A defendant convicted of selling crack cocaine saw his judgment reversed, and a new trial ordered, by the Appellate Division, First Department, because his assigned counsel was simultaneously representing a person who would go on to testify for the government in the case.

Dominique Peters was arraigned in New York County criminal court on July 8, 2012, for allegedly selling the controlled substance to Edward Jones not far from Washington Square Park in Manhattan.

According to briefs filed by Peters' counsel on appeal, Office of the Appellate Defender staff attorney Kate Mollison, that attorney was private attorney Frank Lomuscio.

However, it turned out that Lomuscio was also assigned to be Edward Jones' counsel. Over the course of the next six months Lomuscio represented both men, in a conflict the appellate panel of Justices Diane Renwick, Barbara Kapnick, Ellen Gesmer, and Cynthia Kern found violated Peters' rights to effective counsel.

Of particular issue was Lomuscio's representation of Jones during plea proceedings in January 2013 that saw his client cop to disorderly conduct.  Jones allocuted specifics about whom he bought the crack cocaine from in what court records indicate was an exchange for Jones' lesser charge.

As the appellate panel notes in the order written by Gesmer, Lomuscio was seemingly aware that he was representing the person his client had now essentially identified to police as the seller in the drug transaction. The felony complaint alleged Jones purchased drugs from Peters, and Lomuscio “demonstrated he was aware of that allegation.”

Lomuscio could not be reached by phone or email for comment.

In June 2013, nearly a year after Lomuscio was assigned as Peters' counsel, and five months since his representation of Jones ended, Lomuscio asked to be relieved from Peters' case because Peters had filed a disciplinary complaint against him.

At trial, Jones became a witness, and the court was faced with the challenge of what to do with him after it became aware of Lomuscio's role as counsel for both the defendant and the witness early in the case.

When asked how this could have happened, the assistant DA on the case is recorded as telling the court he did not know.

Despite what Peters' counsel argued was a clear conflict, the court refused to exclude Jones' testimony against Peters, and Peters was found guilty of a Class B Felony drug sale. The sentence imposed was time served.

In reversing the sentence, the panel found that Lomuscio faced an actual—versus potential—conflict, and that reversal, based on precedent, is required.

The panel noted that, despite Peters' right to counsel devoted to his interest, Lomuscio “pursued a strategy in Jones' case directly at odds with defending defendant from the drug sale charges that he faced.” In doing so, Jones became unavailable as a trial witness, and instead bolstered the state's case against Peters.

While the panel denied Peters' request for a dismissal, a retrial that excludes Jones' testimony was ordered as necessary “to dissipate the taint of counsel's conflicted and ineffective representation.”

Peter's appellate counsel Mollison applauded the appellate court's reversal.

“We're glad that the court made the right decision, and stood up for Mr. Peter's right to effective and unconflicted counsel,” she told the New York Law Journal.

A spokeswoman for Manhattan DA Cyrus Vance Jr.'s office, which represented the government on appeal, declined to comment.