This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 88
The People &c.,
             Respondent,
        v.
Gary Wright,
             Appellant.




          Michael Katzer, for appellant.
          Christopher D. Horn, for respondent.




DiFIORE, Chief Judge:
          The issue presented by this appeal is whether it was an
abuse of discretion to deny defendant's CPL 440.10 motion to
vacate his judgment of conviction without a hearing.   We hold
that the courts below were within their discretion to summarily
deny the motion because defendant's papers failed to substantiate

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the allegations that there was an actual conflict of interest or
that any potential conflict operated on the defense.
          In September 2008, defendant was charged with attempted
rape and was arraigned in local court.   At that time, he was
represented by the first of three attorneys to represent him
during the criminal action.   The Albany County District
Attorney's Office represented the People.   Defendant retained his
second attorney, James Long, in February 2009.    Long represented
defendant throughout a significant portion of the pre- and
postindictment proceedings, including plea negotiations and a
Huntley hearing.   In September 2009, defendant fired Long and
retained a third attorney, who represented him for the remainder
of the prosecution, including the November 2009 trial where
defendant was convicted of attempted rape in the first degree and
two counts of sexual abuse in the first degree, as charged in the
indictment.
          Defendant subsequently made successive CPL 440.10
motions to vacate the judgment of conviction based on newly
discovered evidence relating to the credibility of certain
witnesses.    County Court denied both motions without a hearing.
The Appellate Division affirmed the judgment of conviction and
the denial of both CPL 440 motions in a single order (88 AD3d
1154 [3d Dept 2011]).   A Judge of this Court denied defendant's
application for leave to appeal (18 NY3d 863 [2011]).
          In April 2014, defendant made the instant motion to


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vacate his judgment of conviction pursuant to CPL 440.10 based on
an alleged conflict of interest, asserting that his attorney,
Long, had simultaneously represented the Albany County District
Attorney, P. David Soares.   Defendant maintained that evidence of
the alleged conflict was newly discovered, that his conviction
was obtained in violation of his right to counsel and that it was
based on misrepresentation or fraud on the part of the
prosecutor.   He further asserted that Long had provided
ineffective assistance of counsel.     Defendant also sought an
order disqualifying Soares from taking any further action in his
case, as well as the appointment of a Special District Attorney.
          More specifically, defendant alleged that Long had
represented Soares in October 2008 -- four months before Long was
retained by defendant -- by writing a letter in connection with
Soares' November 2008 reelection campaign.     In support, defendant
attached an October 18, 2008 article from the Albany Times Union,
which stated that Long, who represented the campaign, had sent a
letter to the Board of Elections asking to examine the machine
ballots prior to the general election.     Defendant next alleged
that, in 2011-2012, Long was counsel of record for Soares in a
disciplinary proceeding and in Soares' divorce action.     Based on
these allegations, defendant maintained that the attorney-client
relationship between Soares and Long was continuous and had
lasted throughout the duration of defendant's criminal action.
Defendant also pointed out that, in other pending criminal


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actions in the period between 2012 and 2013 where Long was the
defense counsel, Soares, through his own affirmation, or the
affirmation of his Chief Assistant, admitted the fact of
simultaneous representation and sought the appointment of a
special district attorney pursuant to County Law § 701 based on
the existence of a conflict of interest.
           In response, the People submitted an affirmation from
an Assistant District Attorney who maintained that there had been
no simultaneous representation, and thus no actual conflict, and
that there was no potential conflict that had operated on the
defense.   The People, in the affirmation, denied "any and all
allegations of fact made by defendant in his moving papers that
[they had] not specifically conceded."   The responding papers did
not include an affidavit from Soares himself.
           County Court denied the motion without a hearing,
finding that defendant failed to establish an actual conflict,
that any conflict based on Long's subsequent 2011 representation
of Soares did not retroactively infect Long's 2009 representation
of defendant, and that defendant did not demonstrate actual
prejudice.   The court also concluded that the alleged conflict
did not amount to newly discovered evidence, as it could have
been discovered with due diligence at the time of trial.   The
Appellate Division affirmed, determining that there was no record
support for the assertion that there was an actual conflict and
that defendant failed to show that any potential conflict had


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operated on the defense (129 AD3d 1217, 1218-1219 [3d Dept
2015]).    A Judge of this Court granted defendant leave to appeal
(26 NY3d 1044 [2015], and we now affirm.
            CPL 440.30 requires that, where the motion to vacate a
judgment of conviction "is based upon the existence or occurrence
of facts," sworn allegations thereof must be included in the
motion papers (see CPL 440.30 [1] [a]).    The sworn allegations
can be based on personal knowledge or on information and belief,
but in support of the latter, "the affiant must state the sources
of such information and the grounds of such belief" (CPL 440.30
[1] [a]).   The People "may" file an answer "denying or admitting
any or all of the allegations" (see CPL 440.30 [1] [a]).    The
statute permits a court to deny the motion without a hearing in
certain circumstances, including if it "is based upon the
existence or occurrence of facts and the moving papers do not
contain sworn allegations substantiating or tending to
substantiate all the essential facts" (CPL 440.30 [4] [b]).    We
review the summary denial of a CPL 440 motion under an abuse of
discretion standard (see People v Jones, 24 NY3d 623, 630
[2014]).
            Defendant contends that his representation by Long was
subject to an actual and inherent conflict of interest and that
his conviction must therefore be vacated.    "A lawyer
simultaneously representing two clients whose interests actually
conflict cannot give either client undivided loyalty" (People v


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Ortiz, 76 NY2d 652, 656 [1990]).   We have distinguished between
actual and potential conflicts of interest, observing that
reversal of a defendant's conviction would be required where
there is even a significant possibility of an actual conflict
(see People v Solomon, 20 NY3d 91, 95-96 [2012]).   "'[A]
defendant is denied the right to effective assistance of counsel
guaranteed by the Sixth Amendment when, absent inquiry by the
court and the informed consent of defendant, defense counsel
represents interests which are actually in conflict with those of
defendant'" (Solomon, 20 NY3d at 97, quoting People v McDonald,
68 NY2d 1, 8 [1986]).
           By contrast, where there is a potential conflict of
interest that has not been waived, the defendant must show that
the conflict operated on the defense (see Solomon, 20 NY3d at 97-
98).   A potential conflict may exist where the conflicting
representations are successive, rather than simultaneous.     "Even
though a representation has ended, a lawyer has continuing
professional obligations to a former client, including the duty
to maintain that client's confidences and secrets" (Ortiz, 76
NY2d at 656).
           Here, defendant's actual conflict claim consists of
unsubstantiated and conclusory allegations of simultaneous
representation.   He relies on a letter Long wrote on behalf of
Soares' campaign four months before Long first represented
defendant, and Long's representation of Soares on various


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personal matters years after Long's representation of defendant
had ceased.   Beyond mere supposition, there is no factual support
for the conclusion that Long's representation of Soares'
reelection campaign in 2008 continued beyond its apparent scope,
or that it overlapped with his 2009 representation of defendant.
Under CPL 440.30 (4) (b), based on this failure to provide sworn
allegations substantiating or tending to substantiate the
essential facts, County Court was within its province to deny the
motion without a hearing (compare CPL 710.60 [3] [b]; People v
Mendoza, 82 NY2d 415 [1993]).
          This is not a case where the People offered or conceded
any facts to substantiate the defendant's legal argument, as the
Assistant District Attorney, who acts on behalf of the District
Attorney (see County Law § 702), in his affirmation specifically
denied that there was any concurrent representation (compare
People v Gruden, 42 NY2d 214 [1977]).   There is also no merit to
the claim that the trial court lacked the discretion to summarily
deny the 440 motion based on the People's failure to submit an
affirmation from Soares, himself, on a theory that this omission
amounts to a presumptive admission of the alleged conflict.
Indeed, the statute is plain that the initial failure by a
defendant to carry his or her burden of coming forward with sworn
allegations substantiating the essential facts in the 440 motion
does not shift the burden to the People in their responsive
pleadings.


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          Defendant argues that evidence of the existence of the
conflict would most likely be out of his reach (see People v
Shinkle, 51 NY2d 417, 420-421 [1980]).    This claim is without
merit in these circumstances.   Defendant admittedly never
attempted to obtain the necessary information from his own
attorney (Long).   Whatever the strategy of omission, we simply do
not know whether Long's answer would have aided defendant's
claim.   The failure to include an affirmation from counsel, or an
explanation for the failure to do so, has been held to warrant
the summary denial of a defendant's postconviction motion (see
People v Morales, 58 NY2d 1008, 1009 [1983]; People v Scott, 10
NY2d 380, 381-382 [1961]).   Of course, if defendant either
obtains the requisite information from Long or Long proves
uncooperative, he is permitted by statute to bring a subsequent
CPL 440 motion (see People v Session, 34 NY2d 254, 256 [1974]).
          To the extent defendant's allegations are sufficient to
establish a potential conflict -- based on the successive
representation -- his papers do not attempt to demonstrate that
such a conflict operated on the defense.    Long's representation
had concluded two months before defendant went to trial, where he
was represented by another attorney.    He also conceded in his
motion papers that he is unable to "pinpoint the manner in which
his loyalty was betrayed and/or his confidences were
compromised."
          In sum, there was no abuse of discretion in the denial


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of his motion without a hearing.
            Defendant's remaining contentions are without merit.
            Accordingly, the order of the Appellate Division should
be affirmed.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Chief Judge DiFiore. Judges Pigott,
Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Decided June 9, 2016




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