Opinion
Argued March 23, 1990
Decided April 26, 1990
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Samuel J. Castellino, J.
Thomas E. Reilly for appellant.
James T. Hayden, District Attorney (Weeden A. Wetmore and Margaret C. Drake of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, and a new trial ordered.
Defendant argues that, in the absence of a knowing waiver, he was denied effective assistance of counsel due to his defense counsel's concurrent representation of the prosecution's primary witness on an unrelated civil matter (see, People v Gomberg, 38 N.Y.2d 307; People v Macerola, 47 N.Y.2d 257). Under the unique circumstances presented we conclude that there should be a reversal.
As a threshold, the principles of People v Gomberg (supra) and People v Macerola (supra) apply to the potential conflicts that arise from a defense counsel's representation of an important prosecution witness, as well as to counsel's representation of a codefendant (see, e.g., People v Lombardo, 61 N.Y.2d 97, 102 [representing defendant and People's chief witness]; People v McDonald, 68 N.Y.2d 1 [representing defendant and victim]). Additionally, both the prosecution and defense counsel are under a mandatory affirmative obligation both to recognize the existence of a potential conflict and to alert the court to the facts and circumstances surrounding that potential conflict (see, People v McDonald, supra, at 8), so that the Trial Judge can conduct a record inquiry and be satisfied that the defendant "has an awareness of the potential risks involved in that course and has knowingly chosen it" (People v Gomberg, supra, at 313-314; see, People v Macerola, supra, at 262-263; People v McDonald, supra, at 8-9). This inquiry is vital "because defendants may not always sense when a conflict exists or perceive how it might undermine effective representation" (People v Mattison, 67 N.Y.2d 462, 468). None of these things were done in this case.
Here, both defense counsel and the prosecution were acutely aware that a conflict existed by virtue of defense counsel's representation of the prosecution's chief witness (see, e.g., People v Lombardo, supra). Their failure to bring the underlying facts to the court's attention is inexcusable. Having previously been personally responsible for a reversal because of a similar omission, both the District Attorney and defense counsel were undoubtedly aware of their duty to alert the court to the need for a Gomberg inquiry (see, People v Mattison, 67 N.Y.2d 462, supra). Under these circumstances, a reversal and new trial are required.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order reversed, etc.