PEOPLE v. SAFFOLD

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Deborah SAFFOLD, Appellant.

Decided: December 31, 1997

Before DENMAN, P.J., and LAWTON, WISNER, BALIO and BOEHM, JJ. Gerald T. Barth by Judith Malkin, Syracuse, for Appellant. William J. Fitzpatrick, Syracuse, James Maxwell, for Respondent.

 We reject the contention of defendant that she was denied meaningful representation because defense counsel jointly represented defendant and codefendant, her husband.   The record establishes that, after defendant and codefendant were arrested, they retained the same counsel to represent them.   After defendant and codefendant were indicted and arraigned, defendant informed counsel that she wished to cooperate and to enter into a plea agreement.   Based upon the conflict of interest arising therefrom, counsel sought permission from County Court to be relieved of his representation of defendant.   The court granted counsel's request and assigned defendant new counsel.   New counsel moved to disqualify defendant's former counsel from representing codefendant or, in the alternative, for a severance.   The court granted counsel's request for a severance.   Defendant subsequently pleaded guilty pursuant to a plea agreement.

 Joint representation of defendants by a single attorney creates a potential conflict of interest that may deprive each defendant of meaningful representation (see, People v. Recupero, 73 N.Y.2d 877, 878, 538 N.Y.S.2d 234, 535 N.E.2d 287).  “Joint representation is not per se forbidden, however, and vacatur of the plea will only result where the defendant demonstrates that a significant possibility of a conflict of interest existed bearing a substantial relationship to the conduct of the defense” (People v. Recupero, supra, at 879, 538 N.Y.S.2d 234, 535 N.E.2d 287).   Defendant failed to demonstrate that the joint representation created a conflict of interest that substantially affected the conduct of the defense (see, People v. Recupero, supra;  People v. McDonald, 68 N.Y.2d 1, 9, 505 N.Y.S.2d 824, 496 N.E.2d 844, rearg. dismissed 69 N.Y.2d 724, 512 N.Y.S.2d 366, 504 N.E.2d 693).

We further conclude that defendant's sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: