        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

829
KA 11-02358
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JUSTIN MCCUTCHEON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (JAMES R. GARDNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered November 17, 2011. The judgment convicted
defendant, upon a nonjury verdict, of attempted burglary in the second
degree and criminal mischief in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a
nonjury verdict of, inter alia, attempted burglary in the second
degree (Penal Law §§ 110.00, 140.25 [2]), defendant contends that he
was denied effective assistance of counsel because his then-girlfriend
and the mother of his child, who was also the complainant and a key
prosecution witness, paid his attorney’s fees. We reject that
contention. Because defendant apprised Supreme Court of the potential
conflict of interest, we agree with defendant that the court “had a
duty . . . to conduct an inquiry ‘to ascertain, on the record, whether
[defendant] had an awareness of the potential risks involved in his
continued representation by the attorney and had knowingly chosen to
continue such representation’ ” (People v Conte, 71 AD3d 1448, 1449,
quoting People v Lombardo, 61 NY2d 97, 102; see People v Carncross, 14
NY3d 319, 327). Although the court failed to conduct that inquiry, we
nevertheless conclude that defendant was not denied effective
assistance of counsel inasmuch as he failed to show “that the conduct
of his defense was in fact affected by the operation of the conflict
of interest, or that the conflict operated on the representation”
(People v Weeks, 15 AD3d 845, 847, lv denied 4 NY3d 892 [internal
quotation marks omitted]; see People v Sanchez, 21 NY3d 216, 223;
People v Hurlbert, 81 AD3d 1430, 1431, lv denied 16 NY3d 896).
Indeed, the record establishes that defense counsel thoroughly cross-
examined the witness and elicited testimony concerning her criminal
history and drug use, as well as her admission that she never saw
                                 -2-                           829
                                                         KA 11-02358

defendant attempt to enter the house. Further, defense counsel
introduced complainant’s letters to defendant, in which she stated
that she loved defendant and wanted him home with her and their child.

     Contrary to defendant’s further contention, the sentence is not
unduly harsh or severe.




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
