*1 Defendant appeals from a judgment of the Supreme Court, New York County (Bruce Allen, J.), rendered November 7, 2014, convicting him, after a nonjury trial, of criminal sale of a controlled substance in the third degree, and imposing sentence.*2
In this observation drug sale case, defendant, an alleged seller, was appointed the same attorney at his Criminal Court arraignment as Edward Jones, one of the alleged buyers. During the course of counsel’s simultaneous representation of defendant and Jones, Jones accepted a plea that required him to allocute to a description of one of the drug sellers. Jones allocuted to a description fitting defendant, and testified consistently with the allocution as a prosecution witness at trial. Since we find that counsel’s simultaneous representation of defendant at the time of Jones’s plea constituted an actual conflict, we reverse and remand for a new trial. In addition, because Jones’s testimony is interwoven with a violation of defendant’s New York State and Federal right to the effective assistance of counsel, we preclude the People from using Jones’s testimony at any retrial.Defendant was arraigned in Criminal Court on July 8, 2012. The felony complaint alleged that, along with a codefendant, defendant had been observed speaking with Edward Jones and another man in the vicinity of 333 Sixth Avenue. The complaint identified Jones by name, described him as a “separately charged defendant,” and listed his arrest number1. According to the complaint, Jones allegedly handed money to defendant, who walked over to a magazine stand. Jones then walked to the magazine stand, picked up an object, and placed it in his pocket. When Jones was arrested, he possessed crack cocaine.During defendant’s arraignment, he was appointed the same counsel as Jones. Defendant and Jones’s simultaneous representation continued for the next six months.Counsel represented defendant during his arraignment in Supreme Court on August 1, 2012. He filed an omnibus motion on defendant’s behalf on August 20, 2012. In his supporting affirmation, counsel stated, “It is alleged the defendant…did sell a bag of cocaine to Edward Jones…in the vicinity of 333 [Sixth Avenue]….”On January 17, 2013, counsel appeared with Jones in Criminal Court and informed the sitting judge that “[t]here is an offer of a violation, 15 days. My client will allocute as to the seller. That’s what they want him to do, they want him to describe the seller that he bought from….” The People confirmed that they were offering a disorderly conduct violation that required a “particular allocution” from Jones. “After a conversation with Mr. Jones,” counsel informed the court that he was authorized to enter Jones’s plea.
