People v. Wendell Payton


AD2 order dated November 14, 2012, affirming judgment of conviction and CPL 440.10 motion denial. Decision below: 100 AD3d 786, 955 NYS2d 72. Miller (AD dissenter), J., granted leave January 10, 2013.


Whether the defendant was deprived of conflict-free representation when, prior to and during trial, and unbeknownst to defendant, defense counsel was subject to a criminal investigation by the same prosecutor’s office as the one prosecuting the defendant; whether a prong-two showing pursuant to Strickland was required under these circumstances.

Issue before the Court: Did the fact that defense counsel was under investigation by the same DA’s office trying the defendant require automatic reversal without regard to whether the conflict operated? 


Held: No.  An actual conflict of interest (requiring automatic reversal) would exist if the defense attorney was implicated in the crimes for which his client stood trial, but that was not the case here.  To prevail the defendant must show that the conduct of the defense was affected by the operation of the conflict or that the conflict operated on the representation.