PEOPLE v. DAVIS (2007)

 Defendant appeals from a judgment convicting him after a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25 [1] ), in connection with the stabbing death of his former girlfriend.   Contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The evidence presented at trial established that there were bloodstains in the pockets and on the waistband of a pair of pants recovered from defendant's residence and that the DNA of the bloodstains matched that of both defendant and the victim.   Furthermore, two witnesses testified that, while they were incarcerated with defendant, defendant admitted that he killed the victim and that he was concerned about bloodstains on a pair of pants.   The jury was entitled to resolve the credibility issues with respect to those witnesses in favor of the People (see People v. Walek, 28 A.D.3d 1246, 812 N.Y.S.2d 915, lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261).

 We reject the further contention of defendant that the testimony of one of those witnesses deprived him of his right to counsel because the witness had acted as his “legal advisor” during their incarceration.   County Court properly determined following the pretrial Cardona hearing that the witness was not acting as an agent of the government because he was working independently of the prosecution and the information was not sought by the prosecutor but, rather, was passively received by the prosecutor (see People v. Cardona, 41 N.Y.2d 333, 335, 392 N.Y.S.2d 606, 360 N.E.2d 1306;  People v. Smith, 2 A.D.3d 1431, 1433, 770 N.Y.S.2d 527, lv. denied 2 N.Y.3d 746, 778 N.Y.S.2d 471, 810 N.E.2d 924, 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478).

 We reject the contention of defendant that his right to counsel was violated because one of his attorneys also represented a prosecution witness.   The record establishes that, upon learning of the conflict, the attorney promptly advised the court and was relieved of representing the prosecution witness several months before the commencement of the trial (see generally People v. Lombardo, 61 N.Y.2d 97, 102-103, 472 N.Y.S.2d 589, 460 N.E.2d 1074).   We note, however, that the court failed in its obligation to conduct a record inquiry to determine whether defendant was aware of the risks of the potential conflict and waived those risks (see People v. Harris, 99 N.Y.2d 202, 211, 753 N.Y.S.2d 437, 783 N.E.2d 502;  cf. People v. Uthman, 31 A.D.3d 1179, 817 N.Y.S.2d 554, lv. denied 7 N.Y.3d 852, 823 N.Y.S.2d 781, 857 N.E.2d 76).   Nevertheless, we conclude under the circumstances of this case that defendant has failed to establish “the existence, or probable existence, of a conflict of interest [that] bears a substantial relation to the conduct of the defense” (Harris, 99 N.Y.2d at 211, 753 N.Y.S.2d 437, 783 N.E.2d 502 [internal quotation marks omitted];  see People v. McDonald, 68 N.Y.2d 1, 9, 505 N.Y.S.2d 824, 496 N.E.2d 844).

 Defendant failed to preserve for our review his contention that he was deprived of a fair trial based on several instances of prosecutorial misconduct (see CPL 470.05[2] ) and, in any event, defendant's contention lacks merit.   In reviewing the alleged instances of misconduct, we note that, contrary to defendant's contention, the prosecutor did not inject the issue of his own credibility into the trial (see People v. Rivera [Robert], 27 A.D.3d 491, 810 N.Y.S.2d 333, lv. denied 6 N.Y.3d 852, 816 N.Y.S.2d 758, 849 N.E.2d 981).   In addition, we note that, although the prosecutor improperly commented on facts not in evidence, the court sustained defendant's objection to those improper comments and any prejudicial effect therefore was dispelled (see People v. Rickard, 26 A.D.3d 800, 800-801, 808 N.Y.S.2d 880, lv. denied 7 N.Y.3d 762, 819 N.Y.S.2d 887, 853 N.E.2d 258);  that statements made by the prosecutor during summation were fair comment on the evidence and “ ‘did not exceed the broad bounds of rhetorical comment permissible in closing argument’ ” (People v. Williams, 28 A.D.3d 1059, 1061, 813 N.Y.S.2d 606;  see People v. Kelly, 34 A.D.3d 1341, 825 N.Y.S.2d 855);  and that the prosecutor's contact with informants prior to trial did not create a situation in which the prosecutor's role would become “a material issue in the case” (People v. Paperno, 54 N.Y.2d 294, 302, 445 N.Y.S.2d 119, 429 N.E.2d 797;  see generally People v. Garcia, 27 A.D.3d 398, 398-399, 811 N.Y.S.2d 402, lv. denied 7 N.Y.3d 789, 821 N.Y.S.2d 818, 854 N.E.2d 1282).

 Defendant further contends that the court abused its discretion in admitting in evidence a knife block that was missing one knife.   The knife block allegedly was owned by the victim and was found among defendant's belongings at the location where defendant was staying with his brother.   Defendant failed to preserve his contention for our review (see CPL 470.05 [2] ) and, in any event, we conclude that the court did not abuse its discretion in admitting the knife block in evidence (see generally People v. Mateo, 2 N.Y.3d 383, 424-425, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Smith, 12 A.D.3d 1106, 784 N.Y.S.2d 810, lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143).   Finally, we reject the contention of defendant that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Lockett, 34 A.D.3d 1208, 823 N.Y.S.2d 804).

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

MEMORANDUM: