THE PEOPLE &C., RESPONDENT, v. JASON ALLEN, APPELLANT.
88 N.Y.2d 831, 666 N.E.2d 1351, 644 N.Y.S.2d 478 (1996).
April 30, 1996
2 No. 106(1996 NY Int. 98)
Decided April 30, 1996
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Scott M. Karson, for Appellant.
Michael J. Miller, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant was tried and convicted of grand larceny, among other
things, in connection with his forging of a mortgage satisfaction
which he then used to obtain a $1.7 million bank loan. When the People
announced their intention to call Matthew Dollinger--outside counsel
for the bank's title insurer--to testify at defendant's trial, defense
counsel informed the court and prosecutor that he and Dollinger
represented each other in matters unrelated to defendant's
prosecution. The Assistant District Attorney handling the case agreed
not to elicit any testimony from Dollinger about his relationship to
defense counsel and Dollinger proceeded to take the stand.
In arguing that the trial court's failure to conduct any further
inquiry in accordance with People v Gomberg (38 NY2d 307) constituted
reversible error, defendant overlooks the well- established principle
that the mere existence of a conflict or potential conflict between
defense counsel and a prosecution witness, standing alone, does not
automatically result in the reversal of a conviction (People v
Lombardo, 61 NY2d 97). Rather, in order to establish that reversible
error occurred, defendant must show that "the conduct of his defense
was in fact affected by the operation of the conflict of interest"
(People v Ortiz, 76 NY2d 652, 656-657; see also, People v Recupero, 73
NY2d 877, 879). No such showing was made in this case (compare,
People v Krausz, 84 NY2d 953).
Defendant's contention that a telephone conversation he had with his
former attorney during which he acknowledged that he had fraudulently
used the former attorney's notary stamp without the attorney's
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. JASON ALLEN, APPELLANT.
This memorandum is uncorrected and subject to revision before publication in the New York
Defendant was tried and convicted of grand larceny, among other things, in connection with
When the People announced their intention to call Matthew Dollinger--outside counsel for the
The Assistant District Attorney handling the case agreed not to elicit any testimony from
In arguing that the trial court's failure to conduct any further inquiry in accordance with
Defendant's contention that a telephone conversation he had with his former attorney during
We agree with the Appellate Division that defendant failed to satisfy his burden of proving
Finally, defendant's argument that the trial court's warning about the possibility of a
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
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