PEOPLE v. MAGEE (1999)

Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered May 7, 1993, upon a verdict convicting defendant of four counts of the crime of assault in the second degree.

After a February 19, 1992 altercation between several inmates and correction officers at the Tompkins County Public Safety Building, defendant was charged, together with Richard Jones, with assault in the second degree in violation of Penal Law § 120.05(7) and assault in the second degree with intent to cause injury to and prevent a peace officer, James Rolfe, from performing a lawful duty in violation of Penal Law § 120.05(3).   Defendant was also charged with two additional counts for the same crimes with respect to a separate peace officer, Harry Hawk.   A joint trial was held.

The assault upon Rolfe was fully reviewed in the appeal of the conviction of codefendant Jones (see, People v. Jones, 213 A.D.2d 801, 623 N.Y.S.2d 387, lv. denied 85 N.Y.2d 975, 629 N.Y.S.2d 735, 653 N.E.2d 631).   Hawk, upon observing defendant and Jones beating Rolfe, intervened, resulting in defendant striking him in the face and rendering him unconscious.

 Upon this appeal, we need not be detained by errors alleging selective prosecution and the lack of an impartial Grand Jury since this defendant, like Jones, failed to sustain his burden of proof (see, People v. Jones, supra, at 802, 803, 623 N.Y.S.2d 387;  see also, People v. Malphrus, 176 A.D.2d 1073, 575 N.Y.S.2d 381, lv. denied 79 N.Y.2d 860, 580 N.Y.S.2d 732, 588 N.E.2d 767;  People v. Mitchell, 156 A.D.2d 767, 549 N.Y.S.2d 188, lv. denied 75 N.Y.2d 922, 555 N.Y.S.2d 40, 554 N.E.2d 77).   Unpreserved for review is the contention of error in the denial of defendant's motion to dismiss count two of the superceding indictment at the conclusion of the People's case (see, People v. Sutton, 161 A.D.2d 612, 555 N.Y.S.2d 187, lv. denied 76 N.Y.2d 866, 560 N.Y.S.2d 1006, 561 N.E.2d 906).   Had we considered it, we would find that by the testimony of not only Rolfe but also Hawk and inmate Richard Rought, the People met their burden (see, People v. Barnes, 50 N.Y.2d 375, 381, 429 N.Y.S.2d 178, 406 N.E.2d 1071).

 Similarly unavailing is defendant's contention that he was denied effective assistance of counsel due to counsel's disbarment ¹ four years after defendant's sentence (see, People v. Powell, 197 A.D.2d 544, 546, 602 N.Y.S.2d 213, lv. denied 82 N.Y.2d 901, 610 N.Y.S.2d 168, 632 N.E.2d 478) and because of his inability to cross-examine Rought, a prosecution witness, due to his prior representation of him in an unrelated matter.   Despite the initial disclosure of such conflict upon the commencement of Rought's testimony and Rought's refusal to waive the attorney-client privilege to allow for cross-examination, such potential conflict does not independently rise to a claim of ineffective assistance of counsel (see generally, People v. Mattison, 67 N.Y.2d 462, 503 N.Y.S.2d 709, 494 N.E.2d 1374).   Noting the denial of defense counsel's request for substitution, our review of the cross-examination of this prosecution witness by counsel for codefendant Jones reveals that Jones' counsel had ample opportunity to impeach Rought's credibility by bringing out his numerous convictions.

 With impeachment evidence clearly before the jury and the record reflecting that Rought was not the chief prosecution witness and that substantial evidence, separate and apart from the testimony of such witness, was presented to corroborate his testimony, the conflict of interest cannot, standing alone, be deemed to be one which bears a “substantial relationship to the conduct of the defense” (People v. Recupero, 73 N.Y.2d 877, 879, 538 N.Y.S.2d 234, 535 N.E.2d 287).   Further rejecting a challenge to the adequacy of the record by the failure to locate certain exhibits in preparation of this appeal (see, People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170), we find that the evidence, law, and the totality of the circumstances presented herein, as of the time of representation, reveal that counsel provided meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   See, Matter of Darden, 240 A.D.2d 844, 658 N.Y.S.2d 718, appeal dismissed 90 N.Y.2d 1003, 665 N.Y.S.2d 955, 688 N.E.2d 1037.

PETERS, J.

MERCURE, J.P., SPAIN, CARPINELLO and GRAFFEO, JJ., concur.