People v. Simpson

sentenced to the agreed-upon prison term of six years, with two years of postrelease supervision, and he now appeals.

We affirm. Our review of the record confirms that dependant’s waiver of appeal was knowing, voluntary and intelligent (see People v Ramos, 7 NY3d 737 , 738 [2006]; People v Lopez, 6 NY3d 248 , 256 [2006]; People v Dickson-Eason, 143 AD3d 1013 , 1013 [2016], lv denied 28 NY3d 1123 [2016]). County Court thoroughly explained the meaning and consequences of the appeal waiver and its separate and distinct nature, and defendant orally confirmed that he understood the implications of waiving his right to appeal and signed a written waiver of appeal in open court after conferring with counsel. The valid appeal waiver forecloses defendant’s claim of ineffective assistance of counsel, except to the extent that such claim impacts the voluntariness of his plea; however, this claim is unpreserved as the record does not reflect that defendant moved to withdraw his plea on this ground (see CPL 220.60 [3]; People v Lobaton, 140 AD3d 1534 , 1535 [2016], Iv denied 28 NY3d 972 [2016]). Defendant’s statutory speedy trial arguments were also waived by his guilty plea (see People v Friscia, 51 NY2d 845 , 847 [1980]; People v Slingerland, 101 AD3d 1265 , 1267 [2012], lv denied 20 NY3d 1104 [2013]). Defendant’s related claim that trial counsel was ineffective for failing to move to dismiss the indictment on statutory speedy trial grounds was not preserved in the absence of an appropriate postallocution motion raising this argument; consequently, given that the record is inadequate to review the merits of this claim, it can only be raised in a CPL article 440 motion (see People v Viele, 130 AD3d 1097 , 1097 [2015]).

Next, defendant contends that his trial counsel had an actual conflict of interest that was not adequately explained to or waived by him, therefore depriving him of the effective assistance of conflict-free counsel. After the first day of the combined pretrial suppression hearings, defense counsel advised County Court on the record, in defendant’s presence, that the Cl had been arrested the night before the start of the hearing^[1] and had retained defense counsel’s partner to represent him on those charges. Upon learning this information, defense counsel reported that he had advised his partner that

the Cl was involved in the events that led to defendant’s charges and directed the partner not to speak with the Cl about the charges against either the Cl or defendant. The partner represented the Cl solely at the arraignment and bail hearing the next morning and immediately withdrew from the representation. Upon further inquiry by the court that day and again roughly two months later, defense counsel assured the court that he had never spoken to the Cl and had acquired no privileged information about him. Defense counsel further assured the court that his partner had no conversations with the police or the Cl about the background of the charges against the Cl and had not acquired any such information. The court and defense counsel then advised defendant that, if counsel continued to represent him, counsel would not be able to use any privileged information, if he had acquired any, to cross-examine the Cl at defendant’s trial if he testified, and that the Cl could claim this privilege. The court informed defendant that he was entitled to an attorney of his choosing and could retain a new attorney and, when defendant indicated that he was confused, the court granted an adjournment to provide him with an opportunity to choose his course after conferring with defense counsel or outside counsel. A week later, defendant indicated that he wanted defense counsel to continue to represent him^[2] and thereafter accepted the plea offer that had been kept open for over two months.

An accused “may waive an attorney’s conflict, but only after an inquiry has shown that the defendant has an awareness of the potential risks involved in that course and has knowingly chosen it” (People v Solomon, 20 NY3d 91 , 95 [2012] [internal quotation marks and citation omitted]; see People v Wright, 27 NY3d 516 , 520-521 [2016]). We agree that defense counsel’s representation of defendant while his partner simultaneously, albeit very briefly, represented the Cl, a potential key prosecution witness, created a conflict of interest (see People v Solomon, 20 NY3d at 94-95 ). Defendant argues that this gave rise to an actual, rather than merely a potential, conflict of interest in that the Cl’s interests diverged from his and the partner actively represented the Cl.^[3] Even assuming that there was an actual conflict of interest (see id. at 96 ), we find that defendant