ORDERED that this motion by defendant for an order pursuant to CPL § 440.10 (1) (g) and (h) and § 440.20 (1) vacating the judgment of conviction for Murder in the Second Degree, or, in the alternative, vacating the sentence of 25 years to life and ordering a new sentence upon the grounds, inter alia, that defendant was denied the effective assistance of counsel is considered by the Court and is determined as follows:

On March 27, 1983, Michael LaPinta was murdered in his home in West Islip, New York. Charged in that murder were defendant, Leonard Crociata, the victim's brother-in-law and Marie LaPinta, the victim's wife. After a joint trial of the defendants before a jury, each was convicted of the crime of Murder in the Second Degree and each was sentenced to an indeterminate period [*2]of imprisonment of 25 years to life. During the course of the proceedings that culminated in the judgment of conviction, the defendants, who were siblings, were represented by attorneys from the same law firm, Gallop, Dawson, Kimeleman and Clayman from New York City. Samuel Dawson was lead counsel and represented defendant Leonard Crociata. His partner, Steven Kimeleman, represented defendant Marie LaPinta. At arraignment, the court questioned counsel about the joint representation of defendants in response to which counsel noted that they had discussed a possible conflict of interest with their clients. It does not appear that there was a specific inquiry of the defendant himself or any indication that he understood the nature of the potential conflict of interest or the effect it would have on his defense.^[FN1] Further, it does not appear that defendant agreed to waive any potential claim of conflict of interest on the record in court.

It should be noted that by a prior order of this Court dated April 26, 2005, this Court granted the motion of co-defendant Marie LaPinta for an order vacating her judgment of conviction upon the ground that she was denied the effective assistance of counsel. At the time, the People did not oppose the granting of the application. After the vacatur of her conviction, defendant Marie LaPinta plead guilty to the crime of Manslaughter in the First Degree.

In support of his present motion, defendant raises essentially the same argument raised by co-defendant LaPinta, that is, that the representation of the co-defendants by attorneys from the same law firm was a conflict of interest that was not fully explored by the trial court and that this conflict affected the nature of the defense interposed by defendant. Once again, the People have not opposed the application by defendant and acknowledge that the Court, in the interests of justice, should vacate defendant's conviction and order a new trial. They agree that "a clear and unequivocal conflict of interest existed in the joint representation of defendants by the same law firm."

The New York State and Federal Constitutions guarantee the right to effective assistance of counsel, "meaning representation that is reasonably competent, conflict-free and singlemindedly devoted to the client's best interests" (People v. Longtin, 92 NY2d 640, 644, 684 NYS2d 463, see also, People v. Ortiz, 76 NY2d 652, 563, NYS2d 20). Consequently, a lawyer may not represent two clients whose interests are in conflict, nor may a lawyer represent a defendant as well as the chief prosecution witness against him (People v. Wandell, 75 NY2d 951, 555 NYS2d 686). The Trial Judge "has a duty to protect the right of an accused to effective assistance of counsel" (People v. Gomberg, 38 NY2d 307, 313, 379 NYS2d 769; People v. Macerola, 47 NY2d 257, 263, 417 NYS2d 908). Before the trial begins, "it is the responsibility of the Trial Judge, independent of the attorney's obligation to inform his clients of any conflicting interests which may hinder his representation, to ascertain, on the record, whether each defendant [represented by the same attorney] has an awareness of the potential risks involved in that course and has knowingly chosen it' " (People v. Macerola, supra at p. 263 quoting People [*3]v. Gomberg, supra , at p. 313). In People v. Mattison (67 NY2d 462, 503 NYS2d 709), the Court held that absent an inquiry by the court and a knowing consent by the defendant, an attorney may not represent a criminal defendant at trial at which a co-defendant whose plea bargain—including the promise to testify against defendant—was negotiated by a partner in the same firm.

Here, it is acknowledged by all that there was no Gomberg inquiry made of defendant prior to trial regarding the potential for conflict of interest by the joint representation of defendant and his co-defendant by the same law firm. Therefore, it cannot be said that defendant knowingly consented to the continued representation by counsel under those circumstances. This failure to conduct a Gomberg inquiry prior to the start of trial was error. However, the question remains as to whether the error warrants a vacatur of the conviction. The Court's inquiry on an application such as this does not stop at the finding that a Gomberg inquiry was not made since it is not sufficient for a defendant seeking to vacate a judgment of conviction to establish that a conflict of interest existed. In order to prevail on a claim of ineffective assistance of counsel, defendant must show that "the conduct of his defense was in fact affected by the operation of the conflict of interest," or that the conflict "operated on" the representation (People v. Alicea, 61 NY2d 23, 31, 471 NYS2d 68). In other words, defendant must establish that the potential conflict has a substantial relation to the conduct of the defense (People v. Recupero, 73 NY2d 877, 879, 538 NYS2d 234).

Here, it is clear that certain defenses that were potentially available to each of these defendants during the trial of this action were not presented to the jury. As the Court noted in its prior decision, a conflict free representation of defendant LaPinta would have offered evidence that she was acting under the influence of extreme emotional disturbance resulting from years of abuse at the hands of her husband. Such evidence might have supported a request to the trial court that the jury be charged to consider the lesser included offense of Manslaughter in the First Degree. However, no such defense or request was interposed by counsel for defendant LaPinta. The jury was instructed to find defendant LaPinta either guilty of Murder in the Second Degree or not guilty. Defendant Crociatta, on the other hand, requested a down charge to Manslaughter in the First Degree. Defendant argues that the decision by counsel for defendant LaPinta to forego the down charge to Manslaughter in the First Degree was effectively, a directed verdict of guilty against him. He contends that it would have been logically impossible for the jury to convict him of the lesser charge of Manslaughter while convicting defendant LaPinta of the greater charge of Murder. According to defendant, "had truly independent attorneys presented readily available evidence of Mrs. LaPinta's years' long victimization at the hands of Mr. LaPinta and requested the appropriate down charge of Manslaughter on her behalf, the jury would have likewise convicted (defendant) of Manslaughter for confronting an enraged Mr. LaPinta while acting as the loving brother who came to the aid of his battered sister" (Affirmation in support of motion, p. 7).

Defendant and his co-defendant had distinctly different evidence presented against them and very different facts that they could have offered to support the defenses each one might have [*4]raised at trial. Certainly, it appears that counsel for defendant LaPinta did not attempt to mitigate her involvement in the crime itself nor did he raise any issue regarding her ability to form the requisite intent necessary to be found guilty of murder in the second degree. These were defenses that were available only to Mrs. LaPinta and not available to co-defendant. However, the failure of counsel for defendant LaPinta to raise this defense clearly impacted defendant Crociatta and his ability to argue his case to the jury. Given the fact that these defenses were not raised at trial by counsel from the same law firm as the attorney representing co-defendant, the Court is compelled to conclude that there was an actual conflict in the representation of defendant, that defendant was prejudiced by this representation, and that defendant was denied his right to effective representation by counsel during the trial of this indictment. Thus, defendant is entitled to the vacatur of his judgment of conviction.

Turning to the specific relief sought by defendant, he moves pursuant to CPL § 440.10 subd 1 (g) and (h) for an order vacating his judgment of conviction for Murder in the Second Degree upon the ground that there has been new evidence discovered since the entry of judgment and upon the ground that the judgment was obtained in violation of her right to the effective assistance of counsel. CPL § 440.10 provides in relevant part that where the Court grants a defendant's application to vacate the judgment of conviction, the Court, with one exception, must vacate the judgment and dismiss the accusatory instrument or order a new trial. The one exception to this rule is where the motion is based upon the existence of newly discovered evidence. Where the Court finds that there is newly discovered evidence and that the newly discovered evidence creates a probability that had such evidence been received at trial the verdict would have been more favorable to the defendant, the Court may, with the consent of the People, modify the judgment by reducing it to one of a lesser included offense. There is nothing in the papers presented to the Court which would constitute newly discovered evidence and consequently, defendant's motion to the extent it is based upon this argument, is denied. However, to the extent the application is based upon defendant's claim that he was denied the effective assistance of counsel, the motion to vacate the judgment is granted and a new trial is ordered. For the reasons stated previously, the Court is convinced that the representation of defendant and his co-defendant by attorneys from the same law firm represented a conflict of interest, that defendant was not adequately made aware of the scope of the conflict and that the conflict effected the nature of the defense interposed during the trial of this indictment. Accordingly, the motion is granted to the extent that the previously entered judgment of conviction is vacated and a new trial is ordered

However, to the extent that defendant's motion seeks to set aside the sentence imposed pursuant to CPL § 440.20, there is no basis for that relief. CPL § 440.20 applies only in instances where an issue is raised concerning the propriety of the sentence imposed (see, People v. Cooks, 67 NY2d 100, 500 NYS2d 503). Here, the sentence of a indefinite term of imprisonment of 25 years to life was entirely proper based upon defendant's conviction of Murder in the Second Degree. Therefore, the relief sought by defendant on this basis must be denied. [*5]

Finally, it must be noted that the People have consented to the vacatur of defendant's conviction. As in the case of co-defendant Marie LaPinta, the People are to be commended for their recognition of the merits of defendant's application. As the Court of Appeals of this State has noted, the role of the District Attorney is unique in some respects.

"Unlike other participants in the traditional common-law adversarial process, whose more singular function is to protect and advance the rights of one side, a District Attorney carries an additional and more sensitive burden. It is not enough for him to be intent on the prosecution of his case. Granted that his paramount obligation is to the public, he must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, his mission is not so much to convict as it is to achieve a just result (Berger v. United States, 295 US 78, 88, 55 SCt 629, 633, 79 LEd 1314; People v. Petrucelli, 44 AD2d 58, 59, 353 NYS2d 194; Code of Professional Responsibility, EC 7-15)." (People v. Berger, 51 NY2d 390, 434 NYS2d 206).

Here, the District Attorney has worked diligently with counsel and this Court to insure the achievement of a just result.

Accordingly, the motion by defendant is granted solely to the extent that the judgment of conviction of defendant for Murder in the Second Degree is vacated and a new trial is ordered. Defendant is to be remitted to the Supreme Court, Suffolk County for further proceedings on this indictment.

Dated: MARCH 13, 2007

J.S.C.