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

315
KA 13-01086
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT JACKSON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (EVAN B. HANNAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Onondaga County Court (Joseph E. Fahey, J.), entered March 12,
2013. The order denied defendant’s motion pursuant to CPL 440.10 to
vacate the judgment convicting defendant of criminal possession of a
controlled substance in the first degree and criminal possession of a
controlled substance in the third degree.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Onondaga
County Court for a hearing pursuant to CPL 440.30 (5) in accordance
with the following memorandum: Defendant appeals from an order
denying, without a hearing, his CPL 440.10 motion to vacate a 2009
judgment convicting him following a jury trial of, inter alia,
criminal possession of a controlled substance in the first degree
(Penal Law § 220.21 [1]). In support of his motion, defendant
contended that he was deprived of effective assistance of counsel
because defense counsel and the attorney for a codefendant who
testified against defendant at trial were members of the same law
firm. We conclude that County Court erred in denying defendant’s
motion without a hearing.

     “Absent inquiry by the court and consent by the defendant, an
attorney may not represent a criminal defendant in a trial at which a
star prosecution witness is a codefendant whose plea bargain—including
the promise to testify against defendant—was negotiated by a partner
in the same firm. In these circumstances defendant is denied his
right to effective assistance of counsel” (People v Mattison, 67 NY2d
462, 465, cert denied 479 US 984). Thus, a defendant is denied
effective assistance of counsel where a member of defense counsel’s
law firm represents a witness who testifies against defendant at trial
unless the court conducts a “Gomberg inquiry to ascertain that the
                                 -2-                           315
                                                         KA 13-01086

facts had been disclosed to defendant and that he [or she] had made a
reasoned decision whether to proceed to trial with his [or her]
attorney” (People v Astafan, 283 AD2d 907, 907; see People v Ortiz, 76
NY2d 652, 656; see generally People v Gomberg, 38 NY2d 307, 313-314).

     Here, in support of his motion, defendant submitted an affidavit
from the testifying codefendant, who averred that he and defendant met
with defense counsel before the trial in an office that defense
counsel shared with the codefendant’s attorney, that the two attorneys
were members of the same law firm, and that defendant’s attorney
discussed the codefendant’s impending testimony with the express
understanding that he would not ask the codefendant any questions at
trial that would jeopardize the codefendant’s plea agreement. The
codefendant thereafter provided testimony that incriminated defendant.
We therefore conclude that defendant submitted sufficient evidence on
his motion to require a hearing on the issue whether a codefendant
testified at trial against defendant after that codefendant’s “plea
bargain—including the promise to testify against defendant—was
negotiated by a partner in the same firm” as defendant’s trial
attorney (Mattison, 67 NY2d at 465).

     Contrary to the contention of the People, defendant’s failure to
submit an affidavit from either of the two attorneys is not fatal to
the motion. “[D]efendant’s application is adverse and hostile to his
trial attorney[ and to the other purported member of that attorney’s
law firm]. To require the defendant to secure an affidavit, or
explain his failure to do so, [would be] wasteful and unnecessary”
(People v Radcliffe, 298 AD2d 533, 534; see generally People v
Campbell, 81 AD3d 1251, 1251).

     Furthermore, we reject the People’s contention that defendant
failed to establish prejudice arising from the simultaneous
representation. The Court of Appeals has noted that, “[i]n the
context of joint representation of codefendants, once the presence of
an actual conflict situation is established, prejudice is presumed,
for courts will not enter into nice calculations as to the amount of
prejudice resulting from the conflict” (People v Harris, 99 NY2d 202,
210 [internal quotation marks omitted]; see Mattison, 67 NY2d at 468).
At trial, the codefendant testified and unquestionably incriminated
defendant in the crimes of which he was convicted. Furthermore, in
support of his motion, defendant submitted evidence tending to
establish that an actual conflict existed because his attorney and the
codefendant’s attorney were members of the same law firm. “Such
nonrecord facts are material and if established could entitle
defendant to the relief sought. Under these circumstances, [the
court] erred in denying the motion without a hearing” (People v
Ferreras, 70 NY2d 630, 631).

     We have not considered defendant’s remaining contention, which
involves matters outside the record.

Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
