PEOPLE v. SMITH (2006)

 On appeal from a judgment convicting him upon a jury verdict of, inter alia, two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12] ), defendant contends that he was denied effective assistance of counsel during a hearing to reconstruct an in camera warrant proceeding for which the tape recording was lost.   At that hearing, defendant was represented by counsel for the codefendant because defendant's counsel of record was ill.   County Court offered to adjourn the hearing to such time as defendant's counsel of record recovered from his illness.   Defendant expressed a desire to go forward and indicated to the court that he had no objection to proceeding with the codefendant's counsel representing both him and the codefendant.

 When two defendants are represented by the same attorney, the court must ascertain on the record whether each defendant is aware of the potential risks and has knowingly chosen the course of representation (see People v. Gomberg, 38 N.Y.2d 307, 313-314, 379 N.Y.S.2d 769, 342 N.E.2d 550).   In our view, the court fulfilled its obligation in that regard and ensured that defendant knowingly and voluntarily waived any conflict of interest arising out of defense counsel's representation of defendant and the codefendant at the hearing (see People v. Brown, 26 A.D.3d 754, 807 N.Y.S.2d 890, lv. denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975).   Thus, it cannot be said that defendant was denied effective assistance of counsel at the hearing (see generally People v. Smith, 306 A.D.2d 858, 860, 761 N.Y.S.2d 895, lv. denied 100 N.Y.2d 587, 764 N.Y.S.2d 398, 796 N.E.2d 490).   In addition, the contention of defendant that he was denied effective assistance of counsel by the dual representation is without merit inasmuch as he failed to show that the conduct of his defense at the hearing was in any way “ ‘affected by the operation of the conflict of interest, or that the conflict operated on the representation’ ” (People v. Abar, 99 N.Y.2d 406, 409, 757 N.Y.S.2d 219, 786 N.E.2d 1255;  see People v. Jordan, 83 N.Y.2d 785, 787, 610 N.Y.S.2d 952, 632 N.E.2d 1275;  People v. Ortiz, 76 N.Y.2d 652, 657, 563 N.Y.S.2d 20, 564 N.E.2d 630).   Here, the nature of the evidence against each defendant did not suggest that there could be different theories and tactics of defense for each (cf. People v. Baffi, 49 N.Y.2d 820, 822, 427 N.Y.S.2d 615, 404 N.E.2d 737, rearg. denied 49 N.Y.2d 1048, 429 N.Y.S.2d 1027, 407 N.E.2d 483).   With respect to the remaining contentions of defendant concerning his representation, we conclude that defendant received 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).   The sentence is not unduly harsh or severe.

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

MEMORANDUM: