People v. Boris Brown
2019 NY Slip Op 03404
New York State Court of Appeals
Decided: May 2, 2019
ISSUE:
Whether counsel had a potential conflict of interest and whether an effective waiver was provided of conflict where counsel explained the potential conflict of the defendant’s own counsel representing a potential witness to his crimes on an unrelated matter and defendant waived any/all conflict.
HOLDING:
The Court held that counsel did have a potential conflict of interest and an effective waiver was provided because unlike an actual conflict, where an attorney has divided and incompatible loyalties within the same matter which hinders the ability to be unbiased, a potential conflict may never be realized. As such, the burden falls on the defendant to prove that a potential conflict operated on the defense.
FACTS OF THE CASE:
Defendant Boris Brown and his co-defendant were arrested and charged with various crimes. Jeffery Chabrowe was hired as counsel to represent Brown in this matter. While this case was pending, Ahmed Salaam, a witness to the crime, was arrested on unrelated charges. Salaam hired Chabrowe to represent him in that unrelated case. After being informed of a potential conflict related to Chabrowe’s concurrent representation of the defendant and Salaam, the Supreme Court appointed conflict counsel to advise the defendant and conducted a conflicts inquiry pursuant to People v. Gomberg, 38 NY2d 307 1975. Neither side intended on calling Salaam to testify and when the conflict counsel met with the defendant to explain that Chabrowe was representing Salaam in a different matter, the defendant waived any conflict.
Brown was found guilty of depraved indifference murder and weapons possession charges and was sentenced to 32 years to life in prison. Thereafter, the defendant moved to set aside his conviction pursuant to a CPL 440.10 motion on the basis that he was denied effective, conflict-free representation and alleged that Salaam had paid attorney Chabrowe to represent him (Brown). He also provided evidence to support this allegation. Brown argued that Salaam’s payment of Brown’s legal fees presented an “unwaivable” conflict and that he was now entitled to a hearing.
The Supreme Court denied Brown’s motion in a one sentence order, and the Appellate Division affirmed on direct appeal.
COURT’S ANALYSIS:
The Court held that counsel did have a potential conflict of interest and an effective waiver was provided. There is a distinction made between conflicts of interest as either actual or potential. An actual conflict of interest arises when an attorney has “divided and incompatible loyalties within the same matter necessarily preclusive of single-minded advocacy” while a potential conflict is one that may never be realized. People v Cortez, 22 NY3d 1061, 1068 (2014) [Lippman, Ch. J., concurring]; see People v Solomon, 20 NY3d 91, 95-96 (2012); People v Ortiz, 76 NY2d 652, 656-657 (1990); see also Cuyler v Sullivan, 446 US 335, 350 (1980).
When alerted to a conflict, the trial court must determine whether the defendant is aware of the potential risks involved in the aforementioned scenario and has knowingly chosen it. Some actual and all potential conflicts may be waived because a potential conflict presents only the possibility for conflict. However, even absent an effective waiver, the burden falls on the defendant to show that a potential conflict actually operated on the defense.
The Court of Appeals affirmed the Appellate Division’s order affirming the defendant’s conviction but held that the Supreme Court abused its discretion when it denied the defendant a hearing.