felony and, therefore, did not provide a proper basis for his second felony offender adjudication. Because we agree that defendant was erroneously sentenced as a predicate felon based on that conviction, we reverse and remit for further proceedings.

L

In satisfaction of a 12-count indictment, defendant pleaded guilty to the top count of robbery in the first degree. Pursuant to the plea offer, defendant’s guilty plea was in exchange for a promised sentence of 11 years in prison, plus five years of post-release supervision, assuming that defendant complied with certain conditions. The plea included treating defendant as a second felony offender. During the plea colloquy, the court clerk read a second felony information based on a 2000 Washington, D.C. conviction (the D.C. conviction) for attempt to commit robbery, and advised defendant that he could challenge it on two grounds: that he was not the person named, or that the conviction was unconstitutionally obtained. Defendant did not challenge the prior conviction on either of those grounds, and Supreme Court thereafter adjudicated him a second felony offender. At sentencing, the court found that defendant had violated a condition of the plea. In accordance with its earlier warning regarding such a violation, the court sentenced defendant to 25 years in prison, plus five years of postrelease supervision.

Defendant thereafter moved pursuant to CPL 440.20 to set aside his sentence on the grounds that he was denied the effective assistance of counsel at sentencing and was unlawfully sentenced as a second felony offender. In his motion, defendant asserted that he had agreed to the plea on the mistaken assumption that he was a second felony offender, as there was no discussion of how or whether the D.C. conviction was equivalent to a felony in New York. Supreme Court denied defendant’s motion. (34 Misc 3d 1217[A], 2012 NY Slip Op 50127[U] [2012].)

Upon defendant’s consolidated appeals from the judgment of conviction and the denial of his CPL 440.20 motion, the Appellate Division held that defendant’s argument that his predicate felony was not equivalent to a New York felony was unpreserved and, alternatively, without merit (107 AD3d 595 [1st Dept 2013]). The Court also rejected his argument alleging ineffective assistance of counsel. However, the Court found the sentence to be excessive and, therefore, modified the judgment in the interest of justice by reducing the prison term from 25 years to 15 years. A Judge of this Court granted defendant leave to appeal (23 NY3d 1021 [2014]).

IL

Contrary to the People’s contention, defendant did not waive his current argument as to the legality of his sentence. Waiver cannot be accomplished through silence (see People v Dickinson, 18 NY3d 835, 836 [2011]). Thus, defendant’s statements that he was not challenging the predicate felony information on the two grounds delineated by the court clerk did not constitute a waiver of other, unmentioned grounds. We, therefore, conclude that defendant did not affirmatively and knowingly relinquish his rights to challenge whether the foreign conviction qualified as a predicate felony and to be properly sentenced (see People v Samms, 95 NY2d 52, 55 [2000]; compare People v Ross, 7 NY3d 905, 906 [2006]).

Apart from the distinct question of waiver — which the dissent conflates with the issue of preservation — we also disagree, at least partially, with the People’s assertion that we cannot reach defendant’s challenge to the legality of the second felony offender determination because that challenge is unpreserved. This challenge reaches us in two separate ways in this consolidated appeal — defendant’s appeal is from both the judgment of conviction and from the denial of his subsequent motion to set aside the sentence pursuant to CPL 440.20. As for the direct appeal, we agree that defendant did not preserve his current argument because he failed to argue at or before sentencing that the D.C. conviction could not qualify as a predicate felony (see People v Smith, 73 NY2d 961, 962-963 [1989]; People v Parker, 121 AD3d 1190, 1190 [3d Dept 2014]).

However, defendant’s challenge to his sentence is preserved for our review insofar as it was raised in his CPL 440.20 motion. A CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as “unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20 [1]), and a determination of second felony offender status is an aspect of the sentence (see Penal Law § 70.06 [included in Penal Law article 70, addressing sentences of imprisonment]). One of the legal defects that can be challenged in a CPL 440.20 motion is an alleged error in sentencing a defendant as a second or third felony offender, including the decision to consider certain prior convictions as predicates. Raising the predicate felony sentencing issue in a CPL 440.20 motion serves the goals and purposes of the preservation rule by permitting the parties to present their arguments on the issue in the trial court, creating a record for appellate review, and allowing the trial court the first opportunity to correct any error. Thus, we may address defendant’s current challenge — that the sentence was illegal because the D.C. conviction did not render him a second felony offender — on the appeal of the denial of his CPL 440.20 motion to set aside the sentence.

On the merits, the only element of the second felony offender statute at issue is whether the D.C. conviction is the equivalent of a New York felony, a matter which the People bore the burden of establishing (see People v Yancy, 86 NY2d 239, 247 [1995]). As relevant here, a prior out-of-state conviction qualifies as a predicate felony conviction if it involved “an offense for which a sentence to a term of imprisonment in excess of one year . . . was authorized and is authorized in this state” (Penal Law § 70.06 [1] [b] [i]). Because New York authorizes a prison sentence of more than one year only for felonies, we must determine whether defendant’s foreign conviction is equivalent to a New York felony (see People v Ramos, 19 NY3d 417, 419 [2012]; People v Muniz, 74 NY2d 464, 467 [1989]; People v Gonzalez, 61 NY2d 586, 592 [1984]).

The general rule limits this inquiry “to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes” (Muniz, 74 NY2d at 467-468; see People v Yusuf, 19 NY3d 314, 321 [2012]). In this regard, courts generally should consider only the statutes defining the relevant crimes, and may not consider the allegations contained in the accusatory instrument underlying the foreign conviction (see People v Olah, 300 NY 96, 98 [1949]). However, under a narrow exception to the Olah rule, the underlying allegations must be considered when “the foreign statute under which the defendant was convicted renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors [or no crime] if committed in New York” (Muniz, 74 NY2d at 468; see Gonzalez, 61 NY2d at 590; People ex rel. Goldman v Denno, 9 NY2d 138, 140 [1961]; People ex rel. Gold v Jackson, 5 NY2d 243, 245-246 [1959]). In those circumstances, the allegations will be considered in an effort to “isolate and identify” the crime of which the defendant was accused, by establishing “which of those discrete, mutually exclusive acts formed the basis of the charged crime” (Muniz, 74 NY2d at 468-469). The analysis requires us to

“distinguish between the specific criminal acts required by a penal statute and the various ways in which the statutory crime may be committed. The former concerns the crime’s statutory elements and is relevant to the Penal Law § 70.06 (1) (b) (i) inquiry; the latter concerns the underlying facts and ... is not relevant to that inquiry” {id. at 471).

The D.C. statute underlying defendant’s prior conviction provides that, “[w]hoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery” (DC Code §§ 22-2801; see 22-2802 [attempt to commit robbery]). In New York, robbery is defined as “forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he [or she] uses or threatens the immediate use of physical force upon another person” to prevent resistance to the taking or to compel the owner to deliver up the property (Penal Law §§ 160.00; see 110.00 [defining attempt to commit a crime]).

The parties agree that a taking “by sudden or stealthy seizure or snatching” would not be considered a robbery or other felony in New York, inasmuch as it is akin to pickpocketing, or the crime of jostling, which is a misdemeanor in this state {see Penal Law § 165.25). However, the parties dispute whether the D.C. statute describes different ways to commit the crime of robbery or specific criminal acts that are required under the statute. We interpret the dependent clause between the first two commas in the D.C. statute as modifying the first phrase, “by force or violence.” That is, a taking “by force or violence” can be committed in several different ways, including “by sudden or stealthy seizure or snatching.” Our reading of the statute is consistent with that of the D.C. courts that have interpreted its language (see United States v Mathis, 963 F2d 399, 408 [DC Cir 1992] [noting that this same statute can be violated by pickpocketing]; Jackson v United States, 359 F2d 260, 262-263 [DC Cir 1966]; see also Williams v United States, 113 A3d 554, 560 [DC 2015]).

Thus, as relevant here, under the D.C. statute the taking can occur (1) by force or violence, or (2) by putting in fear. The force or violence element can be accomplished (1) against resistance, or (2) by sudden or stealthy seizure, or (3) by snatching (see Mathis, 963 F2d at 408). Stated another way, “the statute must be interpreted to include ‘stealthy seizure’ as a form of ‘force or violence’ ” {id.). The statutory language means that the crime can be committed in different ways, and the phrase “sudden or stealthy seizure or snatching” does not describe separate criminal acts required by the statute in addition to the use of “force or violence” (see Jackson, 359 F2d at 262-263). Consequently, we do not look at the underlying accusatory instrument to determine if the crime is equivalent to a New York felony (see Yusuf, 19 NY3d at 321). Because the statute, itself, indicates that a person can be convicted of the D.C. crime without committing an act that would qualify as a felony in New York (i.e., by pickpocketing), defendant’s D.C. conviction for attempt to commit robbery was not a proper basis for a predicate felony offender adjudication (see Ramos, 19 NY3d at 420).

The illegal determination that defendant is a second felony offender must, therefore, be vacated and the matter remitted for further proceedings pursuant to CPL 440.20. Upon remittal, the People may allege a different prior felony conviction — if one exists — as a basis for a predicate felony adjudication (see People v Marrero, 3 NY3d 762, 763 [2004]; People v Hunt, 162 AD2d 782, 783-784 [3d Dept 1990], affd 78 NY2d 932 [1991], cert denied 502 US 964 [1991]). Based on this determination, we need not reach defendant’s argument regarding ineffective assistance of counsel.

Accordingly, the order of the Appellate Division should be reversed, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

Pigott, J.

(dissenting). The majority’s decision today exempts defendant’s post-conviction motion from the same rules of preservation that bar his direct appeal. Because this distinction has no basis in law or in logic and runs afoul of our longstanding preservation jurisprudence, I dissent and would affirm the order of the Appellate Division.

As the majority correctly recognizes, a challenge to the equivalency of a foreign felony conviction must be preserved by timely objection in the sentencing court (see People v Smith, 73 NY2d 961, 962-963 [1989]). This is so because determining whether a particular out-of-state conviction is the equivalent of a New York felony may involve the production and examination of foreign accusatory instruments and, conceivably, the resolution of evidentiary disputes, all in the context of comparisons with the law of other jurisdictions (see People v Samms, 95 NY2d 52, 57 [2000]).

Timely objection is also required by statute. Section 400.21 of the Criminal Procedure Law governs the procedure to be used when the People seek an enhanced sentence based on a defendant’s prior conviction. It requires the People to provide the defendant with a predicate felony statement, setting forth the date and place of the prior conviction and alleging that the prior conviction is a valid “predicate” within the meaning of Penal Law § 70.06 (CPL 400.21 [2]). The court must provide the defendant an opportunity to object to or controvert the allegations in the People’s statement (CPL 400.21 [3]). Any “[u]ncontroverted allegations . . . shall be deemed to have been admitted” (id.).

The People complied with CPL 400.21 in this case by providing defendant with a predicate felony statement containing the date and place of his prior attempted robbery conviction. It clearly stated that his D.C. conviction for attempted robbery constituted “a predicate felony, as defined in [Penal Law § 70.06 (1) (b)].” The court explained to defendant that he had out-of-state convictions that would be the equivalent of felonies if they had occurred in New York, and the court asked if defendant understood that the convictions would be recognized as felonies. Defendant stated that he understood and that he still wished to plead guilty. Therefore, the allegations in the statement, including the allegation that defendant’s D.C. conviction is a valid predicate felony, were deemed admitted (see CPL 400.21 [3], [8]).

The fact that the court’s colloquy did not specifically address the D.C. conviction does not excuse defendant from his statutory obligation to object (see majority op at 611 n 1). We have previously held that the “statutory purposes for filing a predicate statement (CPL 400.21) [are] satisfied” when a defendant is provided “with reasonable notice and an opportunity to be heard” (People v Bouyea, 64 NY2d 1140, 1142 [1985]). Here, although he was given a copy of the predicate felony statement and admitted to the existence of the prior conviction, defendant “raised no challenge to the court’s consideration of the prior conviction” and “made no objection to being sentenced as a predicate felon” (id.). Therefore, defendant’s claim has been statutorily waived (see People v Hummel, 127 AD3d 1506, 1507 [3d Dept 2015] [rejecting defendant’s challenge to his second felony offender status based on the court’s failure to comply with CPL 400.21 (3) because defendant failed to object at sentencing and because “there was substantial compliance with CPL 400.21”]).

It is difficult to overstate how consistently the courts of this state have relied on CPL 400.21 and our holding in Smith to reject claims like the one defendant raises here. The Appellate Divisions uniformly find challenges to the equivalency of a foreign felony conviction unpreserved or waived where defendants fail to raise the issue at sentencing (see People v De Aga, 74 AD3d 552, 552 [1st Dept 2010] [finding defendant’s challenge to the equivalency of his foreign felony conviction unpreserved based on Smith but reaching the issue in the interest of justice]; People v Kelly, 65 AD3d 886, 887 [1st Dept 2009], lv denied 13 NY3d 860 [2009] [finding defendant’s claim unpreserved based on Smith]; People v Delston, 62 AD3d 1023, 1023 [2d Dept 2009], lv denied 13 NY3d 835 [2009] [citing to Smith]; People v Crippa, 245 AD2d 811, 812 [3d Dept 1997] [citing to CPL 400.21]; People v Gonzalez, 61 AD3d 1428, 1429 [4th Dept 2009] [citing to CPL 400.21]; see also Delston v New York, 2010 WL 3004591, *6-7, 2010 US Dist LEXIS 76701, *17-18 [ED NY 2010] [finding defendant’s claim that he was improperly sentenced as a second felony offender procedurally barred from habeas review because he failed to controvert the equivalency of the foreign conviction at sentencing]).

Notably, each of the defendants in the aforementioned cases raised his claim in a CPL 440.20 motion to set aside the sentence. Unlike the majority, those courts draw no distinction between a direct appeal and a post-conviction motion for purposes of preservation. And rightly so. Nothing in the Criminal Procedure Law or our decisions interpreting it allows us to review unpreserved claims simply because they are raised in a CPL 440.20 motion. Rather, the purpose of CPL 400.21 (3) and our contemporaneous-objection rule is to promote finality and prevent further litigation over belated claims like the one defendant raises here, which could have been resolved with a specific and timely objection (see CPL 470.05 [2]; People v Lopez, 71 NY2d 662, 665 [1988]). The majority’s decision today burdens appellate courts with an issue that can and should be litigated in the first instance. In the process, it has allowed this defendant to achieve an end-run around our preservation rules that I suspect future litigants will repeat.

Although I would not reach the merits of defendant’s unpreserved claim, since the majority has, I will express my disagreement on that front as well.

The majority holds that the courts below erred in looking beyond the elements of the D.C. and New York robbery statutes because District of Columbia Code § 22-2801 does not criminalize different acts of robbery but merely different ways of committing a robbery, one of which would not be a felony if committed in New York (majority op at 614). This is a hyper-technical reading of the D.C. statute and of our decisions regarding the equivalency of foreign felony convictions.

As originally conceived, the Olah rule (see majority op at 613) did not require courts to abstain altogether from considering the factual allegations of a charge. It merely acknowledged that indictments often contain nonessential facts that go beyond what the statute requires (see People v Olah, 300 NY 96, 101 [1949]). And if we considered only the indictment in determining whether a defendant was convicted of a crime in another jurisdiction that would be a felony if committed in New York, we would run the danger of extending or enlarging the crime of which he was actually convicted (id.).

The facts in Olah provide the perfect example. The defendant in that case was accused of having stolen a wallet, in New Jersey, that contained $200. Although it was a felony in New York to steal more than $100, the defendant in Olah pleaded guilty to a New Jersey offense that made it a crime to steal $20 or more. By looking at the facts of the indictment rather than the statutory elements, the lower court said that defendant’s New Jersey conviction was equivalent to a felony in New York because, as the indictment alleged, he stole more than $100. We reversed, stating it did not matter whether the defendant in fact stole more than $100, because he pleaded guilty only to stealing $20 (id. at 100). Similarly, if the defendant had gone to trial in New Jersey and been found “guilty,” the verdict would have reflected only that he stole money that amounted to at least $20 because the prosecution never would have had to prove beyond a reasonable doubt that defendant stole more than $100, as New York requires.

Thus, the “intent and spirit of the Olah rule require that the courts of New York abstain from considering the surplusage contained in the indictment or information” (People ex rel. Gold v Jackson, 5 NY2d 243, 245 [1959] [emphasis added]; see also People v Muniz, 74 NY2d 464, 470 [1989] [finding it improper to look to the factual allegations in an accusatory instrument only where the controversy does not turn upon them]). It does not prohibit us from considering the accusatory instrument in order to clarify or identify the particular crime of which defendant was convicted (People v Gonzalez, 61 NY2d 586, 591 [1984]; Muniz, 74 NY2d at 468).

A practical reading of the D.C. statute at issue shows that it criminalizes multiple acts, all of which would be felonies in New York (acts of violence and force and by putting in fear) except one, which would be a misdemeanor (taking property by sudden or stealthy seizure or snatching) (see DC Code § 22-2801). In order to ascertain the particular crime of which defendant was convicted, it was appropriate for the courts below to consider the facts alleged in the accusatory instrument. When they did, it became clear that defendant was convicted of attempted robbery for using force or violence against resistance and for putting the victim in fear, both of which would be felonies if committed in New York. If the opposite had been true — if defendant indeed had been a pickpocket — those facts too could be considered by the sentencing court and the predicate felony statement rejected. Thus, the importance of preservation.

Chief Judge Lippman and Judges Rivera, Abdus-Salaam and Fahey concur; Judge Pigott dissents and votes to affirm in an opinion.

Order reversed and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein.

      . The dissent asserts that defendant waived his claim based on the language of CPL 400.21 (3) that allegations in the predicate felony statement are deemed admitted if not controverted. However, for that rule to apply, the court must ask the defendant if he or she “wishes to controvert any allegation made” in the predicate felony statement (CPL 400.21 [3]). Here, the court asked defendant whether he had out-of-state convictions and stated that they could be considered as felonies if committed in New York. However, this colloquy did not occur in connection with the discussion of the predicate felony statement, nor was it addressed to any particular conviction, let alone the one that formed the basis of the predicate felony finding. As the court did not adhere to the statutory requirement, there was no waiver.

      . Notably,
      “[a] motion [pursuant to CPL 440.20] to set aside [a] sentence may be brought even though the illegality upon which it is grounded presently is appealable or could with due diligence have been appealed. The rationale for the distinction [in this regard between motions pursuant to CPL 440.10 and 440.20] is that an illegal sentence should be subject to challenge and rectification in the trial court without compelling the defendant to pursue the more lengthy and cumbersome appellate procedure” (Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 440.20 at 11 [2005 ed]).

      . The dissent complains that the purpose of preservation is not achieved here because this case requires reliance on materials outside the record, specifically the D.C. statute and D.C. case law. We acknowledge that defendant did not include the foreign statute in his CPL 440.20 motion papers, where he raised his legal arguments concerning that statute. However, the applicable law is unlike factual information that must be included in a record. Courts routinely consult New York statutes and case law to ensure lawful sentencing, but we do not require the law, itself, to be placed in the record. The result should be no different where it is necessary for a court to refer to the law of another state; under such circumstances, we can take judicial notice of the law of the foreign jurisdiction.

      . The alternative element of “putting in fear” is not at issue here.

       To be sure, defendant had every incentive not to object to the foreign felony conviction. The agreement he negotiated allowed him to plead guilty to one count of robbery in the first degree in satisfaction of the 12 charges for which he was indicted.


author: Stein, J.

text:
    [46 NE3d 1057, 26 NYS3d 504]
    The People of the State of New York, Appellant, v Lawrence Watson, Respondent.
    Argued January 14, 2016;
    decided February 11, 2016

      POINTS OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (Dana Poole and Susan Gliner of counsel), for appellant.
    The trial judge did not abuse his discretion when, acting upon the report by defendant’s attorney and his public defense agency of a conflict of interest created by the agency’s dual representation in related cases of defendant and a potential witness at his trial, he relieved counsel and appointed a conflict-free attorney to represent defendant. (People v Payton, 22 NY3d 1011; People v Harris, 99 NY2d 202; People v Arroyave, 49 NY2d 264; People v Gomberg, 38 NY2d 307; People v Carncross, 59 AD3d 1112, 14 NY3d 319; People v Gordon, 272 AD2d 133; People v Robinson, 121 AD3d 1179; People v Lawson, 65 AD3d 1380; Wheat v United States, 486 US 153; People v Tineo, 64 NY2d 531.)

      Olshan Frome Wolosky LLP, New York City (Renee M. Zaytsev of counsel), and Richard M. Greenberg, Office of the Appellate Defender, New York City, for respondent.
    I. The Court should dismiss this appeal, as appellant has not identified any determinative legal question to be reviewed. (People v Giles, 73 NY2d 666; People v Albro, 52 NY2d 619; People v Bay, 54 NY2d 808; People v Konstantinides, 14 NY3d 1; People v Polhill, 24 NY3d 995; People v Holland, 18 NY3d 840; People v Omowale, 18 NY3d 825; People v Hinton, 81 NY2d 867; People v Amill,
      58 NY2d 967; Strickland v Washington, 466 US 668.) II. The Court should affirm the Appellate Division’s reversal of Lawrence Watson’s conviction because Mr. Watson was denied his Sixth Amendment right to counsel when the lower court disqualified his attorney over a nonexistent conflict of interest. (People v Arroyave, 49 NY2d 264; Matter of Abrams [John Anonymous], 62 NY2d 183; People v Griffin, 92 AD3d 1, 20 NY3d 626; People v Chambers, 133 Misc 2d 868; United States v Lech, 895 F Supp 586; United States v Kliti, 156 F3d 150; People v Wilkins, 28 NY2d 53; People v Griffin, 249 AD2d 244; People v Gomez, 13 NY3d 6.) III. The Court should affirm the Appellate Division’s reversal of Lawrence Watson’s conviction even if it finds that there was a potential conflict because any conflict was too remote to warrant disqualification and, in any event, Mr. Watson was willing to waive it. (Prodell v State of New York, 125 AD2d 805; Holloway v Arkansas, 435 US 475; Wheat v United States, 486 US 153; United States v Camisa, 969 F2d 1428; United States v Sullivan, 381 F Supp 2d 120; Rowe v De Jesus, 106 AD2d 284; People v Glinton, 72 AD3d 618; People v Doe, 98 Misc 2d 805; People v Salcedo, 68 NY2d 130; United States v Perez, 325 F3d 115.)
   OPINION OF THE COURT

Stein, J.

Notwithstanding the general rule that, for the purposes of conflict of interest analysis, knowledge of a large public defense organization’s current and former clients is typically not imputed to each attorney employed by the organization, conflicts may nevertheless arise in certain circumstances involving multiple representations within such organizations. In this case, Supreme Court was placed in the difficult position of having to either relieve defense counsel — thereby depriving defendant of the counsel of his choosing — or permit counsel to continue his representation despite a potential conflict of interest, thereby impinging on defendant’s right to the effective assistance of counsel. Under the circumstances presented here, the court did not abuse its discretion by relieving defendant’s assigned counsel and appointing conflict-free counsel to represent him. Therefore, we reverse.

L

Defendant showed a friend a gun in his waistband and threatened to use it against another person. He then went to a park, where he was seen near Toi Stephens. When police arrived, defendant and Stephens fled separately. Witnesses saw defendant throw a gun during the chase, and a gun was subsequently found in the identified location. Cocaine and marihuana were also found on the ground, and Stephens admitted that the drugs belonged to him. Defendant was charged with criminal possession of a weapon in the second degree (two counts) and resisting arrest. Stephens was charged with drug possession.

Robert Fisher, an attorney employed by New York County Defender Services (NYCDS), was assigned to represent defendant. Eight months later, the People turned over Rosario material that revealed that a different attorney from NYCDS had represented Stephens on his criminal charge arising from the same incident. Fisher immediately brought this to the attention of Supreme Court. Fisher stated that he had been looking for Stephens as a possible witness for defendant before becoming aware of the potential conflict of interest. Even though defendant wanted Fisher to continue as his attorney, Fisher was not sure it would be appropriate to do so. The court granted an adjournment to determine whether the situation could be resolved.

At an appearance a few days later, Fisher advised the court that Stephens had entered a guilty plea shortly after his arraignment, and NYCDS no longer represented him. However, because Stephens had not waived confidentiality, Fisher’s supervisors at NYCDS prohibited him from searching for Stephens, calling Stephens as a witness, or conducting any cross-examination if the People called him to testify. Fisher advised defendant that he could not continue to represent defendant unless defendant agreed to waive even the attempt to call Stephens as a witness. Fisher also asked the court to prohibit the People from calling Stephens, because his supervisors had determined that Fisher could represent defendant only under those conditions.

The court stated that it could not prevent the People from calling a relevant witness, and explained to defendant the potential conflict and the difficult position confronting Fisher. Defendant responded that he wanted to keep Fisher as his attorney and waive the conflict, but also that he wanted Stephens to testify. After hearing these statements that were incompatible with an unequivocal waiver, the court relieved Fisher of his assignment and assigned a new attorney, who represented defendant at trial. The jury convicted defendant of all charges.

The Appellate Division, with one Justice dissenting, reversed the judgment on the ground that the trial court had abused its discretion in relieving Fisher (124 AD3d 95 [1st Dept 2014]). The majority concluded that, because Fisher did not represent Stephens and was not privy to any of his confidential information, the relationship between NYCDS and Stephens did not constitute a conflict (see id. at 102-104). The dissent would have held that, at the very least, a potential conflict existed, and the trial court properly acted within its discretion in disqualifying counsel (see id. at 107-108 [Tom, J.P., dissenting]). The dissenting Justice granted the People leave to appeal to this Court (2015 NY Slip Op 63184[U] [1st Dept 2015]).

IL

A determination to substitute or disqualify counsel falls within the trial court’s discretion (see People v Carncross, 14 NY3d 319, 330 [2010]; People v Tineo, 64 NY2d 531, 536 [1985]). “That discretion is especially broad when the defendant’s actions with respect to counsel place the court in the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review” (Tineo, 64 NY2d at 536; see Carncross, 14 NY3d at 330; People v Robinson, 121 AD3d 1179, 1180 [3d Dept 2014]). Criminal courts faced with counsel who allegedly suffer from a conflict of interest must balance two conflicting constitutional rights: the defendant’s right to effective assistance of counsel; and the defendant’s right to be represented by counsel of his or her own choosing (see US Const 6th Amend; Carncross, 14 NY3d at 327; People v Gomberg, 38 NY2d 307, 312-313 [1975]). Thus, a court confronted with an attorney or firm that represents or has represented multiple clients with potentially conflicting interests faces the prospect of having its decision challenged no matter how it rules — if the court permits the attorney to continue and counsel’s advocacy is impaired, the defendant may claim ineffective assistance due to counsel’s conflict; whereas, if the court relieves counsel, the defendant may claim that he or she was deprived of counsel of his or her own choosing (see Wheat v United States, 486 US 153, 161 [1988]; Carncross, 14 NY3d at 330).

Courts “should not arbitrarily interfere with the attorney-client relationship,” but must protect the defendant’s right to effective assistance of counsel (Gomberg, 38 NY2d at 313; see Carncross, 14 NY3d at 327; see also Wheat, 486 US at 159-160). Thus, the court must satisfy itself that the defendant has made an informed decision to continue with counsel despite the possible conflict, yet avoid pursuing its inquiry too far so as not to intrude into confidential attorney-client communications or discussions of possible defenses (see Gomberg, 38 NY2d at 313; see also Holloway v Arkansas, 435 US 475, 487 [1978]).

Particularly relevant here, the presumption in favor of a client being represented by counsel of his or her choosing may be overcome by demonstration of an actual conflict or a serious potential for conflict (see Wheat, 486 US at 164). The court may appropriately place great weight upon counsel’s representations regarding the presence or absence of a conflict (see Gomberg, 38 NY2d at 314), because the attorney is generally in the best position to determine when a conflict of interest exists or is likely to develop during trial (see Holloway, 435 US at 485). Depending on when a potential conflict becomes evident, the court may not be aware of the details and ramifications of any conflict, or of the evidence, strategies or defenses that will emerge at trial (see People v Lloyd, 51 NY2d 107, 111 [1980]; Gomberg, 38 NY2d at 314; see also Wheat, 486 US at 162-163 [court must decide whether to allow waiver of conflict “not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context” where conflicts are hard to predict]; Carncross, 14 NY3d at 328-329 [same]). However, if the court waits until trial — to ascertain what witnesses testify or what strategy or defenses are employed — it runs a serious risk of a mistrial based on the conflict (see Carncross, 14 NY3d at 329-330).

Where there have been successive representations of individuals with different goals or strategies, a concern arises that counsel’s loyalties may be divided because a lawyer has continuing professional obligations to former clients. Those obligations include a duty to maintain the former client’s confidences and secrets (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.9), “ ‘which may potentially create a conflict between the former client and a present client’ ” (People v Prescott, 21 NY3d 925, 928 [2013], quoting People v Ortiz, 76 NY2d 652, 656 [1990]; see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7). Here, prior to defendant’s trial, Fisher’s NYCDS supervisors noted the institutional duty of loyalty to its former client, Stephens. Those supervisors — who presumably were familiar with Stephens’s file — determined that there was a potential or actual conflict that prevented Fisher from investigating Stephens, attempting to locate him, calling him as a witness, or cross-examining him if he was called by the People. Under these circumstances, the trial court did not err in concluding that defendant’s statements were insufficient to waive the conflict.

Our decision in People v Wilkins (28 NY2d 53 [1971]) does not compel a contrary result. In that case, this Court found that no conflict of interest existed merely because a defendant was represented by the Legal Aid Society and a different staff attorney from that same organization had previously represented — in an unrelated criminal proceeding — the person who was now the complaining witness against Wilkins. There, the purported conflict was not discovered until after Wilkins’s trial, and his counsel had no prior knowledge of the separate case involving charges against the complaining witness. Thus, the prior representation could not have affected the representation of Wilkins. We held that, unlike private law firms where knowledge of one member of the firm is imputed to all, large public defense organizations are not subject to such imputation, so there was no inferred or presumed conflict (see id. at 56; compare Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.10 [addressing imputation of conflict to firm]).

The current case is distinguishable from Wilkins, and we do not disturb the general rule against imputation of knowledge created there. In both cases, counsel worked for a large public defense organization and was initially unaware of another staff attorney’s representation of a potential witness in the client’s case, because there was apparently no free flow of information among staff attorneys. However, unlike counsel in Wilkins, defense counsel here became aware before defendant’s trial of NYCDS’s prior representation of Stephens, and the organization’s representation of Stephens arose from the same incident that led to defendant’s arrest. Additionally, Fisher’s supervisors expressly prohibited him from attempting to locate Stephens (apparently even by searching in publicly-available sources) or questioning him. This directly impinged on Fisher’s representation of defendant. Not only did the supervisors instruct Fisher to refrain from investigating Stephens, they also directed that he could not cross-examine Stephens if he was called by the People. Therefore, even if the institutional representation of Stephens did not, in and of itself, present a conflict, such a conflict was created by the conditions imposed by Fisher’s supervisors, which hampered his ability to zealously and single-mindedly represent defendant. Although the court could have inquired as to why NYCDS took the position of forbidding any investigation into or questioning of Stephens, the court was in a precarious situation because such an inquiry might have intruded into confidential attorney-client information. Thus, the court did not abuse its discretion by relieving counsel once those restrictions were announced.

Defendant’s assertion that he was never given the opportunity to waive the conflict is unavailing. Although defendant indicated that he would be willing to waive the conflict, almost immediately thereafter he said that he wanted Stephens to be called as a witness at trial. These competing statements did not clearly demonstrate a knowing waiver, or that defendant would knowingly waive Fisher’s conflict. Moreover, had he attempted to do so, it would have been within the court’s authority to decline to accept such a waiver (see Carncross, 14 NY3d at 327-328). A trial

“court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses” (Wheat, 486 US at 163).

Further, while defendant might have agreed to allow counsel to refrain from calling Stephens, the People indicated the possibility that they would call him as a witness, depending on the defense that was raised — including the potential assertion that someone other than defendant possessed and dropped the gun — which would not be known until trial. Although a waiver of the conflict by defendant would have permitted counsel to refrain from cross-examining Stephens if he was called, that would be a tactic based on loyalty to Stephens as a former NYCDS client, not a strategy employed in the best interest of defendant. Additionally, if the court had waited until trial and the People had decided to call Stephens, a mistrial could have resulted (see Carncross, 14 NY3d at 329-330). Thus, the court could properly decide that it would not accept a waiver in these circumstances, instead choosing to protect defendant’s right to the effective assistance of counsel in order to ensure a fair trial (see Carncross, 14 NY3d at 327-328; see also Wheat, 486 US at 162-163).

In sum, the Appellate Division erred in holding that the trial court abused its discretion. Supreme Court appropriately balanced defendant’s countervailing rights, based on the information it had at the time, and reasonably concluded that Fisher could not effectively represent defendant due to NYCDS’s representation of Stephens and the duty of loyalty Fisher’s supervisors were asserting toward that former client. Accordingly, the Appellate Division order should be reversed and the case remitted to that Court for consideration of the facts and issues raised, but not determined, on the appeal to that Court.

Judges Pigott, Rivera, Abdus-Salaam and Fahey concur; Chief Judge DiFiore and Judge Garcia taking no part.

Order reversed and case remitted to the Appellate Division, First Department, for consideration of the facts and issues raised but not determined on the appeal to that Court.