AD1 order dated June 2, 2011, affirming judgment of conviction. Decision below: 85 A.D.3d 409, 923 N.Y.S.2d 544. Lippman, Ch.J., granted leave July 17, 2012.

ISSUES PRESENTED: (1) Whether there was a waivable conflict of interest created by an unrelated criminal case pending in the same county against one of defendant’s two attorneys. (2) Where defendant was on trial for killing his girlfriend, whether it was error to admit defendant’s years-earlier journal entries expressing hostility towards two other women. (3) Prosecutor’s summation

Issues before the Court:  (1) the adequacy of the Gomberg inquiry; (2) whether, in a murder prosecution where it was alleged that the defendant killed the victim after she ended thier relationship, it was error to introduce journal entries written by the defendant over a six-year period expressing his mysogynistic "bad" thoughts about two former girlfriends. 

Held:  All six judges (Judge Rivera took no part) agreed that error occurred but that it did not require reversal.  Their reasoning with respect to the errors differed. As to the first issue, Judges Lippman, Graffeo and Smith would require a more probing Gomberg inquiry, following federal conflict-waiver protocol.  As to the second, they would analyze "bad thought" evidence as Molineux.  Judges Abdus-Salaam, Pigott, and Read, while also concurring in the result, saw no need to monkey with existing Gomberg jursiprudence, nor would they sweep bad thought evidence under the Molineux umbrella.  They would limit Molineux to bad acts. 

CAL Observes: While the differing positions and judicial philosphies on display make for interesting reading, it is all dicta in the end, as neither group found that the trial court's errors warranted reversal. In any event, at least with respect to  the second issue, since evidence must be relevant whether analyzed as Molineux or not, there does not seem to be much practical difference in the end.  Both camps found the journal entries inadmissible, though the error harmless.