
    The People of the State of New York, Respondent, v John Lloyd, Appellant.
    Argued September 5, 1980;
    decided October 9, 1980
    
      POINTS OF COUNSEL
    
      Barry Gene Rhodes for appellant.
    I. At a trial where two defendants are represented by a single attorney, neither a perfunctory examination by the presiding Judge on the issue of joint representation nor a statement by the lawyer that a member of his firm discussed the matter with defendants constitutes a knowing and intelligent waiver of independent, conflict-free counsel. The examination must bethorough, particularly where the presiding Judge perceives a conflict of interest. (Glasser v United States, 315 US 60; Holloway v Arkansas, 435 US 475; People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307; People v Gonzalez, 30 NY2d 28, 409 US 859; People v Reason, 37 NY2d 351; United States v Lawriw, 568 F2d 98; United States v Mahar, 550 F2d 1005; Abraham v United States, 549 F2d 236; United States v Carrigan, 543 F2d 1053.) II. Since there was an inadequate waiver on the issue, and the interests of appellant and the acquitted codefendant conflicted, there should be a new trial. (United States v Mandell, 525 F2d 671, 423 US 1049; People v Macerola, 47 NY2d 257; Lollar v United States, 376 F2d 243; Holloway v Arkansas, 435 US 475; Glasser v United States, 315 US 60; People v Gomberg, 38 NY2d 307.) III. The instructions to the jury on intent impermissibly shifted the burden of proof on that issue to defendant. (People v Patterson, 39 NY2d 288, 432 US 197; People v Bennett, 29 NY2d 462; People v McLucas, 15 NY2d 167.)
    
      John J. Santucci, District Attorney (Deborah Carlin Stevens of counsel), for respondent.
    I. Appellant knowingly waived his right to separate representation at trial on two occasions after sufficient inquiry. Moreover, no conflict of interest existed between appellant and his codefendant. (Glasser v United States, 315 US 60; People v Gonzalez, 30 NY2d 28; People v Gomberg, 38 NY2d 307; United States v Carrigan, 543 F2d 1053; People v Macerola, 47 NY2d 257; People v Coleman, 42 NY2d 500; Salomon v La Vallee, 575 F2d 1051; United States v De Berry, 487 F2d 448; United States v Vowteras, 500 F2d 1210; United States v De Fillipo, 590 F2d 1228.) II. The court’s charge on intent was proper. (People v Robinson, 36 NY2d 224; People v Patterson, 39 NY2d 288, 432 US 197; Cupp v Naughten, 414 US 141.)
   OPINION OF THE COURT

Wachtler, J.

On this appeal by the defendant from an order affirming his conviction for assault, the primary question is whether the trial court adequately advised the defendant of the potential conflicts of interest inherent in joint representation of the defendant and a codefendant by one attorney.

The defendant and his brother were jointly indicted and tried for attempted murder. At the trial they were both represented by the same attorney. However, before the trial commenced, the court informed the defendants and their attorney that "[tjhere could be a possibility of a conflict of interest, in that the first individual [the defendant] was on the scene, one of the brothers was there and then the other brother came at a later date.” The court indicated that it had "no objection if counsel and both defendants feel that there is no conflict of interest” and wished to continue the joint representation. In response to the court’s questions the defendant and his brother acknowledged that they understood what the court was saying, but that there was no conflict of interest between them and that they wished to continue with the joint representation.

After the jury selection had been completed, the court informed the defendants that they had the right to separate counsel and once again asked them if they wished to continue with the joint representation. The defendants however repeated their intention to continue with the joint representation. The defendants’ attorney also informed the court that the possibility of a conflict had been fully explained to the defendants. On inquiry by the court the defendants acknowledged that they understood.

At the trial the People submitted evidence that the defendant and his brother had severely beaten Sal La Micela on an Astoria street in March of 1977. According to the People’s witnesses the incident began when the defendant, John Lloyd, followed a girl who had refused to take a ride with him. When La Micela, who was acquainted with the girl, approached the defendant, the defendant got out of his car and beat La Micela with a long stick or bat, kicked him when he fell and then proceeded to smash the windshield of La Micela’s car. The defendant’s brother, who happened to be walking a dog nearby, joined the defendant and also hit and kicked La Micela.

The defendant, on the other hand, testified that he had acted out of self-defense. Both the defendant and his brother testified that the brother did not arrive until the fight was nearly over and that the brother took no part in the beating. The jury found the defendant guilty of assault but found his brother not guilty.

The defendant now claims that the court’s pretrial inquiry was not sufficiently thorough to assure that the defendant knowingly and intelligently waived his right to separate counsel. He urges that the court should have explained in detail the potential conflict of interest in this particular case, and should not have merely relied upon the statement by defendants’ counsel that this had been done.

An attorney must, of course, realize and inform his client of any potential conflict of interest (People v Gomberg, 38 NY2d 307, 314). And, in this State, the Trial Judge also has an independent obligation to insure that two or more defendants represented by the same attorney are aware of the potential risks involved in joint representation (People v Macerola, 47 NY2d 257, 263; but see Cuyler v Sullivan, 446 US 335). Generally, however, the court’s inqiry need not be as thorough or as detailed as that required of the attorney. First, prior to trial, when the inquiry should be made, the court may not be fully aware of the evidence, the nature of the defendants’ case or its ramifications (People v Gomberg, 38 NY2d 307, 314, supra). Secondly, and more important, to require the defendant or his attorney to disclose to the court details of the defense, defense conferences, or strategy would in itself invade the defendants’ rights, including the right to counsel (People v Gomberg, supra, p 313).

The argument that the court should be required' to explain in detail any potential conflict of interest with specific reference to the facts or. posture of the particular case was recently and unsuccessfully made in People v Ortiz (49 NY2d 718). In Ortiz, the Trial Judge did no more than advise the defendants in general terms that the joint representation by a single attorney presented the possibility of a conflict of interest during trial. In that case we noted that the court had fulfilled its obligations under the Gomberg and Macerola cases when, as in the case now before us, it "specifically alerted defendant to the possibility that a conflict of interest might flow from joint representation of defendant and a codefendant by the same attorney * * * informed defendant of his right to separate counsel” and was assured by the defendant that he wished to continue the joint representation.

In sum, although a court confronted with two or more defendants represented by one attorney must personally address the defendants to ascertain whether each "has an awareness of the potential risks involved in that course and has knowingly chosen it” (People v Gomberg, supra, pp 313-314; People v Macerola, supra, p 263), there is no prescribed format or catechism that the court must follow (cf. People v Nixon, 21 NY2d 338, 353). Because the exact nature of the defense and particularly defense strategy must remain off limits to the court the extent of the precautions to be taken by the trial court to insure that the defendants perceive the risk inherent in joint representation must necessarily involve a measure of discretion.

Since we conclude that the trial court’s inquiry of the defendant and his counsel as to possible conflict of interest was sufficient to protect defendants’ right to effective assistance of counsel, the order of the Appellate Division should be affirmed.

Jones, J.

(dissenting). Because the decision of the majority in this case marks a significant departure from our recent writings and because the responsibility of the Trial Judge in cases involving joint representation should be made clear I am obliged to dissent.

This case presents the latest in a series of recent cases in which we have been called on to determine whether a defendant has been deprived of his constitutional right to effective assistance of counsel by reason of the fact that he and his codefendant have been represented by the same attorney. This defendant and his brother were represented by a single attorney at the trial of an indictment charging them, while acting in concert, with attempted murder in the second degree and assault in the first degree. Defendant was convicted of assault, first degree, and his brother was acquitted.

As the majority accurately states, the trial court expressly informed the two defendants both of the fact that there was the possibility of a conflict of interest and that such possibility arose from the circumstance that defendant’s brother came on the scene at a point late in time. Also, the trial court was informed by defendant’s attorney that he had discussed the possibility of a conflict of interest with his attorney-father who "had spoken to both the defendants and then he related it onto me that everything was explained to them and the possibility of a conflict”. It is equally clear that both defendants indicated that it was their wish to proceed to trial with the same attorney, notwithstanding the possibility of a conflict of interest.

I had supposed that we had established the obligation of the trial court to ascertain on the record, before permitting defendants to proceed to trial with a single attorney, not only that each was aware of the possibility of a conflict in interest, but also that each "was cognizant of the potential risks inherent in the simultaneous representation of codefendants” (People v Macerola, 47 NY2d 257, 262; see People v Gomberg, 38 NY2d 307). In this instance, although the trial court expressly alerted the defendants to the fact that there existed the possibility of a conflict of interest, he did not himself explain the particulars or potential pitfalls of joint representation. The majority holds, however, that, in vievs) of the attorney’s statement, the trial court was required to go no further.

Very recently and subsequent to our decision in People v Ortiz (49 NY2d 718) on which the majority rely, we wrote, "[although the trial court may place some reliance on the statement by counsel that he has informed his clients of the pitfalls of joint representation and gotten their consent * * * such a statement alone does not relieve the trial court of the obligation 'independent of the attorney’s obligation’ * * * to probe the defendants’ awareness of the risks in the manner suggested by our discussion in Macerola. ” (People v Baffi, 49 NY2d 820, 822.) In this instance there was nothing other than the attorney’s conclusory statement on which the trial court could rely in the discharge of its . responsibility to defendant. Beyond confirmation that the defendants had been alerted to the fact' of possible conflict of interest, there could be no assurance that the details of the potential risks involved had been described to them or that they had each made an informed decision to proceed with a single attorney. The attorney’s discussion with his clients was related only in summary fashion; no particulars were furnished the court. Indeed, the fact that the attorney considered representation of one defendant by his partner-father and representation of the other by him an acceptable solution suggests that he himself máy not have fully perceived the essence of the right to independent representation.

We have indicated that a court may, in proper circumstances, rely at least to some extent on the participation of counsel in the protection of the rights of the defendant, as where, for instance, the court is satisfied that the attorney-client discussions alone or as supplemented by the court have adequately informed the defendant of the "pitfalls” and "potential risks”, as distinguished from the fact, of possible conflict of interest, and that the defendants have each made an informed decision. It is the obligation of the court, on the record, to make certain that the interests of the defendant have been adequately protected. The record in this case does not give the assurance that we have previously required.

The majority lays stress on the argument that to require the court to make certain that the defendant comprehends the particulars of the risks attending joint representation might result in an improper invasion of the confidentiality of the attorney-client relationship (p 111). We have noted that this is a consideration to be weighed by the trial court (People v Gomberg, 38 NY2d 307, 313, supra). Although the trial court should certainly be sensitive to the situation, the right to be free from improper intrusion is the defendant’s to assert. It ill becomes the prosecution to seek to justify what may have been a failure to protect the constitutional rights of the defendant on the ground that the defendant might not have wished to have such protection, particularly where, as here, the defendant is vigorously protesting that he was denied that very protection. A different situation would be presented if it appeared that the defendant opposed further inquiry by the trial court. There is nothing in the record here, however, to suggest that such was the cáse in this instance.

It would remain then, in my view, to be determined whether, there having been no sufficient discharge of the responsibility of the trial court, defendant has demonstrated "an actual conflict of interest 'or at least the significant possibility thereof ”. (People v Baffi, 49 NY2d 820, 822, supra.) It would only be in such event that defendant would be entitled to a new trial. While there is no proof in this case of actual conflict, I am satisfied that there existed a significant possibility of conflict.

There was proof that defendant had trailed and accosted a young lady as she walked to work in the early morning; that a passing friend responded to her request to be driven back home; that they were followed by defendant in his car; that when both cars stopped at a traffic light the other driver got out of his car and went back to defendant’s car; that defendant got out of his car with a bat or stick in his hand; that an altercation followed during the course of which defendant’s brother came out of his.house and joined the melee; that the other driver suffered fractures of the skull and wrists and that 19 sutures were needed to close his wounds. At trial defendant asserted the defense of justification and testified that his brother did not participate in the fight — testimony at variance with that of the victim and an independent eyewitness. It would seem that defendant should have been advised of the risk involved — that, while such testimony might exculpate his brother it would cast serious doubt on all his own testimony, including the credibility of his defense of justification. Any such advice, however, would have been adverse to the interests of the codefendant. The brother’s testimony related only to his own exculpation.

Whenever the active parts allegedly played by two defendants acting in concert in a single criminal transaction are different in nature, extent, origin and duration, and the strategies and tactics of their separate defenses may be different and even inconsistent, it must be concluded that there exists a significant possibility of prejudice to each when both are defended by the same attorney. This conclusion is not negated in this case by the fact that it appears that it was the brother rather than defendant whose interests were more likely to have been prejudiced or the circumstance that the verdicts demonstrate that the jury did differentiate as to the relative responsibilities of the two defendants.

For the reasons stated, I would reverse the order of the Appellate Division, vacate defendant’s conviction, and remit the case to Supreme Court for further proceedings on the indictment.

Chief Judge Cooke and Judges Jasen and Gabrielli concur with Judge Wachtler; Judge Jones dissents and votes to reverse in a separate opinion in which Judges Fuchsberg and Meyer concur.

Order affirmed.  