The People, Respondent,v.Wendell Payton, Appellant.BriefN.Y.November 14, 2013 To Be Argued By: Glenn Green Time Requested: Ten Minutes COURT OF APPEALS STATE OF NEW YORK -----------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, APL-2013-00021 - against - AD Case No. 2008-09584 Suff. Co. Ind. No. 1135-2007 WENDELL PAYTON, Defendant-Appellant. -----------------------------------------------------------------X BRIEF OF RESPONDENT THOMAS J. SPOTA District Attorney of Suffolk County Arthur M. Cromarty Court Complex 200 Center Drive Riverhead, N.Y. 11901 (631) 852-2500 Fax: (631) 852-2762 GLENN GREEN Assistant District Attorney Of Counsel Brief Completed On April 17, 2013 TABLE OF CONTENTS Page Table of Authorities i Preliminary Statement – 1 Question Presented – 3 Statement of Facts – 4 Pretrial Hearings – 4 The Trial – 5 Defendant Is Given New Counsel – 14 Defendant’s 330 Motion – 15 Defendant’s 440 Motion – 16 Defendant’s Conviction is Affirmed – 17 POINT I --------------------------------------------------------------------------------- 18 PAYTON WAS AFFORDED EFFECTIVE REPRESENTATION, UNIMPAIRED BY ANY CONFLICT. Conclusion ----------------------------------------------------------------------------- 38 Certificate Of Compliance With 22 N.Y.C.R.R. 670.10.3(a)(3) Table of Authorities Federal Cases Armienti v. United States, 313 F.3d 807 (2d Cir. 2002) .......................................................................... 27, 28 Beatty v. United States, 142 F. Supp.2d 454 (S.D.N.Y. 2001) ............................................................ 22, 25 Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708 (1980) ........................................................... 19, 20 Findley v. United States, ___ U.S. ___, 123 S. Ct. 204 (2002) .................................................................... 22 Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012) .................................................................. 25 Matter of Robert A. Macedonio, 66 A.D.3d 211 (2d Dept. 2009) ............................................................................ 19 Mickens v. Taylor, 535 U.S. 163, 122 S. Ct. 1237 (2002) .................................................................. 20 Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012) .................................................................. 26 Reyes-Verjerano v. United States, 276 F.3d 94 (1st Cir. 2002) .................................................................................. 22 Rowe v. Miller, 299 F. Supp.2d 231 (S.D.N.Y. 2004) ................................................................... 20 Skinner v. Duncan, ___ F. Supp.2d ___, 2003 WL 21386032 ............................................................ 21 United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984) ................................................................................. 28 United States v. Doe, 272 F.3d 116 (2d Cir. 2001) ................................................................................. 18 United States v. Fulton, 5 F.3d 605 (2d Cir. 1993) .............................................................................. 19, 22 United States v. Levy, 25 F.3d 146 (2d Cir. 1994) ................................................................................... 18 United States v. Washington, 46 Fed. Appx. 705, 2002 WL 31116146 (4th Cir. 2002), cert. denied, sub nom., Washington v. United States, 538 U.S. 938, 123 S. Ct. 1605 (2003) ........ 22 ii State Cases People v. Abar, 99 N.Y.3d 406 (2003) .............................................................................. 21, 33, 34 People v. Badia, 159 A.D.2d 577 (2d Dept. 1990) .......................................................................... 23 People v. Baffi, 49 N.Y.2d 820 (1980) ........................................................................................... 35 People v. Brun, 58 A.D.3d 862 (2d Dept. 2009) ............................................................................ 30 People v. Carney, 179 A.D.2d 818 (2d Dept.), lv. denied, 80 N.Y.2d 894 (1992) ............................ 24 People v. Corniel, 308 A.D.2d 395 (1st Dept. 2003), lv. denied, 1 N.Y.3d 596 (2004) .................... 22 People v. Ennis, 11 N.Y.3d 403 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2383 (2009) .................................................................................................... 20, 25 People v. Faulkner, 55 A.D.3d 924 (2d Dept. 2008), lv. denied, 11 N.Y.3d 924 (2009) ..................... 33 People v. Harris, 99 N.Y.2d 202 (2002) .............................................................................. 19, 33, 34 People v. Jordan, 83 N.Y.2d 785 (1994) ........................................................................................... 25 People v. Konstantinides, 14 N.Y.3d 1 (2009) ........................................................................................ 21, 34 People v. Longtin, 92 N.Y.2d 640 (1998), cert. denied, 526 U.S. 1114, 119 S. Ct. 1760 (1999) ............................................................................................................. 19, 32 People v. McDonald, 68 N.Y.2d 1 (1986) ............................................................................................... 20 People v. McGillicuddy, 103 A.D.3d 1200 (4th Dept. 2013) ....................................................................... 20 People v. Ming Li, 91 N.Y.2d 913 (1998) ......................................................................................... 21 People v. Monette, 70 A.D.3d 1186 (3d Dept.), lv. denied, 15 N.Y.3d 776 (2010) ............................ 35 People v. Ortiz, 76 N.Y.2d 652 (1990) ........................................................................................... 22 People v. Recupero, 73 N.Y.2d 877 (1998) ........................................................................................... 35 iii People v. Smart, 96 N.Y.2d 793 (2001) .......................................................................................... 36 People v. Solomon, 20 N.Y.3d 91 (2012) ...................................................................................... 19, 20 People v. Thomas, 201 A.D.2d 687 (2d Dept. 1994) .......................................................................... 21 People v. Townsley, 20 N.Y.3d 294 (2012) .................................................................................... 19, 20 People v. Wandell, 75 N.Y.2d 951 (1990) .......................................................................................... 20 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, APL-2013-00021 - against - AD Case No. 2008-09584 Suff. Co. Ind. No. 1135-2007 WENDELL PAYTON, Defendant-Appellant. -------------------------------------------------------------X PRELIMINARY STATEMENT This brief is filed in opposition to Payton’s appeal of his judgment of conviction entered, after a jury trial, in the County Court of Suffolk County (Hinrichs, J.) of one count of Robbery in the Second Degree. On October 6, 2008, he was sentenced as a prior violent felony offender to a determinate sentence of 13 years incarceration with 5 years post-release supervision. Payton’s accomplice, Darius Briggs, pleaded guilty to Attempted Robbery in the Third Degree in exchange for a sentence of one and one-third to three years incarceration. Defendant also filed a C.P.L. §440.10 motion challenging his conviction. That motion was denied in a decision and order dated June 7, 2010 (Hinrichs, J.). The Appellate Division, Second Department, in a decision and order dated September 9, 2010, granted defendant’s application for “leave to appeal from so much of the order of the Supreme Court, Suffolk County, dated June 7, 2010, as denied that branch of 2 his motion which was pursuant to CPL 440.10 …” Payton included (in his direct appeal) the denial of his C.P.L. §440.10 motion, although no motion to consolidate that appeal with his direct appeal was ever made or granted.1 1 Respondent did not object to the Appellate Division considering both appeals together. 3 QUESTION PRESENTED Though conflict can operate to deprive a defendant of effective assistance, reversible error only exists—even in the absence an inquiry by the court into a potential conflict—where defendant establishes the existence, or probable existence, of a conflict of interest that bears a substantial relation to the conduct of the defense. Where the record establishes that counsel afforded defendant effective assistance, but fails to show any evidence that counsel’s representation was affected by a potential conflict, is reversal required? 4 STATEMENT OF FACTS Payton was convicted of Robbery in the Second Degree for his participation on April 6, 2007, in an early morning robbery of Douglas DiNarte near the Atlantis Aquarium in Riverhead, New York. The defendants were apprehended a short time later while still in the car they used during commission of the crime. PRETRIAL HEARINGS2 A pretrial Wade hearing was conducted on October 11, 2007. The People called Police Officer Timothy McAllister, who testified to the showup identifications made by the victim following the robbery. Detective Frank Hernandez also testified to observations of the defendant that were consistent with the victim’s statements to police, including that a hat recovered from the perpetrators’ vehicle was not the one worn by Payton during the crime. A subsequent decision from the court denied suppression of the identification. A pretrial Huntley hearing was conducted on February 7, 2008. The People called Police Officer McDermott as the only witness at the hearing, following which the court denied suppression. The court held: In the Court’s view the People have established the voluntariness of the statement beyond a reasonable doubt. Clearly the roadside inquiry asking for license and identification is permissible. It is not under the law 2 Payton did not raise any issues on appeal concerning the court’s suppression rulings. 5 custodial interrogation. There is no requirement of the Miranda Warnings for the preliminary questioning that did take place. And, accordingly, I’m ruling that the statements are admissible (A.118-19; HH.38-39).3 THE TRIAL Gervin Pipersburgh testified that he had known Payton, whose nickname was “Wise,” for about three years (A.165; T.158). On April 5, 2007, Pipersburgh was looking to retrieve a watch from defendant, which he had borrowed from Pipersburgh about a month before (A.165, 200; T.158, 193). Pipersburgh arrived at a trailer park in Riverhead at about 6-6:30 p.m., driving his 1999 Cadillac DeVille to get there (A.166, 199-200; T.159, 192-93). He and Payton purchased some beer and did crack cocaine, which they had gotten from someone on Second Avenue at about 9 p.m. (A.167, 200; T.160, 193). The two got “high” (A. 167-69; T.160-62). Pipersburgh recalled that Payton was wearing white sweatpants, a dark sweat jacket, and a black or blue hat, and that appellant had some facial hair (A.177-78; T.170-71). Pipersburgh recalled that he was wearing a gray sweatsuit but did not have on a hat (A.179, 203; T.172, 196). When asked on cross- 3 “A” refers to appellant’s appendix, while “SA” refers to respondent’s supplemental appendix; primary references to the hearing and trial transcripts are included for the court’s convenience. 6 examination about his arrest photo from that night, Payton conceded that he had on a dark blue sweatsuit (A.204, 206; T.197, 199).4 The two then went looking for defendant’s girlfriend, who Payton said had money for him, which they were going to use to buy crack cocaine (A.170; T.163). She eventually showed up at the trailer park and gave Payton some money, which they then took to go purchase more drugs (A.170-71; T.163-64). They bought more drugs, then returned to the trailer park to use them (A.171; T.164). They left again looked for Payton’s girlfriend to get yet more money from her (A.171-72; T.164-65). Sometime after 4 a.m., the two men drove down Main Street in Riverhead, heading east toward the aquarium, with Payton driving Pipersburgh’s car (A.172, 209; T.165, 202). They ran into a mutual friend of theirs called “Rock” whose real name was Darius Briggs, but whose last name they did not know (A.172, 218, 238- 39; T.165, 221, 241-42).5 Briggs had been on his way to a gas station to get a beer (A.218, 236-37, 238; T.221, 239-40, 241).6 They got out of the car and spoke with Rock, who they had not seen for a while, as Rock had been in jail (A.172-74, 220; 4 The photo also showed Pipersburgh without a hat. 5 Briggs recalled that appellant was outside of the green Cadillac on the driver’s side while “Nate” was seated in the front passenger side (A.220; T.223). 6 Briggs testified that he was wearing a black wool hat, which he took off after getting into the car (A.229; T.232). 7 T.165-67, 223). Rock then got into the car with them and they continued to look for defendant’s girlfriend (A.173-74, 221; T.166-67, 224). The three friends briefly went back to the trailer park before returning to Main Street, where they passed a young Mexican-looking man (A.175; T.168). Payton said to Darius something to the effect that this was someone “they could get” and he pulled the car into a driveway across the street from the aquarium (A.175-76, 218-20; T.168-69, 224-26). Defendant and Rock then exited the car and walked is a westerly direction; the Mexican-looking individual [Douglas DiNarte] was walking in an easterly direction (A.176, 209; T.169, 202). Payton and Rock were away from the car for a little over 30 seconds (A.177, 180; T.170, 173). On April 6, 2007, Douglas DiNarte, a Salvadoran immigrant, had left his home at about 4:30 a.m. and was walking to the Laundromat on Main Street in Riverhead (A.305-06; T.118-19). As he was walking, two black men came out from a car parked by the social security office, which is near the aquarium (A.307- 08; T.120-21). One of the men was a little taller than DiNarte, had a beard, and was wearing dark clothes and a black and white cap (A.308-09, 334-35; T.121-22, 148-49). The second individual was a little smaller and “a little fat” (A.309; T.122). 8 Payton (who was wearing a hat) punched DiNarte in the face and put his hands in DiNarte’s pocket (A.309, 222-23; T.122, 225-26). Blood came streaming from DiNarte’s nose and some from his mouth (A.309, 419, 454; T.122, 309, 344). Briggs, the other assailant, also put his hands in DiNarte’s pockets, removed papers and stole DiNarte’s money--approximately $115 according to DiNarte and $12 according to Briggs (A.309-10, 222-23; T.122-23, 225-26). The perpetrators then got back into the car (with Payton driving and Briggs seated in the back) and left (SA.1, A.222-23; T.124, 225-26). Douglas went to the Laundromat and knocked on the door until a lady answered and asked him what happened (SA.1; T.124). He told her that he had been hit and his money taken, so she called the police (SA.1; T.124). Elizabeth Smith worked at the Laundromat at 57 West Main Street, Riverhead (A.339; T.97). On April 6, 2007, she had arrived at work at 4:40 a.m. (A.340-41, 348; T.98-99, 106). Just before 5:00 a.m., a Spanish guy loudly banged on the door and, after he persisted in banging on the door, Ms. Smith let him in (A.341; T.99). He appeared to be frightened and was bloodied around the mouth, his face was scratched and skin was coming off on the side (A.342, 347; T.100, 105). Ms. Smith recognized the man, who had a laundry bag with him, as someone who frequented the laundromat (A.342, 353; T.100, 111). When he spoke, the man 9 talked slowly, as if he were mentally challenged (A.342, 352-53, 354, 419; T.100, 110-11, 112, 309). Speaking in both Spanish and English, the subject conveyed that he had gotten hit and said, “Blacky, Blacky, Blacky”; he also said something about a car, but Ms. Smith had a difficult time understanding him (A.343, 350, 352; T.101, 108, 110). She called the police and told the 911 operator that the man had been robbed and beaten (A.344, 351; T.102, 109). Riverhead Town Police Officer Patrick McDermott was working in a marked police car on April 6, 2007, when at about 5:02 a.m. a report was broadcast of a possible robbery in front of Atlantis Marine World, East Main Street, Riverhead (A.359-60, 406; T.42-43, 89). Police Officer McDermott headed westbound on East Main Street to canvass for possible suspects; traffic in the area was light (A.361, 407-09; T.44, 90-92). Police Officer Tim McAllister advised him to be looking for two black males in an unknown vehicle (A.361, 391; T.44, 74). After committing the robbery, Payton and Rock had returned to the car and got in; defendant then drove them toward Second Street (A.180; T.173). Payton asked Darius how much money they got and Darius responded that it was “about 12 bucks” (A.181, 210, 224; T.174, 203, 227). After stopping a the Coastal gas station, where Payton bought a beer which they all drank, they then tried to 10 purchase more drugs, this time running into Greg Brunskill (A.181-82, 224-25, 255-56; T.174-75, 227-28, 258-59).7 Greg was a tall, older male, “sort of pudgy,” with little marks on his face; Greg was wearing a leather jacket and an Irish-style cap (A.182-83, 226; T.175-76, 229). Greg (who also was out looking for drugs [A.272-73, 282, 284; T.275-76, 285, 287]) got into the car, sitting in the back seat behind defendant, and they drove off (A.183, 227; T.176, 230).8 The four of them continued on their quest for drugs (A.184; T.177). They drove around the corner, briefly stopping; Greg refused to give Payton money for drugs (A.226, 274; T.229, 277). Then, defendant pulled out and, after traveling for only about a block and a half, they were stopped by the police on Northville Turnpike (A.170, 227, 276, 284; T.177, 230, 279, 287). Greg became irate that they had been pulled over (A.185, 277-78; T.178, 280-81). Everyone was soon taken out the car, one at a time (A.187, 277; T.180, 280). Police Officer McDermott had spotted the dark green four-door Cadillac, registration DJN8489, traveling north on East Avenue; he followed the car, which turned left on Northville Turnpike heading westbound (A.362, 409-10; T.45, 92- 93). The officer stopped the car by using his pull-over lights just before the 7 Brunskill testified that earlier that night he had been home drinking beer and was intoxicated. (A.270, 282, 288; T.273, 285, 291). 8 Brunskill identified the front passenger as “Nate” and the passenger already seated in back as “Rock” (A.275-76, 284, 292; T.278-79, 287, 295). 11 vehicle reached Roanoke Avenue (A.362-63, 367; T.45-46, 50). The stop was about eight minutes after the initial call about a possible robbery (A.410; T.93). It was about an eighth of a mile (five or six blocks) from the Laundromat to where Police Officer McDermott stopped the car (with the aquarium being about a quarter of a mile farther away) (A.367; T.50). After exiting his vehicle, Police Officer McDermott spoke with the driver of the Cadillac, who he recognized as someone he knew as “Wise”; the officer identified Payton in court as being the driver (A.368, 410, 188; T.51, 93, 181). The officer told defendant that he had been stopped for a broken driver’s-side mirror--as there was a broken driver’s-side mirror (A.369, 374, 378; T.52, 57, 61). When asked his name, defendant responded with some sort of Spanish-sounding name (A.369; T.52). There were also three passengers in the car; everyone remained calm, except for a passenger behind defendant (A.369; T.52). That person (Gregory Brunskill) was intoxicated, highly upset, crying and yelling (A.369-70, 187; T.52-53, 180).9 Police Officer Brian Clements responded to assist with the traffic stop (A.370, 384; T.53, 67). Police Officer McDermott described Payton as being taller than he was, thin, with a scruffy goatee, wearing a black baseball hat; the front passenger was a black male with somewhat lighter skin, shorter and with broader shoulders, clean shaven, 9 Brunskill was still loud and agitated when he was arrested (A.387-88; T.70-71). 12 whose name was Gervin Pipersburgh (A.371, 377; T.54, 60).10 The occupant behind Pipersburgh (Darius Briggs) was a clean shaven black male, very stocky, muscular, average height, with very short (almost skin tight) hair (A.372; T.55). Brunskill was a stocky black male with pock marks on his face, wearing a wool Irish beret-style cap (A.372; T.55). A black and white baseball hat was found in the rear window area of the Cadillac [see Defendant’s Exhibit A; A. 189-90, 205, 396, 398-99, 404, 405; T. 182-83, 198, 79, 81-82, 87, 88], but Pipersburgh testified that this hat had not been worn by anyone that night (A. 189-90, 412; T. 182-83, 95). Police Officer McDermott contacted Police Officer McAllister to bring the victim to the stop scene to try to make a possible identification (A.399; T.82). The police arrived at the Laundromat soon after the 911 call; they looked around and left with the victim (A.345, 353, 311; T.103, 111, 125). As they were driving, DiNarte saw the defendants’ car parked near the school/railroad tracks area (A.312; T.126). He saw four people in the car at that time (A.312; T.126). Police Officer McAllister drove up and stopped about 20 to 25 feet from Police Officer McDermott’s car (A.399; T.82). Street lighting and Police Officer 10 Police Officer McDermott testified in the Grand Jury that Payton had all dark clothes on, while a photo of defendant taken after his arrest showed he was wearing white pants (A.393-95; T.76- 78). The officer explained that it was defendant’s dark jacket that stood out as his prominent clothing feature (A.395; T.78). 13 McDermott’s take down lights illuminated the area so that victim could see the subjects (A.400-01; T.83-84). Each of the subjects was asked to leave the Cadillac (A.385-86; T.68-69). The first person removed from the car was the person who had hit DiNarte in the face; this subject—Payton—was still wearing the black and white cap (A.313-014; T.127-28). DiNarte identified the tall subject and the “little one” as the perpetrators of the actual robbery, the other individual having gone through his pockets (A.314; T.128).11 While DiNarte testified that the two actual assailants were the subjects seated in the back of the car [A.315, 335; T.129, 149], this contradicted his identification of Payton, whom he specifically recognized in part because of the black and white cap he was wearing--and no one else had such a cap on at that time. On redirect, DiNarte acknowledged that he did not recall where in the car each person was seated, only that they were all in there (A.336; T.150). After the victim identified the perpetrators, each was arrested (A.392; T.75). Payton was handcuffed after being brought toward the back of the vehicle and placed into Police Officer McDermott’s police car (A.386; T.69). Pipersburgh was handcuffed and placed into Police Officer Clement’s vehicle, as was Briggs (A.387; T.70). All four individuals were then taken to Riverhead Town Police 11 DiNarte acknowledged that he said that all four men in the car were the perpetrators because “they got into the car” but was clear that only two--Payton and Briggs--exited the car and accosted him (A.315; T.129). 14 Headquarters for processing (A.388; T.71). Detective Frank Hernandez photographed the defendants and inventoried their clothing and property-- including the money recovered from appellant (A.421-26; T.311-16).12 Again, the evidence reflected that only defendant had on the baseball cap (A.461; T.351).13 DiNarte also was taken to the precinct (A.315; T.129). Defendant Is Given New Counsel After his conviction at trial and before sentencing, which was scheduled for April 16, 2008, the court directed trial counsel, Robert Macedonio, Esq., to speak with Payton about a potential conflict of interest. Defendant’s trial attorney had become the subject of an ongoing criminal investigation (which, some eight months later, resulted in Payton’s December 2008 arrest for and guilty plea to Criminal Possession of a Controlled Substance in the Fifth Degree). As a result of the court alerting defendant to this development, new counsel was assigned to represent Payton and sentencing was adjourned. Newly appointed counsel then filed a post-verdict C.P.L. §330.30 motion, in which defendant claimed that Mr. Macedonio had operated under an actual conflict during the trial. 12 Examination of the money recovered from Payton yielded no latent prints for comparison (A.476; T.365). 13 Detective Hernandez later showed DiNarte a black and white baseball cap recovered from the back of the car; the victim indicated that it was not the hat worn by the assailant (A.456; T.346). 15 Defendant’s 330 Motion In June 2008, defendant filed an application pursuant to C.P.L. §330.30(1) to set aside the jury’s verdict on the basis that defendant had not been advised that defense counsel was being investigated by the Suffolk County District Attorney’s Office, which he alleged created a conflict of interest (A.488). Defendant’s motion, however, was based on pure speculation that Mr. Macedonio’s representation had been hampered by the fact that there appeared to be an investigation involving either Mr. Macedonio or his clients. The court (Hinrichs, J.) denied the motion in a decision and order dated October 3, 2008 (A.523). The court’s critical findings were: Here, as the minutes of the inquiry by the Court of the defendant on the record on April 16, 2008 make clear, the Court was of the opinion only that there was a potential conflict of interest regarding the continued representation of trial counsel. The Court now specifically holds that the mere execution of a search warrant at his office barely two weeks before jury selection does not rise to the level of an actual conflict of interest. Rather, it amounts to a potential conflict of interest, requiring the two step inquiry outlined above. Current defense counsel does not make any claim or showing in the instant motion that either the conduct of defendant's defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation. In the absence of any such showing as required by the second of the two inquiries outlined in People v. Abar, id, and having 16 considered the fully competent manner in which trial counsel represented defendant at trial, the Court specifically holds that trial counsel was not ineffective as a result of the potential conflict of interest (A.524). At sentencing the court reiterated its rejection of defendant’s claims: The Court presided at the trial. In the Court’s view, as I stated, it was done in a fully competent manner, the representation of Mr. Payton here, at trial. And for those reasons, consistent with the Court’s written decision, because there has been a -- the defendant has not shown that the conduct of the defense was affected by the operation of any conflict of interest (A.545; S.20). Defendant’s 440 Motion Defendant also brought an application pursuant to C.P.L. §440.10 ostensibly to set aside his conviction on the basis that he was deprived of effective assistance of counsel due to an alleged conflict under which his trial counsel had been operating. Though defendant made passing reference to setting aside his conviction, his application was actually an improper attempt at post-conviction discovery. Defendant again suggested that trial counsel operated under a conflict and filed his motion to try to develop evidence to support his claim. There remained no reason to believe, and nothing to suggest, that the search warrant application, any sealed plea agreement, cooperation agreement, or other documents pertaining to the investigation or prosecution of Mr. Macedonio had any bearing on his representation of defendant. Defendant did not argue or even 17 suggest that Mr. Macedonio’s criminal activities intertwined in any way with his own. The motion was denied in a decision and order dated June 7, 2010 (Hinrichs, J.). Defendant’s Conviction is Affirmed In a decision and order dated November 14, 2012, the Appellate Division, Second Department, affirmed defendant’s judgment of conviction. In a 3 to 1 decision, the majority found that “defendant has failed to come forward with any evidence establishing that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation.” The majority further observed that while they “share[d] our dissenting colleague’s concern that a criminal defendant’s right to the effective assistance of counsel never be compromised by the personal interests of the attorney representing him, we decline to adopt the per se rule advocated by the dissent, which would require reversal absent a showing of any effect which the conflict may have had on the representation, as expressly contrary to clear and established precedent” (citing People v Konstantinides, 14 N.Y.3d 1, 14 (2009); and People v. Abar, 99 N.Y.2d 406, 411 (2003) ). 18 POINT I PAYTON WAS AFFORDED EFFECTIVE REPRESENTATION, UNIMPAIRED BY ANY CONFLICT. The record in this case demonstrates that trial counsel conducted a vigorous defense on Payton’s behalf, unimpaired by an alleged conflict of interest. While it is correct that the Suffolk County District Attorney’s Office had commenced an investigation into alleged criminal wrongdoing by Payton’s trial attorney, there is nothing in the record to suggest that trial counsel was either aware of his being the target of an investigation or, more important, that his conduct of Payton’s defense was affected in the slightest. The record instead demonstrates that trial counsel conducted a vigorous defense, raising appropriate issues throughout the trial and pulling no punches in the process. In the absence of any proof that trial counsel was derelict in not trying to obtain a favorable plea or otherwise was deficient in his conduct of defendant’s defense at trial, defendant’s claim must be rejected. There are two circumstances where automatic reversal is required on appeal stemming from a violation of a defendant’s Sixth Amendment right to counsel: “(1) where trial counsel is not authorized to practice law or (2) where counsel is implicated in the crime for which the defendant is on trial” (citations omitted). United States v. Doe, 272 F.3d 116 (2d Cir. 2001), cert. denied sub nom., Findley v. United States, ___ U.S. ___, 123 S. Ct. 204 (2002); United States v. Levy, 25 19 F.3d 146 (2d Cir. 1994); compare Mickens v. Taylor, 535 U.S. 163, 122 S. Ct. 1237 (2002). Such plainly is not the case here. Further, where there is an actual conflict, “an adverse effect necessarily exists . . .” People v. Solomon, 20 N.Y.3d 91, 97 (2012). Thus, as this Court has analyzed, “[t]he cases in which a conviction has been upheld because the lawyer’s performance was not shown to be deficient were ones in which the lawyer was not subject to an actual conflict . . .” Id. at 97. “The ‘constitutional predicate’ for an ineffective assistance claim is, as the Supreme Court said in Cuyler [v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719 (1980)], a showing that the defendant’s counsel ‘actively represented conflicting interests’ (id.).” People v. Solomon, 20 N.Y.3d at 96. There are situations, of course, “in which the attorney’s own interests diverge from those of the client . . .” such that “the attorney’s fealty to the client is compromised.” United States v. Fulton, 5 F.3d 605, 609 (2d Cir. 1993) (case in which defense counsel was alleged to have committed crime related to that for which client stood trial), cited by People v Townsley, 20 N.Y.3d 294 (2012). In such instances, “[t]herefore, courts have held that the presumption of prejudice set forth in Cuyler applies as well to situations where the personal interests of the attorney and the interests of the client are in actual conflict.” United States v. Fulton, 5 F.3d at 609; see People v. Solomon, 20 N.Y.3d at 91. A defense attorney being implicated in the defendant-client’s wrongdoing is a clear illustration of this type of 20 disqualifying conflict as “ ‘a lawyer shall not accept employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own . . . personal interests’ ” (citations omitted). People v. Townsley, 20 N.Y.3d at 300. “The Supreme Court has held also that the mere possibility of a conflict of interest is insufficient to impugn a criminal conviction.” Rowe v. Miller, 299 F. Supp.2d 231 (S.D.N.Y. 2004), citing Mickens v. Taylor, 535 U.S. at 171-72, 122 S. Ct. 1237; and Cuyler v. Sullivan, 446 U.S. at 349-50, 100 S. Ct. at 1708. In the absence of an evident actual conflict, in order for a defendant to prevail on appeal “[d]efendant must then demonstrate that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on counsel’s representation. Stated differently, a defendant must establish that the potential conflict bore such a substantial relation to the conduct of the defense as to require reversal” (internal quotation marks omitted) (citations omitted). People v. McGillicuddy, 103 A.D.3d 1200, 959 N.Y.S.2d 341, 342-43 (4th Dept. 2013), quoting People v. Longtin, 92 N.Y.2d 640, 644 (1998), cert. denied, 526 U.S. 1114, 119 S. Ct. 1760 (1999); and People v. Solomon, 20 N.Y.3d at 95, citing People v. McDonald, 68 N.Y.2d 1, 9 (1986); see also People v. Ennis, 11 N.Y.3d 403, 410 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2383 (2009); compare People v. Wandell, 75 N.Y.2d 951 (1990) (Court found that absent 21 knowing waiver, defendant denied effective assistance of counsel due to his defense counsel’s concurrent representation of prosecution’s primary witness on unrelated civil matter). For purposes of this Court’s review, it has been “repeatedly held, ‘[w]hether a conflict of interest operates on the defense is a mixed question of law and fact and, as a result, [this Court’s] review is limited. [The Court] may disturb an Appellate Division determination on this issue only if it lacks any record support’ ” (citations omitted). People v. Konstantinides, 14 N.Y.3d 1, 10-11 (2009), quoting People v. Abar, 99 N.Y.2d 406, 409 (2003), and citing People v. Berroa, 99 N.Y.2d 134, 142 (2002); People v. Harris, 99 N.Y.2d 202, 210 (2002); and People v. Ming Li, 91 N.Y.2d 913, 917–18 (1998). Payton’s case is not the first in which this Court has been tasked with addressing the issue of whether a defense attorney’s own misdeeds impaired the attorney’s representation of a defendant. As this Court has found, that a defendant’s trial attorney was under criminal investigation or even under indictment while representing the defendant at trial does not warrant application of a per se rule of ineffective assistance of counsel. People v. Konstantinides, 14 N.Y.3d at 1 (rejecting per se rule mandating reversal in situations where defense attorney is accused of criminal misconduct directly related to representation of defendant); see People v. Thomas, 201 A.D.2d 687 (2d Dept. 1994) (claim that 22 trial attorney was under criminal indictment for felony while representing defendant and that this affected attorney’s performance not per se ineffective assistance of counsel); see Skinner v. Duncan, ___ F. Supp.2d ___, 2003 WL 21386032 at fn. 73 (S.D.N.Y. 2003) (“Armienti makes clear, however, that while the same prosecuting agency is necessary to find a conflict, it alone is not sufficient to demonstrate an actual conflict”), citing Beatty v. United States, 142 F. Supp.2d 454, 459 (S.D.N.Y. 2001); see also People v. Corniel, 308 A.D.2d 395 (1st Dept. 2003), lv. denied, 1 N.Y.3d 596 (2004), hab. corpus denied, ___ F. Supp.2d ___, 2007 WL 1649895 (S.D.N.Y. 2007); Reyes-Verjerano v. United States, 276 F.3d 94 (1st Cir. 2002) (not fatal conflict where defendant only shows that “his lawyer was under investigation and that the lawyer had some awareness of an investigation”); United States v. Washington, 46 Fed. Appx. 705, 2002 WL 31116146 (4th Cir. 2002), cert. denied, sub nom., Washington v. United States, 538 U.S. 938, 123 S. Ct. 1605 (2003) (“defendant does not prove a fatal conflict by simply showing that his lawyer was under investigation and that the lawyer had some awareness of an investigation”; “defendant must show that the conflict of interest adversely affected his lawyer’s performance”); compare People v. Ortiz, 76 N.Y.2d 652 (1990) (“our concern on this appeal is not with any professional impropriety but with whether defendant received the effective assistance of counsel guaranteed him by the State and Federal Constitutions”); but compare 23 United States v. Fulton, 5 F.3d at 611 (“per se rule applies when an attorney is implicated in the crimes of his or her client . . . ”). The record in this case does not even hint at any impairment of Payton’s defense. The conflict issue surfaced when, before sentencing (which was scheduled for April 16, 2008), the court directed trial counsel to speak with defendant about a potential conflict of interest. It came to light that a search warrant had been executed at the law office of Payton’s attorney, Robert Macedonio, Esq., this having occurred on or about January 23, 2008 [Appellant’s A3 (¶6, appellant’s affidavit in support of 330 motion)]. As a result of the court alerting Payton to this development, new counsel was assigned to represent Payton and sentencing adjourned. Newly-appointed counsel then filed a post-verdict C.P.L. §330.30 motion in June 2008, in which Payton claimed that Mr. Macedonio had operated under an actual conflict during the trial. Defendant’s motion, however, was based on pure speculation that Mr. Macedonio’s representation had been hampered by the fact that there appeared to be an investigation involving either Mr. Macedonio or his clients. In addressing the court’s denial of the motion, the court noted before sentencing that: The Court presided at the trial. In the Court’s view, as I stated, it was done in a fully competent manner, the representation of Mr. Payton here, at trial. And for those reasons, consistent with the Court’s written decision, because there has been a -- the defendant has not shown 24 that the conduct of the defense was affected by the operation of any conflict of interest (S.20). Thus, the critical issue in this case is whether a conflict compromised defense counsel’s ability to represent Payton. In the absence of an unwaivable conflict (which did not exist in this case), the dispositive issue was whether a conflict operated on Payton’s defense. Resolution of this issue depended on what trial counsel did (or did not do) on defendant’s behalf—and not on anything else. The court’s failure to address the possible conflict at an earlier time, therefore, was irrelevant insofar as trial counsel’s meaningful representation at trial belies any claim of demonstrable prejudice to defendant, or that Mr. Macedonio’s own entanglements bore any relation to the conduct of Payton’s defense. There is no reason to believe, and nothing to suggest, furthermore, that the search warrant application, any sealed plea agreement, cooperation agreement, or other documents pertaining to this Office’s investigation of and subsequent December 2008 plea agreement with Mr. Macedonio had any bearing on either his representation of Payton in February 2008 or the court’s assessment of that representation. Defendant’s fishing expeditions--both before and after sentencing-- for these materials were thus properly rejected.14 14 The Appellate Division, in fact, did not grant leave to appeal from that portion of his 440 denial pertaining to his attempt to obtain post-conviction discovery. 25 The trial record and trial counsel’s performance in this case speaks for itself insofar as establishing effective, conflict-free representation. Beatty v. United States, 142 F. Supp.2d at 459; People v. Carney, 179 A.D.2d 818 (2d Dept.), lv. denied, 80 N.Y.2d 894 (1992) (attorney afforded defendant meaningful representation despite attorney’s “secret” that he had been convicted of three misdemeanors and was suspended one week after the defendant’s trial was concluded). There simply is nothing to support any claim that trial counsel operated under a conflict that in any way affected his representation of defendant. See People v. Jordan, 83 N.Y.2d 785 (1994) (“Counsel’s failure to mention Ryhnes in his short, forcused opening trial statement . . . at best raised only a question of trial strategy” (citation omitted)); compare People v. Ennis, 11 N.Y.3d at 411 (“actions defendant contends that his trial counsel should have taken would not have advanced his defense”). Instead, the record, starting with discussions over a possible plea disposition, reflects vigorous advocacy on defendant’s behalf. Payton was charged with committing a robbery on April 6, 2007, wherein he and an accomplice forcibly took money from a Salvadoran immigrant outside of the Atlantis Aquarium in Riverhead, New York, only to be apprehended a short time later while still in the car they used during the commission of the crime. A pretrial Wade hearing was conducted on October 11, 2007, to determine whether the subsequent showup identification was unduly suggestive. Before the 26 hearing commenced, there was discussion on the record about Payton’s sentencing exposure and that he was not interested in pleading guilty—despite the fact that the codefendant (Briggs) had pleaded guilty and was going to testify against defendant (A.3-6; WH.2-5). See Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 1384 (2012); “[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused” [Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399, 1408 (2012)]—as was conveyed in this case: MR. MACEDONIO: Okay, Judge. No disposition. THE COURT: Okay. You’ve advised your client as to the offer? You’ve advised you client as to his exposure if he is convicted? MR. MACEDONIO: Judge, I’ve advised him as best I understand the law. At the present time, he’s charged with a class C violent crime which he -- based upon his NYSIIS that’s been turned over to me by the People, he has a prior violent conviction in his background, which would make him a second violent offender. That if convicted after trial, the Court would be required to sentence him from anywhere from seven up to fifteen years. The plea bargain limitations that are imposed in this state do not allow the People to amend down past a class D violent, that the range of sentencing on that is five to seven. 27 We’ve discussed other options we’ve discussed in chambers. He doesn’t want anything, he didn’t do it and wishes to proceed to trial. THE COURT: You want to go to trial, Mr. Payton? THE DEFENDANT: Yes, sir. I have no choice. I didn’t do it [A.3-4; WH. 2-3]. Then, before the pretrial Huntley hearing was conducted on February 6-7, 2008, there was again discussion on the record about the lack of an acceptable plea offer from the prosecution and that defendant remained disinclined to plead guilty15: MR. MACEDONIO: Judge, my client has indicated all along he’s not interested. I did speak with him briefly a few moments ago. He indicated he’s not interested. Is that correct? THE DEFENDANT: Yes, sir. MR. MACEDONIO: That the only disposition he would be interested in would be something in the line of time served. Which is obviously not available, nor authorized by the law, no matter what he was to plead to. THE COURT: All right. We’re just going to proceed to trial on the class C violent felony. And the sentencing range if convicted would be minimum of 7 years and maximum of 15 years would be the maximum sentence that the defendant would face if convicted. 15Compare Armienti v. United States, 313 F.3d 807 (2d Cir. 2002) (“The facts surrounding Armienti’s own refusal to pursue a plea agreement, however, negate the notion that it was a plausible alternative under the adverse effects standard.”). 28 In regards to the trial and by way of scheduling, what we’re going to do so is 10 a.m. tomorrow morning we’re going to have a as I understand a very brief Huntley hearing about an oral statement alleged to have been made by the defendant, as well as pre-trial Sandoval hearing. Then we’ll move into the jury selection process (emphasis added) (SA.3-4; HH.3-4). The trial then commenced on February 11, 2008—not because defendant was being encouraged to go to trial by his attorney, but because he found the plea offer unacceptable. Certainly there was no hint that counsel discouraged Payton from pleading guilty in order to protect his own interests. Compare United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984) (“It is difficult to see how counsel conflicted in this way could impartially have given Cancilla advice on whether or not to take a guilty plea, since counsel might have feared that acceptance of a plea would turn on Cancilla’s cooperation, which might lead to discovery of the link to counsel’s own activities”). There is also no basis for concluding that Mr. Macedonio attempted to get defendant to accept a disadvantageous plea offer. See Armienti v. United States, 313 F.3d 807 (2d Cir. 2002) (court also observed that attorney trying to curry favor with prosecution would be more likely to seek plea for client). Simply, the record is clear that all along--well before the search warrant was executed at Mr. Macedonio’s office--Payton was not interested in pleading guilty. What trial counsel did do, as the trial court found, was effectively represent defendant, presenting a cogent defense which highlighted factual inconsistencies in 29 witness testimony and probed the credibility of the witnesses who cooperated against the defendant. Mr. Macedonio displayed no reticence in pushing the People to sustaining its burden of having to prove defendant was guilty beyond a reasonable doubt. Further, trial counsel successfully argued in favor of the court giving an accomplice as a matter of law instruction as to Pipersburgh, who was not charged in the incident. Payton has not even suggested (much less established) how his defense should have been otherwise conducted. In this robbery case, of course, Payton’s guilt was supported by the close proximity of the stop of the perpetrators’ vehicle—both as to time and place—to the crime, the victim’s prompt identification testimony, and the testimony of every other occupant in the car, each of whom gave consistent testimony implicating Payton and accomplice Darius Briggs. Indeed, Gregory Brunskill, who entered the car shortly after the robbery and was not implicated in the crime, gave confirmatory testimony about an important piece of identifying evidence—that is, the black hat with white on it that Payton was wearing at the time of the crime (which he was still wearing when he was arrested) (A.275; T.278).16 16 Payton wore dark clothing from the waist up, had a beard, was thinner and taller than the other assailant, and was wearing a black hat with white on it--all as the victim described. When shown the photos of the other occupants, Brunskill confirmed that no one had worn the other baseball cap that was recovered from the rear of the car by police (A.275-76, 421-22; T.278-79, 311-12). 30 Even if Payton had merely been driving the car at the time of the stop (which was not the prosecution’s theory of the case), he still would not have been absolved of guilt. The evidence established that the group (Payton, Pipersburg, and Briggs) was looking for money to buy drugs and the victim appeared to them to be a vulnerable target from which to obtain that money. Pipersburgh and Briggs both related the conversation about spotting the victim before the robbery. Assuming one were to believe that Pipersburgh was the second perpetrator who confronted DiNarte (instead of Payton), Payton was driving, stopped the car so that they could rob DiNarte, waited for the two perpetrators to accost the victim, drove off afterward, and then was handed the proceeds of the robbery. That was more than sufficient evidence to support his conviction. See People v. Brun, 58 A.D.3d 862 (2d Dept. 2009). Despite the overwhelming evidence against Payton, trial counsel was far from passive in his conduct of the defense. Rather than “pulling punches” to avoid antagonizing the District Attorney’s Office (as defendant notes that conflict- impaired counsel might do), trial counsel accused the District Attorney’s Office of trying to manufacture evidence--tantamount to an accusation of sharp practices: I’m not sure whether it’s becoming common practice in the DA’s office to start having games like this. When the case is what that is now they’re going to start to introduce stuff in December. Now all of a sudden midway through trial this alleged statement that’s made (emphasis added) (SA.6-7; T.210-11). 31 Not only did defense counsel take issue with the District Attorney’s Office, Mr. Macedonio’s opening statement and closing arguments further reflect that he was not pulling any punches. In his opening statement, defense counsel argued, inter alia, that: • How can four people be identified of committing a crime when minutes earlier he told a police officer two people beat me up and took my money? You’ll learn during the course of this case that one of the individuals that got into the car wasn’t even in the car at the time the alleged robbery occurred. He was picked up after. Yet, he was still identified. • He stood up there, told you they were smoking crack, went to buy more crack. That is to prejudice you against my client to show motive to commit robbery. You will hear no evidence of any drugs found in that car. None. No crack. No weed. No marijuana. Nothing. There will be no testimony any drugs were found in that car. There will be no evidence that any of the individuals had drugs on them. There will be no evidence of any crack pipes. No beer cans. No one arrested for driving while under the influence of any drugs or alcohol. • We have a guy that gives a statement says four people did this robbery. But only two people did the robbery. That’s where the missing pieces are going to come in. That’s where the police are going to play little games. • I don’t think Mr. DiNarte has any idea who robbed him. That, ladies and gentlemen, they did not have enough to pin a charge on somebody the police chose to pin the charge on. They’re going to call this litany of defendants, people with prosecution deals. We went over on voir dire selection, called them rats who got deals to testify. That’s what they’re going to call in here to try to convince you my client committed this crime. • So they’re going rely solely upon a cooperating witness who clearly 32 has a benefit to get on that witness stand and lie to you, point the finger at him. Because evidence will come out that witness was given a deal by the D.A. to do that. That’s his motive to come to this court and lie to you. They made a deal with the devil up front and they want to sell it to you now (emphasis added) (SA. 14-19; T. 35-39). Defense counsel’s summation shows that he did not moderate his tone or change his themes during the trial. Instead, counsel closed as he opened—with an attack on prosecution-witness credibility: • I said to you during open statements that he made a deal with the devil and his job now is to sell it to you. • I took the opportunity to review each and every word of the witnesses that the prosecution has called. • During the direct examination he [Pipersburgh] paints himself as being a 23 year married man, three children, proud father of a son home from Iraq. Leaves out the fact that he left his house to go get crack, was driving around 6 or 7 o’clock at night. Almost 12 hours. • Why is it two weeks after this crime that a detective goes and notices the black and white cap in the back of Mr. Pipersburgh’s vehicle? Two weeks. This cap. Black and white. Victim described black and white cap. All black. We have a black and white cap in the back of the vehicle. So you say sloppy police work. I don’t know. • That’s where this investigation started. That’s where his investigation ends. He [the police officer] had no idea who committed this crime. Frankly, I don’t think he cared. He was arresting two individuals and two individuals were going home. From that point in, from that point on it’s been how are we going to obtain convictions. Convictions. That’s what they want. • So what do we do with Mr. Briggs, we cut him a deal. He’s home on parole from upstate jail one day. He doesn’t want to go back. He’s the weak link in the chain so we can get to him. They cut him a deal 33 within days of his arrest to give another statement, a statement that implicates Mr. Payton. How do we get him to do that. Make him a sweetheart deal. • Don’t buy it. We deserve better. Reasonable doubt. Mr. Payton deserves better. He deserves a fair police arrest. He deserves a fair investigation of this crime. He deserved witnesses to come in that don’t have motive to lie. He deserves each of yous (sic) to go back and say you know what, we’re not going to accept it, it doesn’t hold water, the square peg does not fit into the round hole (emphasis added) (SA. 22-34; T. 405-17). Given the record in this case, moreover, it was not incumbent upon the trial court, in deciding appellant’s 330.30 motion, to make any greater inquiry or to conduct a hearing into the alleged conflict. Trying to discern exactly what Mr. Macedonio knew and when did he know it would not have revealed anything about his performance at trial—which the court had personally observed.17 Certainly, the court properly alerted Payton to the possibility of a conflict when it became aware that a potential conflict may have existed. Compare People v. Faulkner, 55 A.D.3d 924 (2d Dept. 2008), lv. denied, 11 N.Y.3d 924 (2009) (no evidence that Supreme Court was aware of potential conflict which would have necessitated court’s inquiry on record as to whether defendant consented to his attorney’s continued representation). It directed trial counsel to inform Payton of the potential conflict and afforded defendant the opportunity to have new 17 At most, a hearing may have confirmed that Mr. Macedonio was aware that he was being investigated—a fact that we assume for purposes of this appeal. A hearing, of course, also may have shown that counsel was not aware during the trial that he personally was being investigated. 34 representation (A.27-28). That this inquiry had not occurred sooner--that is, before the trial--is irrelevant where, as here, nothing in the record suggests that a conflict of interest had any substantial relation to the conduct of the defense.18 People v. Harris, 99 N.Y.2d 202 (2002); People v. Abar, 99 N.Y.3d at 411 (Court has “not reversed a conviction absent a showing that an alleged conflict operated on the defense”). Thus, as this Court has noted, “[w]hile generally both defense counsel and the prosecution had a duty to recognize potential conflict situations, and neither side apparently was aware of the conflict, what is significant is that the conflict did not operate on defense counsel’s representation.” People v. Harris, 99 N.Y.2d at 211. Because the record contradicts any suggestion that Mr. Macedonio’s own concerns operated on the defense he provided, the absence of any greater inquiry was harmless. As this Court had delineated: A trial judge who is aware of a situation where a conflict may exist has an obligation to “conduct a record inquiry of each defendant whose representation is potentially conflict-ridden in order to ascertain whether he or she 18 Mr. Macedonio remained uncharged throughout the pendency of his representation of Payton. The criminal investigation ultimately resulted in Macedonio’s December 2008 arrest for and guilty plea to Criminal Possession of a Controlled Substance in the Fifth Degree. See Matter of Robert A. Macedonio, 66 A.D.3d 211 (2d Dept. 2009) (“On December 9, 2008, the respondent pleaded guilty before the Honorable James Hudson, in County Court, Suffolk County, to one count of criminal possession of a controlled substance in the fifth degree, a class D felony, in violation of Penal Law § 220.06(5)”). These facts are also discussed in the litigation concerning defendant’s C.P.L. §440.10 motion. 35 ‘has an awareness of the potential risks involved in that course and has knowingly chosen it’ ”. However, the failure to make such an inquiry is reversible error only when defendant has established the existence, or probable existence, of a conflict of interest, “which bears a substantial relation to ‘the conduct of the defense’” (internal citations omitted). People v. Harris, 99 N.Y.2d at 211; see People v. Konstantinides, 14 N.Y.3d at 10, 14; People v. Abar, 99 N.Y.3d at 409 (“‘defendant must show that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation’ ” (citation omitted) ). The lack of an earlier inquiry, of course, had no bearing on trial counsel’s performance, which was unaffected by concerns arising from his own misconduct. While Payton argues that there was a failure on the part of the People to raise the conflict of interest issue before trial, the trial prosecutor had no knowledge about the then-pending investigation.19 Even if he had been so aware, at that time—at which no charges had been filed—disclosure could have potentially compromised the investigation. Concededly, had defense counsel believed that he was the subject of a criminal investigation, he too would have had a duty to raise the conflict issue. Despite the belated inquiry, the relevant consideration is whether the alleged conflict operated on Payton’s defense—a showing that defendant failed and still fails to make. 19 Respondent recognizes that the fact that the trial prosecutor was not aware at the time of trial that an investigation had ensued [see A.540; S.15] is irrelevant to whether the District Attorney’s Office, having such knowledge, could have alerted the court to the potential conflict. 36 Counsel was an aggressive, vigilant advocate for Payton. “He has not identified any other factor or any ‘different theories and tactics’ that should have been pursued . . . such that the potential for conflict actually operated.” People v. Recupero, 73 N.Y.2d 877, 879 (1988), quoting People v. Baffi, 49 N.Y.2d 820, 822 (1980). Thus, the record shows that defense counsel afforded defendant meaningful representation, without even a hint that a potential conviction was looming or operating on his representation. See People v. Monette, 70 A.D.3d 1186 (3d Dept.), lv. denied, 15 N.Y.3d 776 (2010) (“Assuming, without deciding, that defendant made out a potential conflict of interest, the prior criminal history of the witness was explored in his testimony and defense counsel conducted a vigorous cross-examination, eliciting from the witness details on how he could have learned of the robbery absent admissions by defendant and his contacts with investigators. Defendant, accordingly, has not shown that the alleged conflict operated upon his defense in any way”). As the Appellate Division held, the “suggestion that the defendant’s trial counsel in this case procured a more favorable disposition with regard to his own charges by failing to zealously represent the defendant at trial is unsupported by the record and is manifestly inconsistent with the evidence of meaningful representation afforded by trial counsel, who provided vigorous and competent representation to the defendant at every stage of the proceedings” (citations 37 omitted). People v. Payton, 100 A.D.3d at 787-88; see People v. Smart, 96 N.Y.2d 793, 795 (2001) (“review of the trial transcript reveals that defendant’s counsel mounted a vigorous defense . . . defendant’s attorney forcefully challenged the victim’s veracity and character in the opening statement, during cross-examination of the victim, through the presentation of a defense witness and in the closing argument . . . There is no indication that defense counsel’s prior contact with the victim deterred him from pursuing any trial strategy”). That defendant was convicted stemmed only from his own guilt in the matter. 38 CONCLUSION Circumstances may arise in which a defense attorney fails to afford a defendant meaningful assistance because of some concern that his or her own misconduct is under scrutiny by the agency prosecuting the attorney’s client- defendant. In this case, however, there is no basis for concluding that trial counsel, at the time of trial, was cognizant that he himself was being investigated. More important, even if Mr. Macedonio had some insight into why a search warrant had been executed at his law office, there is not a scintilla of evidence that Mr. Macedonio’s representation of Payton was adversely affected. Rather, the contrary is demonstrated by the record, which reflects that trial counsel conducted a vigorous and thorough defense on defendant’s behalf—despite the overwhelming evidence against Payton. Based on the foregoing, defendant’s judgment of conviction should be affirmed. DATED: April 17, 2013 Riverhead, New York Respectfully submitted, THOMAS J. SPOTA District Attorney of Suffolk County _____________________________ By: GLENN GREEN Assistant District Attorney Of Counsel COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, CERTIFICATION - against - AD Case No. 2008-09584 Suff. Co. Ind. No. 1135-2007 WENDELL PAYTON, Defendant-Appellant. -------------------------------------------------------------X I, GLENN GREEN, ESQ., an attorney admitted to practice in the State of New York, hereby certifies that the digital filing of Respondent’s Brief required by sections 500.2, 500.12[h] and 500.14[g] of the rules are in PDF format and are identical to the filed original printed material. DATED: April 17, 2013 Riverhead, New York ______________________________ GLENN GREEN Assistant District Attorney Of Counsel to THOMAS J. SPOTA District Attorney, Suffolk County Attorney for Respondent