                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     106904
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

GARY WRIGHT,
                    Appellant.
________________________________


Calendar Date:   April 29, 2015

Before:   Peters, P.J., Garry, Rose and Devine, JJ.

                             __________


      Law Offices of Michael Katzer, Slingerlands (Michael Katzer
of counsel), for appellant.

      P. David Soares, District Attorney, Albany (Christopher D.
Horn of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal, by permission, from an order of the County Court of
Albany County (Herrick, J.), entered July 9, 2014, which, among
other things, denied defendant's motion pursuant to CPL 440.10 to
vacate the judgment convicting him of the crimes of attempted
rape in the first degree and sexual abuse in the first degree
(two counts), without a hearing.

      Following a jury trial in November 2009, defendant was
convicted of attempted rape in the first degree and two counts of
sexual abuse in the first degree. Both defendant's judgment of
conviction and the order denying his subsequent CPL 440.10 motion
were affirmed by this Court on appeal (88 AD3d 1154 [2011], lv
denied 18 NY3d 863 [2011]). Approximately 2½ years later,
                              -2-                106904

defendant again moved to vacate the judgment of conviction
pursuant to CPL 440.10, this time alleging that James Long, one
of the three attorneys who represented him during the course of
the criminal proceedings, was ineffective as a result of a
conflict of interest. Specifically, defendant claimed that,
while representing him, Long was simultaneously representing
David Soares, the Albany County District Attorney, whose office
was prosecuting defendant. Defendant also requested that the
District Attorney's office be disqualified and a special
prosecutor be appointed for any further proceedings that may
occur in his case. County Court denied defendant's motion
without a hearing, and defendant, by permission, now appeals.

      The State and Federal Constitutions guarantee a criminal
defendant the right to the effective assistance of counsel, that
is, "representation that is reasonably competent, conflict-free
and singlemindedly devoted to the client's best interests"
(People v Payton, 22 NY3d 1011, 1013 [2013] [internal quotation
marks and citation omitted]; accord People v Ennis, 11 NY3d 403,
409-410 [2011], cert denied 556 US 1240 [2009]; People v Harris,
99 NY2d 202, 209 [2002]). "Discussions of the effect of a
lawyer's conflict of interest on a defendant's right to the
effective assistance of counsel distinguish between a potential
conflict and an actual conflict" (People v Solomon, 20 NY3d 91,
95 [2012]). "An actual conflict exists if an attorney
simultaneously represents clients whose interests are opposed
and, in such situations, reversal is required if the defendant
does not waive the actual conflict. In contrast, a potential
conflict that is not waived by the accused requires reversal only
if it 'operates' on or 'affects' the defense" (People v Sanchez,
21 NY3d 216, 223 [2013] [citations omitted]; see People v
Solomon, 20 NY3d at 96-97; People v Harris, 99 NY2d at 210;
People v Ortiz, 76 NY2d 652, 657 [1990]). The burden of showing
that such a conflict exists rests with the defendant (see People
v Sanchez, 21 NY3d at 223; People v Konstantinides, 14 NY3d 1, 12
n 4 [2009]; People v Jordan, 83 NY2d 785, 787 [1994]).1


    1
        For this reason, and inasmuch as the People were not even
required to respond to the motion (see CPL 440.30 [1] [a]; People
v Hoffler, 74 AD3d 1632, 1635 n 4 [2010], lv denied 17 NY3d 859
                              -3-                106904

      Defendant's assertion that an actual conflict of interest
existed between Long and Soares finds no support in the record.
It is undisputed that Long began representing defendant in the
instant matter in February 2009 and continued to represent
defendant in the pretrial stages of the criminal action until he
was terminated in September 2009, approximately two months prior
to the commencement of the jury trial. In support of his claim
that Long was operating under a conflict at the time of the
representation, defendant proffered a copy of an October 18, 2008
newspaper article which stated that Long had sent a letter to the
Albany County Board of Elections on behalf of Soares' reelection
campaign regarding the omission of Soares' name from a party line
on thousands of absentee ballots for the 2008 election. The
record is bereft of any evidence, however, that Long represented
Soares or his campaign at any other time during the period
leading up to and through his representation of defendant in the
instant criminal action.2 Having put forth no proof that the
representation was concurrent, defendant failed to show the
existence of an actual conflict of interest (compare People v
Solomon, 20 NY3d at 96-98; People v Lynch, 104 AD3d 1062,
1062-1063 [2013]).

      Assuming, without deciding, that Long represented Soares
during his reelection campaign and that such representation
created a potential conflict of interest, we conclude that
defendant failed to meet the heavy burden of showing that "'the
conduct of his defense was in fact affected by the operation of


[2011]), there is no merit to defendant's argument that an
adverse inference should have been drawn against the People due
to its failure to submit an affidavit from Soares concerning his
professional relationship with Long.
    2
        While defendant also put forth evidence that Long
represented Soares in connection with a professional misconduct
matter in April 2011, as well as in various personal matters
thereafter, such representation occurred well after the attorney-
client relationship between Long and defendant ended. As such,
it has no bearing on whether Long was operating under a conflict
at the time of his representation of defendant.
                              -4-                106904

the conflict of interest,' or that the conflict 'operated on' the
representation" (People v Ortiz, 76 NY2d at 657, quoting People v
Alicea, 61 NY2d 23, 31 [1983]; accord People v Konstantinides, 14
NY3d at 10; People v Robles, 115 AD3d 30, 37 [2014], lv denied 22
NY3d 1202 [2014]; see People v Sanchez, 21 NY3d at 223). The
record plainly reveals that, during the seven-month pretrial
period in which he represented defendant, Long made multiple
court appearances on defendant's behalf, arranged for the crime
scene to be photographed, assisted defendant in preparing to
testify before the grand jury and filed appropriate motions to,
among other things, suppress defendant's statement to police and
dismiss the indictment. Perhaps most notably, Long obtained two
favorable plea offers, both of which defendant rejected (see
People v Abar, 99 NY2d 406, 410 [2003]; People v Bier, 307 AD2d
649, 650-651 [2003], lv denied 100 NY2d 618 [2003]). Moreover,
Long's representation of defendant ended two months prior to the
commencement of the jury trial, and there is no suggestion that
the successor attorney's loyalty to defendant was in any way
compromised or that his representation of defendant leading up to
and through the trial was less than meaningful (cf. People v
Konstantinides, 14 NY3d at 11-12). In light of these
circumstances, defendant has failed to demonstrate that any such
conflict operated on his defense (see id.; People v Abar, 99 NY2d
at 410-411; People v Monette, 70 AD3d 1186, 1187-1188 [2010], lv
denied 15 NY3d 776 [2010]; People v McCrone, 12 AD3d 848, 849-850
[2004], lv denied 4 NY3d 800 [2005]; People v Bier, 307 AD2d at
650-651).

      Finally, absent a showing of "actual prejudice arising from
a demonstrated conflict of interest or a substantial risk of an
abuse of confidence" (Matter of Schumer v Holtzman, 60 NY2d 46,
55 [1983]), County Court was not required to disqualify the
District Attorney's office with regard to any further proceedings
that may arise in this case (see People v English, 88 NY2d 30, 34
[1996]; People v Herr, 86 NY2d 638, 641-642 [1995]; People v
Giroux, 122 AD3d 1063, 1064 [2014]; People v Zinkhen, 89 AD3d
1319, 1320 [2011], lv denied 18 NY3d 964 [2012]).

     Garry, Rose and Devine, JJ., concur.
                        -5-                  106904

ORDERED that the order is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
