conflict waiver in New York

2021Said another way, a defendant "must demonstrate that the conduct of his defense was in fact affected by the operation of the conflict of interest" ( People v Alicea , 61 NY2d 23, 31 [1983]).

2021Said another way, a defendant "must demonstrate that the conduct of his defense was in fact affected by the operation of the conflict of interest" ( People v Alicea , 61 NY2d 23, 31 [1983]).

2021Unlike ineffective assistance of counsel claims, which are analyzed under the Baldi standard, a conflict claim merits reversal if the conflict "bears a substantial relation to the conduct of the defense" ( People v McDonald , 68 NY2d 1, 9 [1986] [internal quotations omitted]).

2021Unlike ineffective assistance of counsel claims, which are analyzed under the Baldi standard, a conflict claim merits reversal if the conflict "bears a substantial relation to the conduct of the defense" ( People v McDonald , 68 NY2d 1, 9 [1986] [internal quotations omitted]).

2017Defendant, who was represented by independent counsel for purposes of the conflict waiver, indicated his “awareness of the potential risks involved in that course” and that he had “knowingly chosen it” (People v Gomberg, 38 NY2d 307, 313-314 [1975]), even in the absence of a more detailed explanation of how the potential conflict might affect the defense strategy (see People v Lloyd, 51 NY2d 107, 111 [1980]).

2014The Chief Judge’s opinion apparently takes umbrage with this Court’s reluctance to prescribe a particular “format or catechism that the court must follow” when conducting a conflict inquiry (Lloyd, 51 NY2d at 112 ; see Caban, 70 NY2d at 697 ).

2014I further agree that, although the trial court did not secure a valid waiver from defendant, defendant failed to meet his burden to show that co-counsel’s potential conflict operated on his defense and, thus, his ineffective assistance of counsel claim must be rejected (see People v Konstantinides, 14 NY3d 1, 10 [2009]).

2012To prevail on a conflict claim based on successive representation, “a defendant does not have to establish that the conflict affected the outcome of the proceedings; a defendant must only show that the conflict operated on the defense” (People v Konstantinides, 14 NY3d 1, 14 [2009]; see also People v Ortiz, 76 NY2d 652 [1990]).

2017Defendant, who was represented by independent counsel for purposes of the conflict waiver, indicated his “awareness of the potential risks involved in that course” and that he had “knowingly chosen it” (People v Gomberg, 38 NY2d 307, 313-314 [1975]), even in the absence of a more detailed explanation of how the potential conflict might affect the defense strategy (see People v Lloyd, 51 NY2d 107, 111 [1980]).

2014When a conflict inquiry takes place prior to trial (as we have said it should), the court may not be “fully aware of the evidence, the nature of the defendants’ case or its ramifications” (Lloyd, 51 NY2d at 111 ), and an overly searching judicial inquiry could inadvertently “infringe upon the defendant’s right to retain and confer with counsel of his own choice” (Gomberg, 38 NY2d at 313 ; see Lloyd, 51 NY2d at 111 [“to require the defendant or his attorney to disclose to the court details of the defense, defense conferences, or strategy would in itself invade the defendants’ rights, including

2023Rather, reversal is only required if defendant meets the heavy burden of establishing that the "potential conflict of interest affected, or operated on, or bore a substantial relation to the conduct of the defense" ( People v Baber , 182 AD3d 794, 802 [3d Dept 2020] [internal quotation marks, brackets and citations omitted], lv denied 35 NY3d 1064 [2020]; see People v Gibson , 185 AD3d 1101, 1102 [3d Dept 2020], lv denied 35 NY3d 1066 [2020]).

2023Where, instead, the facts present a potential conflict — such as the business relationship between trial counsel and the ADA ( see People v Thomas , 217 AD3d 1125 , 1127 [3d Dept 2023], lv denied ___ NY3d ___ [Oct. 27, 2023]) — neither the attorneys' failure to disclose [*9]nor the lack of the corresponding judicial inquiry nor the absence of a conflict waiver by defendant require reversal ( see People v Payton , 22 NY3d 1011, 1014 [2013]; People v Harris , 99 NY2d 202, 211-212 [2002]; People v McCann , 126 AD3d 1031, 1035 [3d Dept 2015], lv denied 25 NY3d 1167 [2015]).

2023Where, instead, the facts present a potential conflict — such as the business relationship between trial counsel and the ADA ( see People v Thomas , 217 AD3d 1125 , 1127 [3d Dept 2023], lv denied ___ NY3d ___ [Oct. 27, 2023]) — neither the attorneys' failure to disclose [*9]nor the lack of the corresponding judicial inquiry nor the absence of a conflict waiver by defendant require reversal ( see People v Payton , 22 NY3d 1011, 1014 [2013]; People v Harris , 99 NY2d 202, 211-212 [2002]; People v McCann , 126 AD3d 1031, 1035 [3d Dept 2015], lv denied 25 NY3d 1167 [2015]).

2023Rather, reversal is only required if defendant meets the heavy burden of establishing that the "potential conflict of interest affected, or operated on, or bore a substantial relation to the conduct of the defense" ( People v Baber , 182 AD3d 794, 802 [3d Dept 2020] [internal quotation marks, brackets and citations omitted], lv denied 35 NY3d 1064 [2020]; see People v Gibson , 185 AD3d 1101, 1102 [3d Dept 2020], lv denied 35 NY3d 1066 [2020]).

2023Where, instead, the facts present a potential conflict — such as the business relationship between trial counsel and the ADA ( see People v Thomas , 217 AD3d 1125 , 1127 [3d Dept 2023], lv denied ___ NY3d ___ [Oct. 27, 2023]) — neither the attorneys' failure to disclose [*9]nor the lack of the corresponding judicial inquiry nor the absence of a conflict waiver by defendant require reversal ( see People v Payton , 22 NY3d 1011, 1014 [2013]; People v Harris , 99 NY2d 202, 211-212 [2002]; People v McCann , 126 AD3d 1031, 1035 [3d Dept 2015], lv denied 25 NY3d 1167 [2015]).

2014United States v Graham, 493 Fed Appx 162 [2d Cir 2012]; United States v Williams, 372 F3d 96, 109 [2d Cir 2004]; United States v Buissereth, 638 F3d 114, 117 [2d Cir 2011]; United States v Basciano, 384 Fed Appx 28 [2d Cir 2010]; United States v Iorizzo, 786 F2d 52, 59 [2d Cir 1986]) and which would be prudently followed in our criminal courts where there is doubt, as there evidently was in this case, 2 as to how a conflict waiver inquiry should proceed.

2014The Chief Judge’s opinion apparently takes umbrage with this Court’s reluctance to prescribe a particular “format or catechism that the court must follow” when conducting a conflict inquiry (Lloyd, 51 NY2d at 112 ; see Caban, 70 NY2d at 697 ).

2014United States v Graham, 493 Fed Appx 162 [2d Cir 2012]; United States v Williams, 372 F3d 96, 109 [2d Cir 2004]; United States v Buissereth, 638 F3d 114, 117 [2d Cir 2011]; United States v Basciano, 384 Fed Appx 28 [2d Cir 2010]; United States v Iorizzo, 786 F2d 52, 59 [2d Cir 1986]) and which would be prudently followed in our criminal courts where there is doubt, as there evidently was in this case, 2 as to how a conflict waiver inquiry should proceed.

2012To prevail on a conflict claim based on successive representation, “a defendant does not have to establish that the conflict affected the outcome of the proceedings; a defendant must only show that the conflict operated on the defense” (People v Konstantinides, 14 NY3d 1, 14 [2009]; see also People v Ortiz, 76 NY2d 652 [1990]).

2005Defendant failed to meet his burden of establishing good cause for substitution of counsel (see generally People v Linares, 2 NY3d 507, 510-511 [2004]).

2003This conflict in the hearing testimony presented issues of credibility for resolution by the Hearing Officer (see Matter of Goodwine v Selsky, 299 AD2d 782 [2002]) as did petitioner’s adamant denial that he had taken opiates (see Matter of Woods v Selsky, 291 AD2d 773, 774 [2002]).

2002In any event, the isolated efforts testified to by respondent are insufficient to preclude a finding of abandonment (see, Matter of Erika G., 289 AD2d 803, 804 ; Matter of Michael E.J., supra at 817; see also, Matter of Taylor R., 290 AD2d 830, 832 ).

2002In any event, the isolated efforts testified to by respondent are insufficient to preclude a finding of abandonment (see, Matter of Erika G., 289 AD2d 803, 804 ; Matter of Michael E.J., supra at 817; see also, Matter of Taylor R., 290 AD2d 830, 832 ).