The Third Department, reversing defendant’s conviction, determined that the public defender’s office represented both the defendant and the confidential informant (CI) creating a conflict of interest. Although the issue was apparently not preserved, the appellate court considered the issue in the interest of justice:
“A defendant is denied the right to effective assistance of counsel guaranteed by the Sixth Amendment when, absent inquiry by the court and the informed consent of [the] defendant, defense counsel represents interests which are actually in conflict with those of [the] defendant” … . “Discussions of the effect of a lawyer’s conflict of interest on a defendant’s right to the effective assistance of counsel distinguish between a potential conflict and an actual conflict” … . “An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed and, in such situations, reversal is required if the defendant does not waive the actual conflict. In contrast, a potential conflict that is not waived by the accused requires reversal only if it operates on or affects the defense” … .
Here, the People concede that the Public Defender’s office was simultaneously representing both defendant and the CI during the pendency of this criminal action, and defendant and the CI had opposing interests. Inasmuch as defendant never waived the conflict, reversal of the judgment is warranted … . People v Palmer, 2019 NY Slip Op 05228, Third Dept 6-27-19