Court’s Failure to Inquire About Potential Conflict of Interest and Failure to Follow Statutory Procedure for Jury Note Did Not Require Reversal

The Third Department determined the trial court’s failure to directly inquire into defendant’s awareness of the risks associated with his attorney’s potential conflict of interest and the trial court’s failure to follow the statutory procedure with respect to a note from the jury during deliberations did not require reversal:

Early in these proceedings, defendant’s trial counsel informed County Court of a potential conflict of interest based upon the prior representation of a prosecution witness by another attorney in counsel’s law firm. Although counsel informed the court that defendant had no objection, County Court erred by failing to directly inquire into defendant’s awareness of the potential risks and  his willingness to waive any  potential conflict … . * * *

While the better practice would  have  been  for County  Court to read the note on the record prior to responding to it and we do not condone the court’s curtailment of counsel’s argument, the record reflects that counsel was aware  of the specific content of the note and  we  are satisfied that counsel had  a full opportunity to explain his position as to the meaning  of “duly served.”  Under  these circumstances, defense counsel can be  said to have meaningfully participated in the response to the note… .  People v Cooper, 104749, 3rd Dept, 6-6-13