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

30
KA 14-00580
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES D. PANDAJIS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES D. PANDAJIS, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered January 30, 2014. The judgment convicted
defendant, upon a jury verdict, of robbery in the second degree.

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

     Memorandum: These consolidated appeals arise from an incident in
which a man wearing a mask took money from a convenience store.
Defendant appeals, in appeal No. 1, from a judgment convicting him
upon a jury verdict of robbery in the second degree (Penal Law
§ 160.10 [2] [b]). In appeal No. 2, he appeals from an amended order
denying his CPL 440.30 (1-a) motion seeking DNA testing of certain
evidence that was introduced at the trial that led to the conviction
in appeal No. 1. In appeal No. 1, defendant contends in his main
brief that he was deprived of effective assistance of counsel because
defense counsel had a conflict of interest. We conclude that County
Court did not abuse its discretion in permitting defense counsel, an
assistant public defender, to represent defendant at trial after the
court learned that two other assistant public defenders, who left the
public defender’s office prior to trial, had previously represented a
prosecution witness who testified at defendant’s trial.

     Contrary to defendant’s contention, the above situation does not
present “an actual conflict—the simultaneous representation of clients
whose interests were opposed” (People v Solomon, 20 NY3d 91, 97).
Furthermore, although there was a potential conflict of interest
arising from the prior representation of the prosecution witness by
other, former members of trial counsel’s office (see People v Davis,
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                                                         KA 14-00580

83 AD3d 1492, 1492, lv denied 17 NY3d 815, reconsideration denied 17
NY3d 903; People v Taylor, 52 AD3d 1327, 1328, lv denied 11 NY3d 835),
the record establishes that the court, upon learning of the potential
conflict of interest, conducted an inquiry “to ascertain, on the
record, [that 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 Lombardo,
61 NY2d 97, 102; see generally Solomon, 20 NY3d at 95; People v
McDonald, 68 NY2d 1, 8, rearg dismissed 69 NY2d 724; People v Gomberg,
38 NY2d 307, 313-314). In addition, defendant has not established
that the potential conflict of interest bore “a substantial relation
to the conduct of the defense” (People v Harris, 99 NY2d 202, 211
[internal quotation marks omitted]), and thus “defendant failed to
meet his burden of establishing that ‘the conduct of his defense was
in fact affected by the operation of the conflict of interest’ ”
(People v Smart, 96 NY2d 793, 795, quoting People v Alicea, 61 NY2d
23, 31; see People v Konstantinides, 14 NY3d 1, 10). Indeed, defense
counsel vigorously cross-examined the prosecution witness at issue and
attacked her credibility on several bases, including the convictions
that defendant contends were the basis for a conflict of interest.

     Also with respect to appeal No. 1, defendant failed to preserve
for our review his contention in his main brief that the evidence is
legally insufficient to support the conviction inasmuch as his motion
to dismiss was not specifically directed at the ground advanced on
appeal (see People v Gray, 86 NY2d 10, 19; People v King, 136 AD3d
1313, 1313, lv denied 27 NY3d 1000; see also People v Hawkins, 11 NY3d
484, 492). In any event, we conclude that the evidence, viewed in the
light most favorable to the People (see People v Contes, 60 NY2d 620,
621), is legally sufficient to support the conviction (see generally
People v Bleakley, 69 NY2d 490, 495) and, contrary to defendant’s
contention in his pro se supplemental brief, viewing the evidence in
light of the elements of the crime as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we further conclude that the verdict is
not against the weight of the evidence (see generally Bleakley, 69
NY2d at 495). The record establishes that a DNA sample obtained from
saliva recovered from a mask found near the crime scene was compared
to a DNA sample provided by defendant. The People’s expert testified
that the DNA sample recovered from the mask was consistent with
defendant’s DNA, and that the chance that the DNA sample came from a
person unrelated to defendant was one in 1.27 quintillion. In
addition, the mask was distinctive, was identical to the mask depicted
in the store’s surveillance video of the crime, was found shortly
after the crime, was generally located between the crime scene and
defendant’s residence, and appeared from its condition to have been
left at that location recently. Although the eyewitness did not
identify defendant as the masked person who robbed the store, the
evidence at trial established that defendant generally fit the
eyewitness’s initial description of the perpetrator in terms of age,
race, height, weight and build, and his appearance was generally
consistent with the appearance of the perpetrator on the surveillance
video.
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                                                         KA 14-00580

     Contrary to defendant’s contention in his main brief with respect
to appeal No. 2, the court properly denied his CPL 440.30 (1-a) motion
seeking DNA testing of other parts of the mask and a hair fragment
found in it. Here, in support of his motion, “[d]efendant failed to
establish that if DNA tests had been conducted on [the mask] and the
results had been admitted at his trial that ‘there exists a reasonable
probability that the verdict would have been more favorable to’ him”
(People v Mixon, 129 AD3d 1509, 1509, lv denied 26 NY3d 1090, cert
denied ___ US ___, 136 S Ct 2016; see People v Workman, 72 AD3d 1640,
1640, lv denied 15 NY3d 925, reconsideration denied 16 NY3d 838).




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
