DECISION and ORDER Upon the foregoing papers, defendant moves pro se, for an Order to vacate his conviction pursuant to CPL §440.10, (1) (b) c (f) and (h). The People submit an affirmation in opposition. The defendant further submitted a reply.FACTSAt about midnight on August 4, 1988, in front of 653 Central Avenue in the County of Kings, the defendant, Darren Breedan, together with co-defendants Richard Bush, Harold “Jimmy” Sattan, and Orin Bobb, executed a plan to shoot Rodney Vann, nicknamed “Brownsville,” in retaliation for the attempted kidnaping of Bush’s wife and son by Vann and another man, who were members of a rival drug gang. While defendant and co-defendant Bobb positioned themselves in the vicinity to provide cover, co-defendant Bush, disguised as a woman, and co-defendant Sattan approached Vann as Vann was sitting next to Sharon Barnes on a bench in front of 653 Central Avenue. Co-defendants Bush and Sattan pulled out guns and fired repeatedly, killing Vann and inflicting wounds to Barnes that caused her to become paralyzed.Defendant, together with co-defendants Bush, Sattan, and Bobb, was charged, under Kings County Indictment Number 5421/91, with Murder in the Second Degree (P.L.§125.25 [1]), Attempted Murder in the Second Degree (P.L. §§110.00/125.25 [1]), Assault in the First Degree (P.L.§120.10[1]), Reckless Endangerment in the First Degree (P.L.§120.25), Criminal Possession of a Weapon in the Third Degree (P.L. former §265.03) (three counts), and Criminal Possession of a Weapon in the Fourth Degree (P.L. former §265.02[4]) (three counts).Defendant, co-defendant Bobb, and co-defendant Sattan were part of a drug organization headed by co-defendant Richard Bush and his partner, Kevin Davis, which operated not only in New York but other states and the District of Columbia. In 1991, co-defendant Bush, who had been the subject of investigation by both New York and federal authorities, was being prosecuted in the United States District Court for the Eastern District of Virginia for various offenses relating to drug trafficking.Although Bobb was also indicted on a case under Queens County Indictment Number 3869/91 while Kings County Indictment Number 5421/91 was pending, see Defendant’s Exhibit B, Bobb did not have any prior felony convictions at the time of his indictment in the Kings County case. At that time, Assistant District Attorney Daniel Saunders of the Kings County District Attorney’s Office was supervising the joint task force investigating the activities of the Bush-Davis gang and the murder of Rodney Vann. On the night of June 9, 1991, defendant was arrested for possessing a loaded gun in a livery cab. On June 10, 1991, A.D.A. Saunders interviewed defendant on videotape, and defendant made a statement admitting that he participated in the plan to shoot Rodney Vann.PRE-TRIAL PROCEDURAL HISTORYFollowing his indictment in this case, defendant was represented by Michael Fiechter, Esq. Co-defendant Bush was represented by Claude Tims, Esq. Co-defendant Sattan was represented by Joel BrettSchneider, Esq. Co-defendant Bobb was initially represented by Michael Vecchione, Esq.. However, on November 4, 1991, the Court (Kreindler, J.) Requested that new counsel be assigned for Bobb. On November 6, 1991, a new attorney, John Monteleone, Esq., was assigned to represent co-defendant Bobb on Indictment 5421/91, for the next court date of December 11, 1991. On December 11, 1991, Mr. Vecchione contacted the Court (Kreindler, J.) to request that co-defendant Bobb’s case be adjourned to December 23, 1991.On December 18, 1991, pursuant to a plea and cooperation agreement with the Kings County District Attorney’s Office, co-defendant Richard Bush pled guilty in this case to Murder in the Second Degree (P.L. §125.25[1]), with a promised sentence of twenty-five years to life, to run concurrently with his sentence under Kings County Indictment Number 5422/91 and any previously imposed federal sentence (Kriendler, J., at plea). The plea agreement was signed on behalf of the District Attorney’s Office by A.D.A. Saunders and by Assistant District Attorney John O’Mara, as chief of the Homicide Bureau.In January of 1992, A.D.A. Saunders left the Kings County District Attorney’s Office and joined the Queens County District Attorney’s Office. On January 6, 1992, Michael Vecchione joined the Kings County District Attorney’s Office as an assistant district attorney.On January 10, 1992, pursuant to a plea and cooperation agreement, co-defendant Orin Bobb, then represented by Arnold Kriss, Esq., pled guilty in this case to Manslaughter in the First Degree (P.L. §125.20[1]) with a promised sentence of eight and one-third to twenty-five years, to run concurrently with his sentence under Queens County Indictment Number 3869/91, as well as any previously imposed federal sentence (Kreindler, J., at plea).On February 28, 1992, co-defendant Richard Bush was sentenced to twenty-five years to life, to run concurrently with his sentence under Kings County Indictment Number 5422/91 (Kreindler, J., at sentence).On February 28, 1992, Kings County Indictment Number 1001/92 was filed in Supreme Court, Kings County, charging defendant and co-defendant Gregory Wright with murder and weapon possession charges in connection with the shooting of Benjamin Horn on April 30, 1991, at 2100 Westbury Court in the County of Kings. Defendant was also charged in that indictment with Criminal Possession of a Weapon in the Third Degree relating to the gun recovered from defendant’s possession by the police on June 9, 1991. That gun was linked to the Horn shooting by ballistics evidence. On April 28, 1992, a plea and cooperation agreement was signed for defendant in this case. The agreement offered defendant a plea to second-degree murder with a sentence of twenty years to life in this case, and a plea to second-degree murder with a sentence of twenty years to life under Kings County Indictment 1001/92; those sentences were to run concurrently with each other and with a sentence of twenty years to life on a plea to second-degree murder in defendant’s Queens County case under Queens County Indictment Number 3764/91. In addition, the agreement contemplated that the police would not charge defendant in connection with an incident in the 32nd Precinct in New York County, and that in the event that defendant was indicted for that incident, the New York County District Attorney intended to offer defendant a guilty plea to second-degree murder and a sentence of not more than twenty years to life, to run concurrently with the sentences in Kings and Queens counties.This proposed plea agreement was signed on behalf of the Kings County District Attorney’s Office by Assistant District Attorney Anne Gutmann and approved by Assistant District Attorney Michael Vecchione as chief of the Trial Division-Trial Cadre. The agreement was further approved by Assistant District Attorney Daniel Saunders as chief of Homicide Trials at the Queens County District Attorney’s Office.Defendant did not accept the plea agreement in the case at Bar. On June 12, 1992, defendant pled guilty in Supreme Court, Queens County, to Murder in the Second Degree (P.L. §125.25[3]) under Queens County Indictment Number 3764/91; on September 30, 1992, the defendant was sentenced to twenty years to life (Sherman, J., at plea and sentence).On January 21, 1993, pursuant to a plea and cooperation agreement, co-defendant Sattan pled guilty in this case to Murder in the Second Degree (P.L. §125.25[1]) with a promised sentence of twenty years to life and also pled guilty to Attempted Murder in the Second Degree (P.L. §§110.00/125.25[1]) under Kings County Indictment Number 4414/91, with a promised sentence of nine to eighteen years, to run concurrently with the sentence under Kings County Indictment Number 5421/91, as well as three sentences that Sattan was already serving, and any sentence in his pending murder case in Manhattan.On January 25, 1993, jury selection began in defendant’s trial in the case at Bar. On February 9, 1993, the jury returned a verdict acquitting defendant of the counts of second-degree murder and attempted second-degree murder, first-degree assault, and first-degree reckless endangerment and finding defendant guilty of two counts of Criminal Possession of a Weapon in the Second Degree (P.L. former §265.03).On February 11, 1993, co-defendant Sattan was sentenced in this case to a prison term of twenty years to life, to run concurrently with his sentence under Kings County Indictment Number 4414/91.On March 25, 1993, the defendant was sentenced in this case to consecutive prison terms of five to fifteen years for his convictions of second-degree criminal possession of a weapon (Kreindler, J., at trial and sentence).POST-TRIAL PROCEDURAL HISTORYBy pro se papers dated January 12, 1995, defendant moved to vacate his judgment of conviction pursuant to Criminal Procedure Law §440.10, claiming that a witness’s statement was not disclosed as Rosario material.On or about March 23, 1995, defendant’s appellate counsel, Elizabeth J. Miller, Esq., of the Legal Aid Society, perfected defendant’s appeal from the judgment of conviction by filing a brief in the Appellate Division, Second Department (hereinafter “Appellate Division”). In his brief, defendant raised a claim that the People failed to prove defendant’s guilt beyond a reasonable doubt, and that the verdict was against the weight of the evidence.On October 13, 1995, this Court issued a decision denying defendant’s motion to vacate the judgment. People v. Breeden, Ind. No. 5421/91 (Sup. Ct. Kings County Oct. 13, 1995) (Kreindler, J.) However, by papers dated October 12, 1995, received by the Court after the Court had issued its decision, defendant sought additional time to reply to the People’s answer to his motion to vacate the judgment. The Court granted defendant additional time to reply, and defendant submitted additional papers, dated October 23, 1995, in support of his motion to vacate the judgment.On October 30, 1995, the Appellate Division, by written decision, unanimously affirmed defendant’s judgment of conviction. People v. Breeden, 220 A.D.2d 761 (2d Dep’t 1995). By order dated December 11, 1995, the Court denied defendant’s motion to vacate the judgment. People v. Breeden, Ind. No. 5421/91 (Sup. Ct. Kings County Dec. 11, 1995) (Kreindler, J.)On April 17, 1996, defendant’s application for permission to appeal to the Court of Appeals from the Appellate Division’s order affirming the judgment on appeal was denied. People v. Breeden, 88 N.Y.2d 845 (1996) (Titone, J.).By order dated May 10, 1996, defendant’s application for leave to appeal to the Appellate Division from the December 11, 1995 order denying his motion to vacate the judgment was denied by a justice of the Appellate Division (Altman, J.).By papers dated September 16, 1999, defendant again moved in this Court to vacate his judgment of conviction pursuant to Criminal Procedure Law §440.10, claiming that certain instructions to the jury were erroneous. By decision and order dated November 19, 1999, the Court denied his motion. People v. Breeden, Ind. No. 5421/91 (Sup. Ct. Kings County Sept. 16, 1999) (Kreindler, J.).By papers dated May 6, 2003, and August 21, 2003, defendant again moved in this Court to vacate his judgment of conviction pursuant to Criminal Procedure Law §440.10, claiming that the People had failed to provide him with a copy of a witness’s cooperation agreement. By decision and order dated September 29, 2003, the Court denied defendant’s motion. People v. Breeden, Ind. No. 5421/91 (Sup. Ct. Kings County Sept. 29, 2003) (Kreindler, J.)By order dated February 27, 2004, defendant’s application for leave to appeal to the Appellate Division from the Sept. 29, 2003 order denying his motion was denied by a justice of the Appellate Division (Altman, J.).By papers dated October 12, 2004, defendant moved to set aside his sentence pursuant to Criminal Procedure Law §440.20, claiming that the imposition of consecutive sentences was improper and that the sentencing court used crimes of which defendant was acquitted as a basis for defendant’s sentence. By decision and order dated January 26, 2005, defendant’s motion was denied. People v. Breeden, Ind. No. 5421/91 (Sup. Ct. Kings County Jan. 26, 2005) (Silverman, J.)By order dated April 27, 2005, defendant’s application for leave to appeal to the Appellate Division from the Jan. 26, 2005 order denying his motion was denied by a justice of the Appellate Division (Crane, J.).By petition filed in 2005, defendant sought a federal writ of habeas corpus in the United States District Court for the Eastern District of New York. The district court dismissed defendant’s petition as time-barred. Breeden v. Phillips, No. 05-CV-1248 (RJD), 2005 U.S. Dist. LEXIS 41756 (E.D.N.Y. Aug. 15, 2005) (Dearie, J.). Defendant filed a notice of appeal in the United States Court of Appeals for the Second Circuit, and while the appeal was pending, defendant filed a new petition in the district court, dated July 28, 2006, claiming that he was innocent and that his sentence was improper. The district court stayed the new petition until the appeal to the Second Circuit was resolved. By decision and order dated November 9, 2007, the district court, noting that the Second Circuit had dismissed defendant’s appeal from his earlier petition, dismissed defendant’s 2006 petition as time-barred. Breeden v. Ercole, No. 06 CV 3860, 2007 U.S. Dist. LEXIS 84732 (E.D.N.Y. Nov. 9, 2007) (Dearie, J.).By papers dated January 9, 2009, defendant sought in the Appellate Division a writ of error coram nobis, claiming that his appellate counsel was ineffective for not raising a claim that his trial counsel was ineffective for not objecting to the court’s failure to administer an oath to prospective jurors before questioning them as to their qualifications. By decision and order dated May 26, 2009, the Appellate Division denied defendant’s motion. People v. Breeden, 62 A.D.3d 1021 (2d Dep’t 2009).By papers dated June 25, 2012, defendant again moved to set aside his sentence pursuant to Criminal Procedure Law §440.20, claiming that the imposition of consecutive sentences for his two weapon possession convictions was illegal. By decision and order dated December 20, 2012, the Court denied his motion. See People v. Breeden, No. 5421/91 (Sup. Ct. Kings County Dec. 20, 2012) (Balter, J.)PRESENT MOTIONIn his present motion, defendant claims that his judgment of conviction should be vacated on the ground that a conflict of interest affecting defendant arose when Michael Vecchione, Esq., who had been counsel for co-defendant Orin Bobb in this case, joined the Kings County District Attorney’s Office during the pendency of this case and became involved in the prosecution of this case, and as a result, according to defendant, defendant did not receive a plea offer that was comparable to the plea offer received by co-defendant Bobb and was indicted on fraudulent murder charges under Indictment Number 1001/92. Defendant now claims that his judgment of conviction should be vacated because of an alleged conflict of interest based on the fact that co-defendant Orin Bobb’s former counsel on Indictment Number 5421/91, Michael Vecchione, Esq., became employed by the Kings County District Attorney’s Office in January of 1992. According to defendant, although Vecchione never represented defendant, Vecchione’s involvement in the prosecution of the case against defendant presented a conflict of interest and an appearance of impropriety that requires vacatur of his judgment of conviction.In opposition to the motion, the People argue that the defendant’s claim should be denied on procedural grounds pursuant to Criminal Procedure Law §440.10(3) c because defendant could have raised his present claim in one of his prior motions to vacate the judgment. Furthermore, the People maintain that defendant’s present claim fails to state a legal claim for relief and is unsupported, unsubstantiated, and merely speculative.APPLICABLE STATUTORY AUTHORITY AND CASE LAWCriminal Procedure Law §440.10(3) ( c ) provides that a motion to vacate the judgment may be denied, where “[u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so.” See People v. Dennis, 141 A.D.3d 730, 733 (2d Dep’t 2016); People v. Cochrane, 27 A.D.3d 659, 660 (2d Dep’t 2006); People v. Deqondea, 3 A.D.3d 148, 156-61 (1st Dep’t 2003); People v. Dover, 294 A.D.2d 594, 596 (2d Dep’t 2002).“The New York State and Federal Constitutions guarantee the right to effective assistance of counsel, meaning representation that is reasonably competent, conflict-free and single mindedly devoted to the client’s best interests.” People v. Longtin, 92 N.Y.2d 640, 644 (1998). Generally speaking, “[a] conflict-based ineffective assistance of counsel claim involves two inquiries. First, the court must assess whether there was a potential conflict of interest in a defendant’s representation.” People v. Abar, 99 N.Y.2d 406, 409 (2003). “Second, a ‘defendant must show that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation”. Id. (Quoting People v. Ortiz, 76 NY2d, 652, 657 (1990)The phrase “effective assistance” is not however, amenable to precise demarcation applicable in all cases. People v. Baldi, 54 NY2d 137, 146. The Court of Appeals has long applied a flexible standard to analyze claims based upon a deprivation of rights guaranteed under the New York State Constitution due to counsel’s alleged ineffectiveness. The core of the inquiry is whether the defendant received “meaningful representation”. People v. Beneveto, 91 N.Y. 2d 708 (1998).The Rules of Professional Conduct, provide, in relevant part, as follows:Rule 1.9. Duties to Former Clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.The Rules of Professional Conduct took effect on April 1, 2009. At the time of the events at issue in this case, the Rule 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employees set forth: (d) Except as law may otherwise expressly provide, a lawyer currently serving as a public officer or employee shall not:(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter.When a defendant’s former attorney becomes employed by the District Attorney’s Office while the defendant’s prosecution on the matter on which the attorney represented him is pending, the defendant, to be entitled to vacatur of a conviction in that same matter on the basis of a conflict of interest arising in that circumstance, “must establish actual prejudice or a substantial risk of an abused confidence.” See People v. English, 88 N.Y.2d 30, 34 (1996). With respect to cases involving a conflict of interest allegedly arising from a defense attorney’s employment as a prosecutor while the defendant’s prosecution on the matter on which the attorney represented him is pending, the standard that the Court of Appeals has applied has evolved. In People v. Shinkle, 51 N.Y.2d 417 (1980), where a Legal Aid Society attorney who had actively represented the defendant in a pending case became employed by the District Attorney’s Office in the months preceding and during the defendant’s trial on that case, the Court of Appeals held that reversal of the conviction was required because the circumstances in that case gave “the unmistakable appearance of impropriety and created the continuing opportunity for the abuse of confidences entrusted to the attorney during the months of his active representation of defendant.” Id. at 420.In People v. Herr, 86 N.Y.2d 638 (1995), the Court of Appeals explained that “the rule of Shinkle is that disqualification [of the District Attorney's Office] is required when there is a ‘risk of prejudice attendant on the abuse of confidence,’” Herr, 86 N.Y.2d at 641 (quoting Shinkle, 51 N.Y.2d at 421) and that while such a rule applies where “the risk of abuse is obvious,” it does not require disqualification “whenever there exists a possible appearance problem.” Id. [T]he existence of a conflict of interest between the district attorney and a defendant, by itself, does not warrant the removal of the district attorney.” Soares v. Herrick, 20 N.Y.3d 139, 146 (2012) “The courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence, and the appearance of impropriety, standing alone, might not be grounds for disqualification.” Schumer v. Holtzman, 60 N.Y.2d 46, 55 (1983) (citations omitted); Working Families Party, 23 N.Y.3d 539, 546 (2014). The party seeking a prosecutor’s disqualification “should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored.” Schumer v. Holtzman, 60 N.Y.2d at 55.Similarly, in People v. English, 88 N.Y.2d 30 (1996), the Court of Appeals observed that its decisions subsequent to Shinkle “have not applied its holding that strictly,” and held that, to warrant vacatur of a conviction based on a defendant’s claim that his former attorney’s employment by the District Attorney’s Office presented a conflict of interest in the defendant’s case, the defendant “must establish actual prejudice or a substantial risk of an abused confidence.”Most significantly, In English, the defendant asserted that the conflict of interest created by the employment of his former attorney, Michael Vecchione, by the Kings County District Attorney’s Office, after Mr. Vecchione had represented the defendant in three cases, required vacatur of the defendant’s conviction after trial in one of those cases because the defendant’s case was tried after Vecchione had joined the District Attorney’s Office. The Court of Appeals noted that Mr. Vecchione had represented the defendant for less than five months, had no contact with the assistants prosecuting the defendant, and never discussed the defendant’s case with fellow assistants or disclosed any conversation with the defendant. Id.The Court of Appeals held that reversal of the conviction was unwarranted, because the risk that Mr. Vecchione had abused the defendant’s confidences was “insubstantial.” Id. In Shinkle, Herr, and English, the core concern was whether there was a risk of an abuse of a defendant’s confidences arising from the defendant’s attorney-client relationship with the attorney. English, 88 N.Y.2d at 34; Herr, 86 N.Y.2d at 641-42; Shinkle, 51 N.Y.2d at 420. Indeed, the attorney-client relationship between the defendant and the attorney was the very foundation for the assertion of a conflict of interest in those cases.Rather, even when a defendant shows that his own attorney engaged in conduct that, in violation of the applicable professional conduct rules, created a conflict of interest, the defendant is not entitled to reversal of the conviction without showing that the conflict “adversely and prejudicially affected the quality of the representation of defendant.” People v. Winkler, 71 N.Y.2d 592, 597-98 (1988). Defendant must specify any such prejudice affecting his legal representation in this case. See Abar, 99 N.Y.2d at 411.In People v. Dennis, the Appellate Division recently held, that the Supreme Court, which granted defendant’s motion to vacate the judgment based upon the determination that Vechionne leaving his position as the defendant’s attorney to work for the District Attorney’s office ” was a conflict of interest which at least created a substantial risk that the defendant’s confidence would be abused” and that the circumstances presented ” a conflict-based ineffective assistance of counsel” claim, had erred. The Court in Dennis found that the defendant could have raised his claims significantly sooner, and his delay would prejudice the People’s ability to retry the case. Citing English, the Court affirmed that” [a] defendant must establish actual prejudice or a substantial risk of an abused confidence”. People v. Dennis, 141 AD3d 730 (2016).Criminal Procedure Law §440.30(4)(a) provides that a court may deny a motion to vacate a judgment without conducting a hearing if: The moving papers do not allege any ground constituting legal basis for the motion.ANALYSISDefendant has brought no less than three prior motions to vacate his judgment of conviction and two prior motions to set aside his sentence in this case. Defendant was in a position to raise his present claim of a conflict of interest in one of his prior motions to vacate the judgment because defendant was in a position to know from Indictment 5421/91 that Orin Bobb was his co-defendant, and from Vecchione’s notice of appearance in the court file that Vecchione had represented co-defendant Bobb in connection with Indictment Number 5421/91. According to defendant’s own motion papers, defendant was able to obtain the notice of appearance from the court file documenting Vecchione’s representation of co-defendant Bobb on Indictment Number 5421/91 (Defendant’s Exhibit F).5 Defendant was aware as early as 1992 that Vecchione was working for the District Attorney’s Office because Vecchione approved the plea agreement that was offered to defendant and that defendant signed. Although the defendant evidently refused the plea agreement and was ultimately convicted after a jury trial. Furthermore, Vecchione’s transition from defense attorney to prosecutor at the Kings County District Attorney’s Office was documented in the decision of the Court of Appeals in People v. English, 88 N.Y.2d 30 (1996).Furthermore, despite having consulted with counsel in 2014 in connection the preparation of his present motion (see Defendant’s Motion at 7, f 31), defendant waited until 2017 before filing his present motion. Defendant’s claim of a conflict of interest is based on Vecchione’s prior representation of a co-defendant. Defendant does not claim that his attorney, Michael Fiechter, Esq., had a conflict of interest that affected defendant’s defense; nor does defendant claim that Michael Vecchione ever represented defendant. Instead, defendant’s claim of a conflict of interest and the appearance of impropriety is wholly derivative: the alleged conflict arose solely by virtue of Mr. Vecchione’s representation of co-defendant Bobb on Indictment Number 5421/91 prior to joining the Kings County District Attorney’s Office as an assistant district attorney in January of 1992 (Defendant’s Motion at 10-12, 17-35).Defendant’s motion to vacate the judgment must be denied, as he has failed to set forth a sufficient sworn allegations of fact that, if true, would establish that, with respect to the prosecution of defendant under Indictment Number 5421/91, Mr. Vecchione’s representation of co-defendant Bobb caused defendant to suffer “actual prejudice or a substantial risk of an abused confidence.” See English, 88 N.Y.2d at 34. Because defendant has failed to show that Vecchione ever had an attorney-client relationship with defendant and because defendant does not allege that he had any attorney-client relationship whatsoever with Vecchione or shared any confidences with him, defendant’s papers fail to provide a legal basis for his motion.Thus, the Court finds that pursuant to Criminal Procedure Law §440.30(4)(a), as defendant’s moving papers “do not allege any ground constituting legal basis for the motion, the relief requested cannot be granted, as a matter of law. See C.P.L. §440.30 (4) (a); People v. Giuca, 78 A.D.3d 729, 730 (2d Dep’t 2010).By signing the plea and cooperation agreement offered to defendant, Mr. Vecchione participated in the prosecution of defendant under Indictment Number 5421/91; any such participation in that prosecution was not prohibited by Rule 1.9 (or by Disciplinary Rule 5-108 of the Code of Professional Responsibility, which was the relevant professional conduct rule in effect at the time of the events at issue in this case, and which contained language that, in relevant part, is the same as that of Rule 1.9). That rule would prohibit a prosecutor from participating in the prosecution of a case against a defendant if the prosecutor had previously represented the defendant “in the same or a substantially related matter.” But that rule did not bar Mr. Vecchione from participating in the prosecution of defendant under Indictment Number 5421/91, because Mr. Vecchione had never represented defendant with respect to the charges in that indictment. Instead, Mr. Vecchione had represented co-defendant Bobb prior to Bobb’s guilty plea under Indictment Number 5421/91. Moreover, at the time that Vecchione approved the plea offer for defendant, Bobb’s case had already been resolved with a guilty plea. Thus, Rule 1.9 of the Rules of Professional Conduct (as well as DR5-108 of the Code of Professional Responsibility) did not prohibit Mr. Vecchione from participating in the prosecution of defendant under Indictment Number 5241/91.Defendant lacks standing to assert any prejudice from Vecchione’s prior representation of Bobb. Defendant was never represented by Vecchione. Defendant refused the plea offer. The plea offer included a sentence recommendation of twenty years to life (see People’s Exhibit 7), which was substantially less than the maximum sentence of twenty-five years to life that defendant faced for the murder charges for which he was indicted in this case. Defendant chose to go to trial in this case after pleading guilty to Murder in the Second Degree and receiving a sentence of twenty years to life on Queens County Indictment Number 3764/91.In this case, defendant was acquitted after trial of the most serious charges and was convicted only of the weapon possession counts (1031-32). Vecchione did not appear for the People at defendant’s trial or sentencing. Defendant presents no genuine claim of impropriety or prejudice that would justify vacatur of his conviction.CONCLUSIONFor all of these reasons, defendant’s motion papers fail to set forth sufficient sworn allegations that, if true, would entitle him to vacatur of his conviction on the ground of an alleged conflict of interest of an attorney; namely, Vecchione’s employment as an assistant district attorney, the District Attorney’s Office should have been disqualified from prosecuting defendant. Here, defendant does not claim that he personally had a relationship with Vecchione during which he shared confidential information with Vecchione. Thus, defendant has not articulated any “actual prejudice” from an alleged conflict of interest (see Working Families Party, 23 N.Y.3d at 546; Schumer v. Holtzman, 60 N.Y.2d at 55), and he also has not shown any risk, let alone a “substantial risk,” of an abuse of confidence (see id.). See People v. Giroux, 122 A.D.3d 1063 (3d Dep’t 2014).The fact that the District Attorney may have previously represented a co-defendant, without more, does not require his disqualification”. People v. Dennis, 141 AD 3d 730 (3d Dep’t. 2016); People v. Zinkhen, 89 A.D.3d 1319 (3d. Dep’t 2011).Furthermore, after a careful review of the papers submitted and the entire procedural history of this matter, the Court finds that the defendant’s claim is procedurally barred. See People v. Breedan 220 AD 2d 761 (2d Dep’t 1995); See further People v. Breeden, 88 NY2d 845 (Ct. Of App. 1996). Accordingly, the Court finds no basis for the scheduling of a hearing for which defendant’s presence is required. See People v. LaPella, 185 A.D. 2d 861.The foregoing constitutes the decision and order of the court.
