
    The People of the State of New York, Respondent, v Joseph T. Macerola, Jr., Appellant. The People of the State of New York, Respondent, v Michael Harry Letko, Appellant.
    Argued April 26, 1979;
    decided June 7, 1979
    
      POINTS OF COUNSEL
    
      E. Stewart Jones, Jr., for appellant in the first above-entitled action.
    I. Appellant Maceróla was denied his Sixth Amendment right to assistance of effective, competent counsel at trial because his attorney failed to inform Macerola of the risks involved in the joint representation by that attorney of Macerola and the codefendant Letko who had conflicting interests. (People v Dell, 60 AD2d 18; People v Gomberg, 38 NY2d 307; People v Gonzalez, 30 NY2d 28, 409 US 859; United States v Alberti, 470 F2d 878, 411 US 919; United States v De Berry, 487 F2d 448; People v Rivera, 62 AD2d 767; Salomon v La Vallee, 575 F2d 1051.) II. Defendant Macerola was denied his Sixth Amendment right to assistance of effective, competent counsel because the Trial Judge failed to make inquiry on the record to determine if Maceróla was aware of the potential risks involved in Macerola and Letko being jointly represented by one attorney. (People v Gomberg, 38 NY2d 307; People v Rivera, 62 AD2d 767; People v Kerr, 61 AD2d 762.) III. Improper conduct by Macerola’s counsel, the Assistant District Attorney, and the Trial Judge resulted in Macerola’s being deprived of his constitutional rights to effective assistance of counsel and a fair impartial trial. (People v De Jesus, 42 NY2d 519; People v Wright, 41 NY2d 172; People v Sandoval, 34 NY2d 371; People v Dickman, 42 NY2d 294; People v Carmack, 44 NY2d 706; People v Watson, 55 AD2d 873; People v Alicea, 37 NY2d 601; Berger v United States, 295 US 78.)
    
      Sol Greenberg, District Attorney (George H. Barber and F. Patrick Jeffers of counsel), for respondent in the first above-entitled action.
    I. Defendant was not denied his right to the effective assistance of counsel. (People v Brabson, 9 NY2d 173; People v Smith, 31 AD2d 847; People v La Bree, 34 NY2d 257; People v Gonzalez, 30 NY2d 28; People v Gomberg, 38 NY2d 307.) II. The trial court did not err by not asking defendant whether he was aware of the potential risks. (People v Gomberg, 38 NY2d 307; People v Allini, 60 AD2d 886; People v 
      
      Gonzalez, 30 NY2d 28.) III. Defendant received a fair trial. (People v Brabson, 9 NY2d 173; People v Smith, 31 AD2d 847; People v La Bree, 34 NY2d 257; People v Robinson, 36 NY2d 224; People v Patterson, 39 NY2d 288; People v Ruberto, 10 NY2d 428; People v Lovello, 1 NY2d 436; People v Ashwal, 39 NY2d 105; People v McKinney, 24 NY2d 180.)
    
      Thomas J. Neidl for appellant in the second above-entitled action.
    I. The representation of retained counsel for defendant-appellant was so ineffective as to deny him his right to adequate representation, and the trial court’s failure to inquire and ascertain whether each defendant had an awareness of the potential risks of joint representation constituted reversible error. (Glasser v United States, 315 US 60; People v Gonzalez, 30 NY2d 28, 409 US 859; People v Gomberg, 38 NY2d 307; United States v Truglio, 493 F2d 574; United States v Williams, 429 F2d 158, 400 US 947; United States v Lovano, 420 F2d 769, 397 US 1071; Campbell v United States, 352 F2d 359; United States v Wisniewski, 478 F2d 274; People v Crimmins, 36 NY2d 230.) II. The summation given by the Assistant District Attorney was so prejudicial, improper and inflammatory as to deny defendants a fair trial and militates for a reversal of the conviction. (People v Defense, 51 AD2d 924; People v Davis, 51 AD2d 974; People v Arce, 51 AD2d 1043; People v Cruz, 52 AD2d 1; People v Lombard, 4 AD2d 666.)
    
      Sol Greenberg, District Attorney (George H. Barber and F. Patrick Jeffers of counsel), for respondent in the second above-entitled action.
    I. The representation of defendant Letko and his codefendant Maceróla by the same retained attorney did not deprive defendant of a fair trial and does not constitute reversible error. (People v Gonzalez, 30 NY2d 28, 409 US 859; People v Gomberg, 38 NY2d 307; People v Brabson, 9 NY2d 173; People v Smith, 31 AD2d 847; People v La Bree, 34 NY 257.) II. The summation given by the Assistant District Attorney was not so prejudicial as to deny defendant a fair trial. In any event, defendant’s failure to object precludes review by this court. (People v Kingston, 8 NY2d 384; People v Robinson, 36 NY2d 224; People v Ruberto, 10 NY2d 428; People v Lovello, 1 NY2d 436; People v Ashwal, 39 NY2d 105; People v Castillo, 16 AD2d 235, 12 NY2d 732; People v Marks, 6 NY2d 67; People v Cicchetti, 44 NY2d 803.)
   OPINION OF THE COURT

Jasen, J.

The issue presented for our determination on these appeals is whether defendants were deprived of the effective assistance of counsel by reason of counsel’s joint representation of defendants at trial. While we had thought the applicable legal principles firmly established by prior decisions of this court, the circumstances of this case compel us to elaborate further on the safeguards which must be employed to ensure that a defendant is afforded adequate legal representation.

The pertinent facts are as follows: Defendants Maceróla and Letko were charged in a three-count indictment with the crimes of burglary in the second degree (Penal Law, § 140.25, subd 1, par [b]) and assault in the second degree (Penal Law, § 120.05, subd 1) as a result of events occurring during the evening hours of March 31, 1976, at the Governor’s Motor Inn in the Town of Guilderland. The indictment alleges, in substance, that defendants knowingly and unlawfully entered the Motor Inn with intent to commit the crime of assault, and that defendants did assault the proprietor and his wife, inflicting serious physical injury.

Defendants, represented by an attorney retained by both, were jointly tried. The jury rendered a verdict finding both defendants guilty of the crimes of burglary in the second degree and two counts of assault in the third degree. On appeal, the Appellate Division, finding no evidence in the record upon which defendant Letko’s burglary conviction could be sustained, modified the judgment of conviction by reversing so much thereof as convicted Letko of burglary in the second degree and vacated the sentence imposed thereon, and, as modified, otherwise affirmed the convictions as to both defendants. Defendants were granted leave to appeal to this court from the orders of the Appellate Division.

It is the contention of the defendants that they were deprived of their constitutionally guaranteed right to the effective assistance of counsel by reason of their representation by the same attorney at trial. Due to the failure of the Trial Judge to ascertain on the record whether each defendant was cognizant of the potential risks inherent in the simultaneous representation of codefendants at trial and due to the conflict which existed between the defenses sought to be established by each defendant, we now reverse the orders of the Appellate Division and order a new trial.

It is indisputable that one accused of committing a crime is entitled to the effective assistance of counsel. Such right is guaranteed by both the Federal and State Constitutions, and by State statute (US Const, 6th Arndt; NY Const, art I, § 6; CPL 210.15, subd 2), and courts must remain ever vigilant in their duty to ensure that a defendant receives effective legal representation. As we have recognized, effectuation of this duty may be significantly impaired where one attorney "simultaneously represents the conflicting interests of a number of defendants.” (People v Gomberg, 38 NY2d 307, 312, citing Glasser v United States, 315 US 60, 70.)

While the joint representation of multiple defendants is certainly not per se violative of one’s constitutional right to the effective assistance of counsel (People v Gonzalez, 30 NY2d 28, 34, cert den 409 US 859; Holloway v Arkansas, 435 US 475, 482), we have charged the trial court, in cases where codefendants are represented by a single attorney, with the weighty responsibility of determining whether "the defendant’s decision to proceed with his attorney is an informed decision.” (People v Gomberg, 38 NY2d 307, 313, supra.) The rationale for imposing such duty is obvious. It is all too apparent that the respective interests of each defendant which must be zealously safeguarded are oftentimes at odds, making crucial decisions by defense counsel during the entire criminal proceeding all the more difficult, and, at times, precluding certain defense strategies. For example, an attorney may be less than willing to engage fervently in plea negotiations to obtain a lesser charge for one defendant if to do so would require that defendant to testify against the other defendants, or to call a defendant to testify on his own behalf when his testimony may be detrimental to other defendants whom the attorney represents. (See, generally, Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn L Rev 119, 125-135.)

Defendants, however, often unschooled in the nature of criminal proceedings, may not always sense when a conflict of interest does exist or perceive how such conflict may run counter to the effectiveness of his attorney’s representation. Thus, before the formal commencement of trial, it is the responsibility of the Trial Judge, independent of the attorney’s obligation to inform his clients of any conflicting interests which may hinder his representation, to "ascertain, on the record, whether each defendant [represented by the same attorney] has an awareness of the potential risks involved in that course and has knowingly chosen it.” (People v Gomberg, 38 NY2d, at pp 313-314, supra; see, e.g., Glasser v United States, 315 US 60, 71, supra; United States v Wisniewski, 478 F2d 274, 285; People v Coleman, 42 NY2d 500, 508-509; People v Rivera, 62 AD2d 767, 770; People v Kerr, 61 AD2d 762; People v Allini, 60 AD2d 886, 889-890; ABA Standards Relating to the Function of the Trial Judge, § 3.4.) While a defendant may choose to retain his attorney, such choice may be made only after the defendant is informed of the possible ramifications which joint representation might spawn when conflicting interests arguably exist. Only after sufficient admonition by the trial court of the potential pitfalls of joint representation can it be said that a defendant’s right to the effective assistance of counsel is adequately safeguarded. If such admonition does appear on the record, appellate courts are able to determine whether a defendant’s decision to retain his attorney is indeed an informed choice.

Here, however, the record is devoid of any indication that the Trial Judge, by proper inquiry, took the necessary precautions to ensure that the defendants perceived the potential risks inherent in joint representation. Thus, because of this absence of a proper inquiry on the record, we are unable to ascertain whether the defendants’ decision to proceed with their attorney was knowingly and intelligently made, or whether they merely acquiesced out of ignorance to their joint representation. Although this omission by the Trial Judge was error, there remains for our consideration whether such failure to inquire mandates that defendants’ convictions be vacated and a new trial ordered.

Insofar as joint representation of codefendants is not per se violative of the constitutional guarantee to the effective assistance of counsel (see, e.g., Holloway v Arkansas, 435 US 475, 482, supra), there exists no compelling reason to adopt a rule which would automatically equate the trial court’s failure to undertake proper precautionary measures with an error of constitutional magnitude requiring reversal in every instance. There may always exist those cases in which joint representation of multiple defendants is, without doubt, justified, and the court’s neglect in admonishing codefendants of the potential risks entailed in joint representation would not deprive, without more, a defendant of his right to the effective assistance of counsel. However, where a Trial Judge has failed to make satisfactory inquiry and a defendant can demonstrate that a conflict of interest, or at least the significant possibility thereof, did exist, a new trial must be ordered for "[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” (Glasser v United States, 315 US 60, 76, supra; see People v Gomberg, 38 NY2d 307, 312, supra; United States v Lawriw, 568 F2d 98, 104-105, cert den 435 US 969, reh den 436 US 951; United States ex rel. Hart v Davenport, 478 F2d 203, 209-211.)

In this case, the record reveals that there was indeed a conflict of interest which endangered each defendant’s right to receive advice and assistance from an attorney whose paramount responsibility is to that defendant alone. Defense counsel found himself in a very awkward position at trial in that by attempting to establish a separate defense for each defendant, he was, by implication, incriminating the other defendant. Thus, to establish Macerola’s defense to the assault charges, it was necessary for counsel to attribute the responsibility for the physical injuries to Letko. Further, to establish Letko’s defense to the burglary charge, defense counsel had to stress that only Maceróla entered the private office at the Motor Inn. As admitted by defense counsel in his summation: "There’s no testimony in the total record of anyone other than Mr. Maceróla — any other defendant, Mr. Letko — at any time was in that office.”

Nor does the fact that defendants were charged with accessorial liability (Penal Law, art 20) ameliorate the inherent dangers when counsel for defendants attempted to represent their conflicting interests, as the dissent would surmise. Quite to the contrary, it becomes even more critical where one defendant is charged with the criminal conduct of another that he be represented by an attorney who, without the constant need to balance delicately competing interests, is free to demonstrate, by extensive examination of his own client or by penetrating cross-examination of other defendants, that the defendant whom he represents did not harbor the culpability required to sustain a conviction on the theory of accessorial liability. Simply put, when defendants are charged with accessorial liability, this only enhances the need to be represented by separate counsel.

Defendants having demonstrated an apparent conflict, it becomes unnecessary for us to speculate, as the dissent would now do, as to the exact prejudice resulting from the defendants’ joint representation. The right of every person accused of committing a crime to the effective assistance of counsel is too fundamental to tolerate such conjecture by appellate courts, especially where, as here, the prejudice which results when dne attorney represents codefendants with conflicting interests may never clearly manifest itself in the record. (Cf. People v Felder, 47 NY2d 287.) As observed by the Supreme Court: "Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.” (Holloway v Arkansas, 435 US 475, 489-490, supra [emphasis added].) Since the trial court failed to ascertain on the record whether each defendant had an awareness of the potential risks of joint representation and since defendants have demonstrated the existence of a conflict of interest, a new trial is required.

Accordingly, the orders of the Appellate Division should be reversed and a new trial ordered.

Gabrielli, J.

(dissenting). The orders of the Appellate Division should be affirmed and the defendants’ convictions should be sustained in every respect. Therefore, I dissent from the holding by the majority.

It is appropriate to set forth a brief description of what occurred when the defendants entered the motel premises owned by the victims Donald and June Hauffe, with the obvious intention of retaliating for whatever occurred to defendant Macerola’s mother, who apparently had become involved in an altercation on the premises a few nights before. Maceróla sought out the owner, Donald Hauffe, and began to abuse him. Hauffe, frightened by his demeanor, then left Maceróla to call the police. Maceróla followed him into the living quarters, picked up Hauffe and threw him into the corner. When the fracas moved into the public area Letko, Macerola’s codefendant and coconspirator, began punching Hauffe and knocked him to the floor. Letko then broke Hauffe’s nose and began the process of gouging out Hauffe’s eyes. When Mrs. Hauffe came to the aid of her husband, Letko, who is six feet four inches tall and weighs 525 pounds, struck at her, causing her to hit her head on an air conditioner and to fall against a table. Both victims sustained serious injuries, resulting from the obviously unprovoked actions of both Maceróla and Letko. The jury was properly instructed by the court that the defendants were accused and charged as having acted in concert.

It is upon this factual background that defendants claim they were deprived of effective assistance of counsel because of the now perceived possible conflict of interest between the defense which each defendant might have offered. In the context of the factual background revealed by the record in this case, it is inconceivable that there could be any conflict of interest between these defendants or, indeed, any inconsistencies in their respective defenses to the charges. In such circumstances, a claim of deprivation of effective assistance of counsel just cannot be sustained, even under the factual claims made by defendants themselves regarding these brutal assaults.

When defendants Maceróla and Letko were arrested and accused of burglary and assault they retained Armand Riccio to represent them both and conduct their defense. An experienced trial lawyer, as conceded by all, Attorney Riccio furnished both defendants with forceful, competent and effective representation throughout the trial. Now the defendants, appealing their criminal convictions, seek to renege on their choice, complaining that they were somehow denied their right to effective assistance of counsel.

This right actually encompasses two conflicting interests of the defendants, making it necessary to carefully balance them. One interest is, of course, the right to be free of any potential conflict of interest that may arise when one lawyer represents two or more defendants; and, secondly, and of equal importance, is the right of every defendant to select counsel of his choice, and this right may well be interfered with if the trial court injects himself too actively into the advisability of joint representation. As we said in People v Gomberg (38 NY2d 307, 312-313): "[a]n important concomitant of the right to counsel is the obligation of the courts to respect a selection of counsel made by the defendant and such choice should not be lightly interfered with. (See United States v Sheiner, 410 F2d 337, 342, cert den 396 US 825.) Once counsel is selected, the evolving relationship of attorney and client becomes increasingly close and intimate. In order to give proper professional guidance to his client, the attorney should be made fully cognizant of the relevant facts. (ABA Standards Relating to the Defense Function, §§ 3.1, 3.2; see Whiting v Barney, 30 NY 330, 332-333.) Trial strategy and tactics must be carefully planned and discussed. In order to insure that the attorney and client have the privacy necessary for effective representation, we have in our State, as a matter of public policy, given confidential attorney-client communications a privileged status. (CPLR 4503; Richardson, Evidence [10th ed], § 411, pp 404-405.) It has even been suggested that the freedom of confidential communication between lawyer and client is as valuable as the privilege against self incrimination. (See People v Lynch, 23 NY2d 262, 271.)”

Recognizing the fine balance that must be struck if these two important but conflicting rights are to be respected, we have evolved the necessary rules for joint representation. First, we note that joint representation is not per se violative of constitutional guarantees of effective assistance of counsel. "This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation. * * * 'Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack’ Glasser v United States [315 US 60, 92] (dissenting opinion)” (Holloway v Arkansas, 435 US 475, 482-483; accord People v Gomberg, 38 NY2d 307, supra; People v Gonzalez, 30 NY2d 28).

Any inquiry by the court as to whether counsel has perceived a possible conflict of interest and informed his clients of it should necessarily be limited in scope to avoid interference with the attorney-client relationship (People v Gomberg, supra, at pp 313-314). Given the limited nature of the inquiry, I agree with the majority that it is sophomoric to say that the Constitution mandates a reversal without any showing of prejudice whenever the court fails to inquire.

The record in this case does not indicate that either defendant was in any way prejudiced by the joint representation. They merely intimate how their interests might have conflicted if a different theory of defense was used. This was not a case where a defendant testified and made statements shifting the blame to his codefendant as in Gomberg. Nor is it a case where evidence was admissible against only one codefendant but was nevertheless not objected to on behalf of the other, as in Glasser. Counsel was not precluded from cross-examining any defense witnesses because he was privy to their secrets as in Holloway. It is, pure and simple, a case where the defendants agreed totally on their story, so access to another attorney would not have changed matters.

As in Gonzalez, "both defendants had the same interest in discrediting the testimony of the People’s witnesses” (People v Gonzalez, 30 NY2d 28, 33, supra). Their defense was essentially that Maceróla was legitimately at the Governor’s Motor Inn when he was attacked by Donald Hauffe, and that Letko came to his aid, injuring both Mr. and Mrs. Hauffe. Both defendants directed their trial strategy to convincing the jury that this story, and not the People’s, was the true version of what happened. Certainly there was no conflict between their interests where the common goal was so closely shared. Even the District Attorney, who candidly noted on oral argument that his policy is to inform the court when he perceives any indication of conflict, saw none. Mere speculation of what might have been is not enough. Actual, not imagined, conflict of interest must be shown before a defendant may successfully claim that he was denied the right to effective assistance of counsel (People v Gonzalez, 30 NY2d 28, 32, supra).

The only conflict pointed to in the majority opinion is that defense counsel might have reduced Macerola’s responsibility for the assaults in the eyes of the jury if he had emphasized that Letko caused the injuries. Since the defendants were charged with accessorial liability (Penal Law, art 20) the jury could have convicted Maceróla for Letko’s acts, and since Maceróla was portrayed as the instigator of the crimes it is inconceivable that emphasizing his alleged inactive role in the actual assault would have benefited him. Likewise, any claim of prejudice, as advanced by the majority, because defense counsel should have emphasized that Letko was not involved in the burglary evaporated when his conviction for that crime was set aside by the Appellate Division; and also because the jury properly received the case on the theory of accessorial conduct.

It is of no small moment that it be noted that the Appellate Division attached no significance whatsoever to the claims of the defendants and, indeed, both opinions in that court treated the issue with obvious disdainful insignificance, presumably for the reasons expressed in this dissent.

In sum, absolutely no conflict of interest, or even a possibility thereof, has been demonstrated. Neither has there been any showing of any prejudice whatsoever, in any manner or form and no legal or logical reason to reverse the convictions has been shown. I, therefore, vote to affirm the orders of the Appellate Division.

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

In each case: Order reversed, etc. 
      
      . The trial court charged assault in the third degree as a lesser included offense of assault in the second degree with respect to the attack upon the proprietor of the Motor Inn, Donald Hauffe. The trial court only submitted the crime of assault in the third degree in reference to the assault upon the proprietor’s wife, June Hauffe.
     
      
      . Separate counsel, different from counsel retained by defendants at trial, represented the defendants on their appeals to the Appellate Division and this court.
     
      
      . Every attorney is under an ethical obligation to disclose fully to each client the possible implications of joint representation, and a lawyer may not act for the client unless the client has expressly consented to that course of representation. (Code of Professional Responsibility, EC 5-16, DR 5-101, subd [A]; DR 5-105, subds [B], [C]; ABA Standards Relating to the Defense Function, § 3.5, subds [a], [b].) Here, there is no evidence that the defense attorney fulfilled this obligation.
     
      
      . As we recognized in People v Gomberg (38 NY2d 307, 312, supra), “an important concomitant of the right to counsel is the obligation of the courts to respect a selection of counsel made by the defendant”. By requiring a Trial Judge to apprise a defendant of the potential risks involved in joint representation, no violence befalls the right of a defendant to select an attorney of his own choosing. Rather, we are merely ensuring that such choice is intelligently and knowingly made.
     
      
      . The factors and considerations which a Trial Judge should take into account when inquiring of a defendant whether he has an awareness of the potential risks involved when an attorney represents two or more defendants in a criminal proceeding were set forth in detail in People v Gomberg (38 NY2d 307, 312-314, supra.)
      
     