
    [783 NE2d 502, 753 NYS2d 437]
    The People of the State of New York, Respondent, v Lawrence D. Harris, Also Known as Dahu, Also Known as D., Appellant. The People of the State of New York, Respondent, v Anthony J. Wright, Also Known as Andrew D. Smith, Also Known as C., Appellant.
    Argued October 17, 2002;
    decided November 21, 2002
    
      POINTS OF COUNSEL
    
      Robert J. Boyle, New York City, for Lawrence Harris, appellant.
    I. Appellant Harris was denied effective assistance of counsel and due process of law when his attorney, with the knowledge of the District Attorney, simultaneously represented appellant and a major prosecution witness. (United States v Cronic, 466 US 648; Geders v United States, 425 US 80; White v Maryland, 373 US 59; Hamilton v Alabama, 368 US 52; Williams v Kaiser, 323 US 471; Burden v Zant, 24 F3d 1298; People v Ortiz, 76 NY2d 652; People v McDonald, 68 NY2d 1; People v Salcedo, 68 NY2d 130; Wood v Georgia, 450 US 261.) II. Appellant’s exclusion from two in camera hearings concerning the qualification of a sworn juror requires reversal and a new trial. (Kentucky v Stincer, 482 US 730; People v Mullen, 44 NY2d 1; Maurer v People, 43 NY 1; People v Morales, 80 NY2d 450; People v Sloan, 79 NY2d 386; People v Williams, 85 NY2d 945; People v Darby, 75 NY2d 449; People v Davidson, 89 NY2d 881; People v Sprowal, 84 NY2d 113; People v Antommarchi, 80 NY2d 247.) III. The trial court committed reversible error when it refused to discharge a sworn juror. (People v Johnson, 94 NY2d 600; People v Rodriguez, 71 NY2d 214; People v Santana, 221 AD2d 175; People v White, 204 AD2d 750.)
    
      Daniel R. Williams, New York City, for Anthony J. Wright, appellant.
    I. The trial court neither inquired into nor apprised appellant Wright of his lawyer’s past representation of the key prosecution witness and that conflict improperly impinged on his lawyer’s cross-examination of his former client. (People v Ortiz, 76 NY2d 652; People v Gomberg, 38 NY2d 307; United States v Levy, 25 F3d 146; Wood v Georgia, 450 US 261; Cuyler v Sullivan, 446 US 335; People v Sides, 75 NY2d 822; People v Wandell, 75 NY2d 951; People v Alicea, 61 NY2d 23; People v McDonald, 68 NY2d 1; United States v Locasio, 6 F3d 924.) II. Wright should have attended an in camera fact-finding hearing concerning the possible tainting of a sworn juror because Wright likely had information bearing on that issue. (People v Buford, 69 NY2d 290; People v Rodriguez, 71 NY2d 214; People v Mitchell, 80 NY2d 519; United States v De Los Santos, 819 F2d 94; People v Sprowal, 84 NY2d 113; People v Morales, 80 NY2d 450; People v Antommarchi, 80 NY2d 247; People v Odiat, 82 NY2d 872; People v Favor, 82 NY2d 254; People v Turaine, 78 NY2d 871.) III. The trial court erred in refusing to remove a juror who expressed concerns for her safety. (People v Arnold, 96 NY2d 358; People v Rodriguez, 71 NY2d 214; People v Santana, 221 AD2d 175, 87 NY2d 925; People v White, 204 AD2d 750, 83 NY2d 1008; People v Torpey, 63 NY2d 361; People v Blyden, 55 NY2d 73; Quercia v United States, 289 US 466; People v Buford, 69 NY2d 290.) IV. Two key prosecution witnesses poisoned the trial when they said that testifying jeopardized their safety. (People v Rivera, 160 AD2d 267; People v Rudd, 125 AD2d 422; People v Sepulveda, 105 AD2d 854; People v McLeod, 84 AD2d 794; People v Bryant, 77 AD2d 603; People v Brown, 76 AD2d 932; People v Jackson, 40 AD2d 1006; People v Wortherly, 68 AD2d 158; People v Wilson, 195 AD2d 493.) V. Prosecutorial misconduct poisoned the trial because the prosecutor used a member of the defense team to help get the confidential informant’s cooperation.
    
      Louise K. Sira, District Attorney, Johnstown, for respondent.
    I. The court below did not err, as a matter of law, in its determination that appellants were not denied effective assistance of counsel due to conflict-of-counsel issues raised at trial; nor did the conflicts themselves, under the circumstances at trial herein and as resolved on the record herein, deny appellants due process in the form of a fair trial. (Burden v Zant, 24 F3d 1298; Cuyler v Sullivan, 446 US 335; Mills v Scully, 653 F Supp 885, 826 F2d 1192; Spencer v Donnelly, 193 F Supp 2d 718; Barefoot v Estelle, 463 US 880; Smith v Newsome, 876 F2d 1461; People v Blake, 35 NY2d 331; People v Leonti, 18 NY2d 384; People v lannelli, 69 NY2d 684; People v Arthur, 22 NY2d 325.) II. The potential conflict raised by the past representation of a prosecution witness by appellant Wright’s attorney was ameliorated by the witness’s waiver of his attorney-client privilege and by his express willingness to be fully cross-examined by his former attorney and, thus, was not significant and did not either operate on the defense or have any adverse impact upon the representation afforded to appellant Wright by his attorney; moreover, the attorney’s cross-examination was representative of the overall defense strategy; under the latter circumstances, automatic reversal is not warranted, nor is it required by law on the basis that the trial court did not inquire directly of appellant Wright about the potential conflict. (People v Gomberg, 38 NY2d 307; People v Lombardo, 61 NY2d 97; People v McDonald, 68 NY2d 1; People v Mattison, 67 NY2d 462; People v Wandell, 75 NY2d 951; Holloway v Arkansas, 435 US 475; Cuyler v Sullivan, 446 US 335; Wood v Georgia, 450 US 261; People v Ortiz, 76 NY2d 652; People v Jordan, 83 NY2d 785.) III. Appellants’ presence at the inquiries made of sworn jurors was not required, and their absence therefrom does not mandate reversal or a new trial. Appellants’ interests were protected by the presence and active participation of their attorneys; the inquiries did not involve factual issues bearing on the guilt or innocence of appellants, and there was no issue about which appellants would have had personal knowledge useful in advancing their position or in countering the People’s position at trial. (People v Darby, 75 NY2d 449; People v Torres, 80 NY2d 944; People v Morales, 80 NY2d 450; People v Rodriguez, 85 NY2d 586; People v Spotford, 85 NY2d 593; People v Rios, 185 AD2d 1002, 81 NY2d 846, 228 AD2d 526, denial of habeas corpus affd sub nom. People ex rel. Rios v Irvin, 256 AD2d 1169, 93 NY2d 816; People v Mullen, 44 NY2d 1; People v Gamble, 173 AD2d 555, 78 NY2d 1076; People v Romero, 172 AD2d 272, 78 NY2d 973; People v Roman, 88 NY2d 18.) IV. The trial court’s decisions to retain a sworn juror, who expressed “a tiny bit of concern” for her safety, was in all respects proper. (People v Buford, 69 NY2d 290; People v Johnson, 94 NY2d 600; People v Rodriguez, 71 NY2d 214; People v Konigsberg, 137 AD2d 142, 72 NY2d 912; People v Santana, 221 AD2d 175, 87 NY2d 925; People v White, 204 AD2d 750, 83 NY2d 1008; People v Santiago, 255 AD2d 63; People v Chamberlain, 178 AD2d 783, 79 NY2d 945; People v Bailey, 258 AD2d 807, 93 NY2d 1001; People v Guzman, 257 AD2d 630, 93 NY2d 971.) V. Appellants were not deprived of a fair trial due to testimony of a prosecution witness about not divulging her workplace for the reason of “personal safety” or due to testimony of another prosecution witness that testifying is not a favorable act where he lives and that he could be killed. (People v Wilson, 195 AD2d 493; People v Martinez, 238 AD2d 126, 90 NY2d 895; People v Ramos, 205 AD2d 404, 84 NY2d 831, habeas corpus dismissed sub nom. Ramos v Walker, 88 F Supp 2d 233; People v Mack, 197 AD2d 595, 82 NY2d 898; People v Rivera, 160 AD2d 267; People v Rudd, 125 AD2d 422; People v Martino, 244 AD2d 875, 92 NY2d 1035, 265 AD2d 945, 274 AD2d 980, 95 NY2d 868; People v Sepulveda, 105 AD2d 854; People v McLeod, 84 AD2d 794; People v Edwards, 261 AD2d 260, 93 NY2d 1017.)
    
      Eliot Spitzer, Attorney General, New York City (Laurie M. Israel, Caitlin J. Halligan, Daniel Smirlock and Robin A. Forshaw of counsel), for Attorney General of the State of New York, amicus curiae.
    I. Under both New York and federal law, a criminal defendant who argues that counsel’s conflict of interest deprived him of effective assistance of counsel can prevail only by establishing that his defense was actually prejudiced by the conflict. (People v Longtin, 92 NY2d 640; People v Ortiz, 76 NY2d 652; People v Allen, 88 NY2d 831; People v Lombardo, 61 NY2d 97; People v Macerola, 47 NY2d 257; People v McDonald, 68 NY2d 1; Wood v Georgia, 450 US 261; Glasser v United States, 315 US 60; Cuyler v Sullivan, 446 US 335; United States v Levy, 25 F3d 146.) II. Attorney Albanese’s unknowing simultaneous representation of appellant Harris and a confidential informant before trial did not deprive appellant Harris of constitutionally effective representation. (People v Ortiz, 76 NY2d 652; People v Lombardo, 61 NY2d 97; People v Krom, 61 NY2d 187; Burden v Zant, 24 F3d 1298; Holloway v Arkansas, 435 US 475; People v Mattison, 67 NY2d 462; Smith v Newsome, 876 F2d 1461.) III. Public Defender Martuscello’s past representation of a cooperating witness did not deprive appellant Wright of constitutionally effective representation. (People v Ortiz, 76 NY2d 652; People v Alicea, 61 NY2d 23; People v Lombardo, 61 NY2d 97; Winkler v Keane, 7 F3d 304; Wood v Georgia, 450 US 261.)
   OPINION OF THE COURT

Ciparick, J.

This joint appeal presents us with two distinct attorney conflict situations and defendants’ claims that such conflicts deprived them of their constitutional right to effective assistance of counsel. Defendant Lawrence Harris maintains that his attorney’s pretrial concurrent representation of a confidential informant, a key prosecution witness, was a conflict of interest that deprived him of effective assistance of counsel. Defendant Anthony Wright maintains that his attorney’s prior representation of another prosecution witness, James Hill, created a conflict not obviated by Hill’s consent to be cross-examined at trial by the attorney, and was further compounded by the Trial Judge’s failure to conduct an inquiry into the conflict. We conclude, under the circumstances presented here, that neither alleged conflict deprived defendants of effective assistance of counsel.

Defendants additionally contend that the trial court erred by refusing to remove a seated juror who expressed concern for her safety, and by holding an in camera hearing outside of defendants’ presence as to that juror’s fitness to serve. We perceive no error.

Between January and April of 1996, defendants engaged in the sale of crack cocaine from the home of James Hill and Sharon Cannizzo. Pursuant to their arrangement, defendants supplied the crack cocaine, and Hill and Cannizzo interacted with the customers. After their arrests, Hill and Cannizzo entered into cooperation agreements with the prosecution and testified against the defendants both before the grand jury and at trial.

A confidential informant also testified against the defendants pursuant to a cooperation agreement. The confidential informant had purchased cocaine from Hill on three occasions by executing “controlled buys” in conjunction with a police investigation.

An alleged conflict arose when defendant Harris’s pretrial attorney, Michael Albanese, simultaneously represented the confidential informant on unrelated charges. Upon discovering the “conflict” midtrial, when the informant’s name was revealed, trial counsel, William Lorman, brought it to the court’s attention, whereupon the court conducted an inquiry of Albanese. During the inquiry it was revealed that Albanese was unaware that he concurrently represented the informant from September or October 1996 through February or March 1997, and defendant Harris from August 1996 through January 1997. At the time Albanese began representing the confidential informant, he already had entered into a cooperation agreement with the District Attorney and had testified against Harris and Wright before the grand jury in July of 1996. The same District Attorney prosecuted both the informant and Harris and failed to reveal the conflict to Albanese or the court, also claiming unawareness of the conflict. Following the inquiry, County Court denied Harris’s motion for a mistrial.

Defendant Wright’s trial attorney, Fulton County Public Defender William Martuscello, had previously represented the prosecution witness, James Hill, on an unrelated matter. Before cross-examining Hill, the attorney, in defendant’s presence, elicited the fact of his prior representation on the record and obtained Hill’s consent to use any privileged information acquired as a result of the representation. Martuscello then proceeded with his questioning.

Defendants were each convicted of criminal possession of a controlled substance in the first degree, criminal facilitation in the second degree, conspiracy in the second degree, three counts of criminal sale of a controlled substance in the third degree and three counts of criminal facilitation in the fourth degree and were sentenced to consecutive prison terms for those crimes.

The Appellate Division modified the judgments in the interest of justice by directing that all sentences run concurrently, and, as so modified, affirmed. The Appellate Division rejected Harris’s ineffective assistance claim, concluding that his representation was not negatively impacted where his attorney was not aware of any conflict, and it held that Wright faced no conflict where his attorney’s former client consented to the cross-examination. A Judge of this Court granted leave to appeal and we now affirm.

Ineffective Assistance of Counsel

The first issue we address is whether defendant Harris was denied effective assistance of counsel by Albanese’s unknowing simultaneous representation of the confidential informant.

Both the Constitution of the United States and the New York State Constitution ensure the right to effective assistance of counsel (see US Const 6th Amend; NY Const, art I, § 6). Effective assistance is “representation that is reasonably competent, conflict-free and singlemindedly devoted to the client’s best interests” (People v Longtin, 92 NY2d 640, 644 [1998], citing People v Ortiz, 76 NY2d 652, 656 [1990]).

To prevail on an ineffective assistance of counsel claim, a defendant must first demonstrate the existence of a potential conflict of interest (see People v Ortiz, 76 NY2d 652, 656-657 [1990]). Then, the “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” (People v Ortiz, 76 NY2d 652, 657 [1990], quoting People v Alicea, 61 NY2d 23, 31 [1983]; see also People v Longtin, 92 NY2d 640, 644 [1998]).

“A lawyer simultaneously representing two clients whose interests actually conflict cannot give either client undivided loyalty” (People v Ortiz, 76 NY2d 652, 656 [1990]). In the context of joint representation of codefendants, once the presence of an actual conflict situation is established, “prejudice is presumed, for ‘courts will not enter into “nice calculations” as to the amount of prejudice resulting from the conflict’ ” (People v Mattison, 67 NY2d 462, 468 [1986], quoting People v Gomberg, 38 NY2d 307, 312 [1975]).

Whether a conflict operates on the defense is a mixed question of law and fact (see People v Ming Li, 91 NY2d 913, 917-918 [1998]; see also People v Berroa, 99 NY2d 134 [decided today]). Here, there is record support for the Appellate Division’s conclusion that the potential conflict did not operate on the attorney’s representation, and as such, the determination is beyond our further review. Albanese was unaware that the confidential informant was cooperating against Harris and although he advised the informant to continue cooperating with the District Attorney’s office — clearly contrary to the interests of defendant Harris — the representation was not affected by the potential conflict. The grand jury testimony had been given before Albanese began his representation of the informant, and during Albanese’s brief pretrial representation of Harris, he never learned the identity of the informant in the Harris case.

Typically, a conflict requiring reversal exists when defense counsel simultaneously represents defendant and the primary prosecution witness (see e.g. People v Wandell, 75 NY2d 951 [1990]). However, unlike this case, in Wandell both defense counsel and the prosecutor were aware of the conflict and failed to disclose it to the court. Here, although the interests of the defendant and the informant were materially divergent, the record supports the lower courts’ conclusion that defense counsel’s unawareness of the potential conflict precludes a finding that he was somehow inhibited in single-mindedly pursuing Harris’s best interests during the course of the representation. Put another way, there is nothing in the record to suggest that had Albanese earlier learned of the representation and withdrawn as Harris’s attorney, subsequent counsel would have defended him in some more vigorous, less inhibited manner.

While generally both defense counsel and the prosecution had a duty to recognize potential conflict situations, and neither side apparently was aware of the conflict, what is significant is that the conflict did not operate on defense counsel’s representation. Reversal of Harris’s conviction therefore is not required.

There similarly is record support for the lower courts’ conclusion that Wright was not deprived of effective assistance of counsel. Wright has demonstrated the existence of a potential conflict of interest since his trial attorney, Martuscello, previously represented an important prosecution witness (see People v Ortiz, 76 NY2d at 656-657). However, the record supports the conclusion that the potential conflict did not operate on the defense. Here, Hill expressly consented to cross-examination by his former attorney, who questioned Hill concerning his prior felony convictions and his motivation for testifying. His waiver of the attorney-client privilege terminated any duty of confidentiality owed to him by Martuscello and Hill’s consent to cross-examination obviated any potential conflict (see People v Lombardo, 61 NY2d 97, 103 [1984]). Hill had also been fully cross-examined by codefendant Harris’s attorney, William Lorman.

Defendant Wright further contends that County Court erred by not conducting an inquiry into Martuscello’s previous representation of Hill. A trial judge who is aware of a situation where a conflict may exist has an obligation to “conduct a record inquiry of each defendant whose representation is potentially conflict-ridden in order to ascertain whether he or she lias an awareness of the potential risks involved in that course and has knowingly chosen it’ ” (People v McDonald, 68 NY2d 1, 8 [1986], quoting People v Gomberg, 38 NY2d at 313-314). However, the failure to make such an inquiry is reversible error only when defendant has established the existence, or probable existence, of a conflict of interest, “which bears a substantial relation to ‘the conduct of the defense’ ” (McDonald, 68 NY2d at 9, quoting People v Lombardo, 61 NY2d 97, 103 [1984]). Since there is no indication here that the potential conflict bore a “substantial relation” to the representation, the trial court did not commit reversible error, although the better practice would have been to conduct a hearing (see Mickens v Taylor, 535 US 162, 173-174 [2002]).

In short, neither defendant Harris nor defendant Wright was denied effective assistance of counsel given that in both cases the alleged conflicts of interest did not impact adversely on the defense. Defendants, thus, did not suffer a Federal Sixth Amendment violation or a state constitutional violation based on ineffective assistance of counsel.

Juror Disqualification

Defendants also assert that it was error for the court to hold an in camera hearing as to a seated juror’s fitness to serve outside of their presence, and in not disqualifying the juror. Although a defendant has a statutory right to be “personally present during the trial of an indictment” (CPL 260.20), this right is only a qualified right when the proceedings involved are ancillary, rather than a material part of the trial (see People v Morales, 80 NY2d 450, 457 [1992]). We have previously held that an in camera hearing to determine a sworn juror’s fitness to continue to serve is an ancillary proceeding (see People v Mullen, 44 NY2d 1, 5-6 [1978]). When the proceeding is ancillary to the trial, we must determine the impact defendant’s absence had on his or her ability to defend (see id.; see also People v Aguilera, 82 NY2d 23, 34 [.1993]). The defendant’s presence is only necessary “where defendant has something valuable to contribute” (Morales, 80 NY2d at 456).

In this case, the presence of both defense counsel at the hearing was sufficient to ensure that the defendants received a “fair and just hearing” (see People v Mullen, 44 NY2d at 6). Whether a seated juror is grossly unqualified to serve is a legal determination (see Morales, 80 NY2d at 457), and as such the presence of counsel at a hearing to determine a juror’s qualification is adequate.

The standard for the disqualification of a seated juror has been codified at CPL 270.35. A sworn juror must be discharged when facts come to light, which were not known at the time the jury was empaneled, indicating that the juror is “grossly unqualified to serve” (see CPL 270.35 [1]). The court should conduct a “probing and tactful inquiry” into the facts of the situation and, in determining whether the juror’s state of mind will bear upon his or her deliberations, should carefully weigh the juror’s responses and demeanor (see People v Buford, 69 NY2d 290, 299 [1987]; see also People v Rodriguez, 71 NY2d 214, 219 [1988]). In determining that a juror is grossly unqualified, the court “must be convinced that the juror’s knowledge will prevent her from rendering an impartial verdict” (Buford, 69 NY2d at 299; see also People v Johnson, 87 NY2d 1006, 1008 [1996]).

In this case, there is no indication that the juror’s concern for her personal safety rendered her grossly unqualified to serve. While the juror felt “a teeny bit of concern for safety” based on a discrete incident that occurred before she was sworn, she assured the court that she would not allow her concern to play any part in her verdict. The court inquired if she could convince the attorneys, “that this situation that you’ve described has no impact on you and that you can absolutely sit in the jury box and keep an open mind and listen to the evidence and base your verdict solely on the evidence.” The juror unequivocally responded, “Yes.” The court made a probing and tactful inquiry into the juror’s concerns and correctly determined that the juror was not grossly unqualified to serve.

Defendants’ remaining contentions are likewise without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Smith, Levine, Wesley, Rosenblatt and Graffeo concur.

In each case: Order affirmed. 
      
      . Defendant Harris was represented by three attorneys in this matter. After Michael Albanese, defendant was briefly represented by a second attorney until the attorney who represented him at trial, William Lorman, was substituted on May 13, 1997.
     
      
      
        . The disqualification of a seated juror presents a different issue than the issue addressed in People v Antommarchi (80 NY2d 247 [1992]). Antommarchi held that a defendant must be present during voir dire of prospective jurors to be able to hear and evaluate their responses to questions concerning their ability to be fair and impartial (see id. at 250).
     