68 N.Y.2d 1 (1986)

An attorney’s concurrent representation of a criminal defendant and the victim of the alleged crime constitutes a conflict of interest requiring judicial inquiry and informed consent from the defendant to ensure effective assistance of counsel.

Summary

James McDonald was convicted of arson. His attorney, Werner Lomker, also represented the lumber company whose shed McDonald was accused of burning. The New York Court of Appeals reversed the conviction, holding that Lomker’s concurrent representation created a conflict of interest. The court emphasized that the trial judge failed to inquire into McDonald’s awareness of the potential risks and obtain his informed consent. The court held that such a conflict, impacting the conduct of the defense, deprived McDonald of effective assistance of counsel, necessitating a new trial. The court also addressed and rejected McDonald’s arguments regarding the sufficiency of evidence and the Appellate Division’s jurisdiction.

Facts

James McDonald was charged with arson for setting fire to a shed owned by the Lyell Exchange Lumber Company. McDonald was represented by attorney Werner Lomker. Lomker also represented the lumber company. Michael Lazzaro, the company’s vice-president, initially submitted an affidavit minimizing the fire damage. At trial, Dean Lazzaro, another company officer, testified about McDonald’s motive, citing theft and poor terms of departure from the company weeks before the fire. Defense counsel Lomker acknowledged his uncomfortable relationship with Lazzaro during cross-examination.

Procedural History

McDonald was convicted of arson in the third degree. The trial court modified the verdict to attempted arson due to insufficient proof of damage. The Appellate Division reversed, reinstating the original guilty verdict, finding sufficient evidence of damage and no conflict of interest. McDonald appealed to the New York Court of Appeals, arguing ineffective assistance of counsel due to a conflict of interest.

Issue(s)

1. Whether defense counsel’s concurrent representation of the defendant and the company whose property was damaged constituted a conflict of interest, thereby denying the defendant effective assistance of counsel.

2. Whether the Appellate Division had jurisdiction to hear the People’s cross-appeal from the trial court’s order modifying the jury verdict.

3. Whether the evidence was legally sufficient to sustain McDonald’s conviction for arson in the third degree.

Holding

1. Yes, because defense counsel’s concurrent representation of the defendant and the victim company created a conflict of interest that, without judicial inquiry and informed consent, deprived the defendant of effective assistance of counsel.

2. Yes, because CPL 450.20(3) grants the People the right to appeal an order setting aside a verdict, which includes modifying the verdict.

3. Yes, because the evidence of charring and incidental damage caused by firefighting efforts was legally sufficient to sustain the conviction for arson in the third degree.

Court’s Reasoning

The Court of Appeals held that a defendant is denied effective assistance of counsel when the attorney concurrently represents conflicting interests without judicial inquiry and informed consent. The court emphasized the trial judge’s duty to protect the defendant’s right to effective counsel and to conduct an inquiry when a potential conflict is apparent. Citing People v. Gomberg, the court stressed the need to ascertain whether the defendant is aware of the potential risks involved and has knowingly chosen to proceed. The court found an actual conflict because the attorney represented both the accused and the victim simultaneously. Dean Lazzaro’s testimony regarding McDonald’s employment history was integral to the prosecution’s case, placing defense counsel in an awkward position regarding impeachment. The court stated, “[t]he victim of a crime is not a detached observer of the trial of the accused, and his ‘private attorney’ is likely to be restrained in the handling of that client/witness.” Although not adopting a per se rule, the court found a substantial possibility of prejudice existed due to the conflict, warranting reversal. The court also held that slight burning or charring is sufficient to constitute damage under the arson statute, and the Appellate Division had jurisdiction to hear the People’s appeal of the modified verdict.