People v. Saunders, 81 N.Y.2d 533 (1993)

The mere existence of a conflict or potential conflict of interest between defense counsel and a prosecution witness does not automatically warrant reversal of a conviction; the defendant must demonstrate that the conflict actually affected the conduct of the defense.

Summary

Saunders was convicted of grand larceny for forging a mortgage satisfaction to obtain a bank loan. He argued for reversal, citing a conflict of interest because his attorney and a prosecution witness (Dollinger, bank’s title insurer counsel) represented each other in unrelated matters. The prosecution avoided questioning Dollinger about his relationship with defense counsel. The Court of Appeals affirmed the conviction, holding that Saunders failed to demonstrate that the potential conflict adversely affected his defense. The Court also found that a conversation with a former attorney was not privileged, and a warning about perjury was unpreserved for review.

Facts

Defendant Saunders forged a mortgage satisfaction. He then used the forged document to obtain a $1.7 million bank loan, leading to charges of grand larceny.
Prior to trial, it was revealed that defense counsel and Matthew Dollinger, outside counsel for the bank’s title insurer (a prosecution witness), had a prior attorney-client relationship in matters unrelated to the Saunders case.
The prosecution agreed not to elicit any testimony from Dollinger regarding his relationship with defense counsel.
Saunders also had a phone conversation with a former attorney where he admitted to fraudulently using the attorney’s notary stamp without permission.

Procedural History

Saunders was tried and convicted of grand larceny.
He appealed, arguing that the trial court erred by not inquiring further into the potential conflict of interest after being informed of the relationship between his counsel and the witness Dollinger. He also claimed attorney-client privilege regarding the phone conversation and that the judge’s warning about perjury violated his right to testify.
The Appellate Division affirmed the conviction.
Saunders appealed to the New York Court of Appeals.

Issue(s)

1. Whether the trial court’s failure to inquire further into a potential conflict of interest between defense counsel and a prosecution witness, after being informed of their prior attorney-client relationship in unrelated matters, constitutes reversible error.
2. Whether a telephone conversation between Saunders and his former attorney, during which Saunders admitted to fraudulently using the attorney’s notary stamp, was inadmissible on the grounds of attorney-client privilege.
3. Whether the trial court’s warning about the possibility of a perjury prosecution if Saunders testified violated Saunders’ right to testify.

Holding

1. No, because Saunders failed to demonstrate that the potential conflict of interest actually affected the conduct of his defense.
2. No, because Saunders failed to prove that he contacted his former attorney for the purpose of obtaining legal advice.
3. The issue was not preserved for review because the defendant did not object to the warning at trial.

Court’s Reasoning

Conflict of Interest: The Court of Appeals cited People v. Lombardo, 61 NY2d 97, reiterating that a potential conflict alone is insufficient for reversal. Quoting People v. Ortiz, 76 NY2d 652, 657, the Court emphasized that the defendant must show “‘the conduct of his defense was in fact affected by the operation of the conflict of interest’” for reversible error to occur. Saunders failed to make this showing.
Attorney-Client Privilege: Citing Matter of Priest v. Hennessy, 51 NY2d 62, 69, the Court stated that Saunders had the burden of proving the communication with his former attorney was for the purpose of seeking legal advice, which he failed to do. Since the call was not for legal advice, it was not protected by attorney-client privilege.
Right to Testify: The Court found that Saunders’ argument regarding the trial court’s warning about perjury was unpreserved for review, referencing Webb v. Texas, 409 US 95, 96. Because Saunders did not object to the warning at trial, he could not raise the issue on appeal. This highlights the importance of making timely objections to preserve issues for appellate review.