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THE EVIDENCE AT THE HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION DID NOT SUPPORT THE ALLEGATION DEFENDANT’S FRIEND PAID DEFENDANT’S LEGAL FEES CREATING A CONFLICT OF INTEREST FOR DEFENDANT’S ATTORNEY (FIRST DEPT).

The First Department determined Supreme Court properly denied defendant’s motion to vacate his conviction on the ground his attorney had a conflict of interest which deprived him of effective assistance of counsel. The case had gone to the Court of Appeals which held the defendant was entitled to a hearing on the motion:

The record supports the hearing court’s factual determination that defendant’s friend Salaam, whom his counsel represented on an unrelated criminal case, and who had initially been a suspect in the murder of which defendant was convicted, did not pay defendant’s legal fees. At the hearing, defendant did not meet his burden of proving the necessary facts by a preponderance of the evidence … . The hearing evidence showed that Salaam physically handed cash to defendant’s attorney for his retainer and for much of the balance of the fee, but that there was no proof as to the ultimate source of the cash. Counsel credibly testified that he viewed Salaam as his contact person and believed that the legal fees were being collectively raised by a group of defendant’s friends and relatives, including Salaam. The court’s finding was also supported by defendant’s recorded calls made while incarcerated, and the fact that Salaam always delivered cash to the attorney while accompanied by other friends of defendant. The evidence also shows that defendant chose and hired the attorney. People v Brown, 2022 NY Slip Op 06889, First Dept 12-6-22

Practice Point: Defendant alleged his friend paid his legal fees. Defendant’s friend had been represented in another criminal matter by defendant’s attorney and was a suspect in the murder of which defendant was convicted. The evidence at the hearing on defendant’s motion to vacate his conviction did not support the allegation defendant’s friend was the source of the funds paid to defendant’s attorney. Therefore defendant’s argument he was deprived of effective assistance because of his attorney’s conflict of interest was not supported by the evidence.

 

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