THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ROBERT JACKSON DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

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.

“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 N.Y.2d 462, 465, cert denied 479 U.S. 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 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 A.D.2d 907, 907;  see People v. Ortiz, 76 N.Y.2d 652, 656;  see generally People v. Gomberg, 38 N.Y.2d 307, 313–314).

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

Frances E. Cafarell

Clerk of the Court