
    [786 NE2d 1255, 757 NYS2d 219]
    The People of the State of New York, Respondent, v Christopher A. Abar, Appellant.
    Argued January 8, 2003;
    decided February 18, 2003
    
      POINTS OF COUNSEL
    
      Richard V. Manning, Parishville, for appellant.
    I. The guilty plea, waiver of right to appeal and subsequent admissions to probation violations were involuntarily made by reason of ineffective assistance of counsel due to a conflict of interest in violation of appellant’s right to effective assistance of counsel. (People v Espinoza, 253 AD2d 983; Cuyler v Sullivan, 446 US 335; People v Shinkle, 51 NY2d 417; People v Herr, 86 NY2d 638.) II. The court erred by denying appellant’s CPL 440.10 motion without a hearing. (People v Moore, 244 AD2d 706.)
    
      Jerome J. Richards, District Attorney, Canton (Laurie L. Paro of counsel), for respondent.
    No conflict of interest existed due to trial counsel’s prior employment in the prosecutor’s office. (People v Moore, 244 AD2d 706; People v Shinkle, 51 NY2d 417; People v Herr, 86 NY2d 638; People v Sawyer, 83 AD2d 205.)
   OPINION OF THE COURT

Graffeo, J.

Defendant seeks to set aside his conviction on the ground that his attorney’s prior representation of the People as an assistant district attorney automatically denied him effective assistance of counsel. Because the record supports the Appellate Division’s determination that the alleged conflict did not operate on the defense, we conclude that the Appellate Division order upholding defendant’s conviction should be affirmed.

In April 1999 defendant Christopher A. Abar was arraigned on an indictment charging him with misdemeanor driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree, a class E felony, carrying potential terms of imprisonment of one year and lVs to 4 years, respectively. On August 30, defendant was indicted and arraigned on two counts of criminal contempt in the first degree in connection with his violation of an order of protection. These class E felony charges exposed defendant to a possible additional term of incarceration of lVs to 4 years for each count.

Six weeks later, pursuant to a counseled plea bargain, defendant pleaded guilty to one count of criminal contempt in the first degree, driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the second degree, in full satisfaction of both indictments and several other pending charges, including a class D felony charge of assault in the second degree. In accordance with the plea agreement, defendant waived his right to appeal. He was sentenced in February 2000 to three concurrent terms of probation, the maximum of which was five years on the criminal contempt conviction.

Defendant was again arrested in November 2000 for failing to comply with the terms of his probation. Defendant entered a negotiated plea of guilty, and County Court revoked the three probationary sentences. The court imposed a sentence of 1 to 3 years on the criminal contempt charge, with time served on the remaining two charges.

Beginning with his August 1999 arraignment and continuing through both pleas, defendant was represented by the St. Lawrence County Public Defender. Defendant was assigned new counsel for his direct appeal of the conviction and the sentence imposed on the probation violation. In his pro se CPL 440.10 motion to vacate the judgment of conviction, defendant claimed that the Public Defender’s representation constituted a conflict of interest and deprived him of the effective assistance of counsel because the attorney had prosecuted him on several of the charges involved in the plea bargain during her prior employment as an assistant district attorney in St. Lawrence County. County Court denied the motion, noting that defendant never indicated any dissatisfaction with defense counsel’s representation and failed to allege how her previous employment as a prosecutor had placed him at any disadvantage.

The Appellate Division granted defendant permission to appeal from the order denying his CPL 440.10 motion, joined it with his direct appeal and affirmed in all respects. A Judge of this Court granted defendant leave to appeal.

Defendant’s ineffective assistance of counsel claim is premised on his assertion that his lawyer did not adequately represent him due to her former prosecutorial activities as an assistant district attorney. Defendant alleges that his defense counsel handled the prosecution of the crimes charged in the April 1999 indictment. Defense counsel averred that she served as an assistant district attorney from January 1, 1996 through July 16, 1999, and during that time prosecuted criminal matters in the City of Ogdensburg and at times in the Town of Oswegatchie in St. Lawrence County. She acknowledged her involvement with charges against defendant in these courts, but did not recall the dates of the offenses. The record does contain correspondence she sent to the Ogdensburg City Court on February 22, 1999, recommending that the court seek a plea from defendant on the aggravated harassment charge and issue an order of protection.

The Federal and New York Constitutions both guarantee criminal defendants the right to effective assistance of counsel (see US Const 6th Amend; NY Const, art I, § 6). We have defined effective assistance as “representation that is reasonably competent, conflict-free and singlemindedly devoted to the client’s best interests” (People v Harris, 99 NY2d 202, 209 [2002] [internal quotation marks omitted]).

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. 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” (People v Ortiz, 76 NY2d 652, 657 [1990] [internal quotation marks omitted]). Whether a conflict of interest operates on the defense is a mixed question of law and fact and, as a result, our review is limited. We may disturb an Appellate Division determination on this issue only if it lacks any record support (People v Berroa, 99 NY2d 134, 142 [2002]; People v Harris, 99 NY2d 202, 210 [2002]; People v Ming Li, 91 NY2d 913, 917-918 [1998]).

Defendant submits that the potential for divided loyalties resulting from his counsel’s previous duties as a prosecutor impaired his defense. He contends that defense counsel failed to secure his release from incarceration on his own recognizance or on probation and declined to file a motion on his behalf requesting that the charges against him be handled as separate cases. Defendant further claims that he was counseled to accept the two plea bargains, despite his protestations of innocence. The People counter that no conflict was presented by defense counsel’s representation and that, even if the potential for conflict existed, defendant did not demonstrate that the alleged conflict operated on his defense.

We have held that a defense attorney who initially represented a defendant and during the pendency of the criminal proceeding then joined the District Attorney’s office as Chief Assistant District Attorney created an inherent conflict through an appearance of impropriety and “the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his active representation of defendant” (People v Shinkle, 51 NY2d 417, 420 [1980]). However, the concerns that arise when a defense attorney, who has acquired confidences from a client based on their attorney-client relationship, changes employment and undertakes the prosecution of that individual are not necessarily implicated here. Put another way, there is no evidence that the Public Defender obtained any information about defendant through her prior employment as an assistant district attorney that compromised her representation of him. But assuming for purposes of this appeal that her representation of defendant did pose a conflict, we turn to the second prong of conflict analysis.

Here, record evidence buttresses the Appellate Division’s finding that any conflict did not operate on the conduct of the defense. Given the circumstances of this case, defendant was uniquely situated to know of the potential conflict from the inception of his representation. In a sworn affidavit, defense counsel stated that she visited defendant in jail and inquired of him whether he was comfortable with her as his attorney in light of her prior position and he agreed to continue with her representation. Defendant admits to this conversation. Moreover, defendant affirmatively advised the court at his first plea allocution that he was satisfied with the legal services provided by his lawyer. Indeed, two favorable plea agreements were negotiated on defendant’s behalf, particularly since defendant faced four felony charges and multiple misdemeanor counts. Because there is record support for the finding that the conflict did not operate on the defense, we decline to disturb the Appellate Division’s determination.

Although our disciplinary rules as well as the American Bar Association standards cited by the dissent wisely caution against such potential conflicts, we decline to adopt the dissent’s rule requiring automatic reversal of a conviction. Instead, we have consistently applied both facets of the standard in evaluating conflict of interest claims (see People v Alicea, 61 NY2d 23 [1983]; see also People v Smart, 96 NY2d 793 [2001]; People v Longtin, 92 NY2d 640 [1998], cert denied 526 US 1114 [1999]; People v Recupero, 73 NY2d 877 [1988]; People v Perez, 70 NY2d 773 [1987]). Under our two-pronged standard, we have not reversed a conviction absent a showing that an alleged conflict operated on the defense. Notably, this formulation affords defendants greater protection than the constitutional harmless error standard (see People v Crimmins, 36 NY2d 230, 237 [1975]; see e.g. People v Smith, 97 NY2d 324, 330 [2002]). Rather than providing for reversal only where there is a significant possibility that, but for the error, the defendant would not have been convicted, the second prong of our conflict analysis requires only a showing that the alleged conflict in some way affected defendant’s representation (see e.g. People v Berroa, 99 NY2d 134, 142-143 [2002]).

In any event, defendant does not ask us to abandon this test. Instead, consistent with our conflict jurisprudence, he argues that his attorney’s prior employment created a conflict of interest and that this conflict affected his representation. Although not endorsing the professional judgment exercised by defense counsel in this case, we conclude that reversal is not warranted in light of the record support for the Appellate Division’s determination, under the second prong of our long-established standard, that the conflict did not operate on the defense.

The parties’ remaining contentions are without merit.

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

Smith, J.

(dissenting). Because it is an inherent conflict that the attorney first prosecuted the defendant and then became his defense attorney, I dissent.

While the attorney was a prosecutor in the St. Lawrence County District Attorney’s office, she prosecuted defendant for various charges, including assault in the third degree, aggravated harassment and aggravated unlicenced operation of a motor vehicle. Not long after prosecuting defendant, the attorney became defendant’s attorney, and was his attorney when he entered a plea covering these and other charges. As a result of the plea, defendant was sentenced to probation.

In the converse situation, that is, when an attorney prosecutes a defendant he formerly defended, the conviction must be vacated without the need to show that the conflict operated on the defense or actual prejudice. In People v Shinkle (51 NY2d 417 [1980]), citing to the American Bar Association (ABA) Standards Relating to Prosecution Function and the Code of Professional Responsibility, this Court held that “ [defendant, and indeed the public at large, are entitled to protection against the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight * * *” (id. at 421). Defendants have “the right to both the fact and appearance of unswerving and exclusive loyalty on the part of attorneys who represent them” (id.). Even though the defendant would not have entrusted confidential information to the attorney while she was a prosecutor, the rule in Shinkle should apply.

When the appearance of impropriety is consequential, it need not be anchored to the danger of abuse of client confidence (cf. People v Herr, 86 NY2d 638 [1995]). Avoidance of the appearance of impropriety is essential because charges of improper conduct are anathema to the legitimacy of the judiciary, which is dependent on the public perception that its proceedings are impartial and just.

The representation of a defendant by an attorney who prosecuted him gives rise to a consequential appearance of impropriety imbedded in the inherent conflict of interest of being in a position of having to undo charges that the attorney, as a prosecutor, felt were appropriate and just. The conflict is actual, not potential. The relevant authorities bear this out. Standard 4-3.5 (h) of the ABA Standards for Criminal Justice Prosecution Function and Defense Function (3d ed) provides that “[d]efense counsel who formerly participated personally and substantially in the prosecution of a defendant should not thereafter represent any person in the same or a substantially related matter.” Under DR 9-101 (b) (1) of the Code of Professional Responsibility, “[a] lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee * * *” (22 NYCRR 1200.45 [b] [1]). In this context, defendant was the private client. Unlike its counterpart in the ABA Model Rules of Professional Conduct, disqualification may not be waived (rule 1.11 [a] [“(e)xcept as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation”]).

More importantly, the attorney’s conduct in this case appears to violate Judiciary Law § 493, which establishes a per se rule against a former prosecutor defending the same person in the action he or she prosecuted. Judiciary Law § 493 provides as follows:

“An attorney, who directly or indirectly advises in relation to, or aids or promotes the defense of any action or proceeding in any court, the prosecution of which is carried on, aided or promoted by a person as district attorney or other public prosecutor, with whom such attorney is directly or indirectly connected as a partner; or who, having himself prosecuted or in any manner aided or promoted any action of [sic] proceeding in any court, as district attorney or other public prosecutor, afterwards directly or indirectly advises in relation to, or takes any part in, the defense thereof, as attorney or otherwise; or who takes or receives any valuable consideration from or on behalf of any defendant in any such action, upon any understanding or agreement whatever, express or implied, having relation to the defense thereof, is guilty of a misdemeanor.”

This case exemplifies the reason for the prohibition. Several of the charges, particularly the felony charges, arose from defendant’s contact with a woman he formerly dated, and the violation of an order of protection requiring him not to contact her. In prosecuting defendant, the attorney was protecting the victim against him. When defendant was initially charged with second-degree aggravated harassment, the attorney took the position that no reduction would be granted, and that defendant should either plead guilty or go to trial. She also requested a three-year order of protection. The attorney’s job as a defense attorney, to defend defendant against the charges, created an actual conflict. Thus, in light of the condemnation by the ethical rules and the criminal nature of such conduct under the Judiciary Law, an attorney’s representation of a defendant on charges the same attorney brought as a prosecutor gave rise to an actual and consequential conflict of interest that warrants vacating the guilty plea without the need to show that the conflict operated on the defense or the need to show prejudice.

The majority assumes that there was a “potential conflict” and finds that it did not affect the attorney’s representation of defendant, relying on the attorney’s affidavit that defendant agreed to her representation, and that he told the court that he was satisfied with her services. This is not a case of an attorney who undertakes the representation of a client whose interests might be adverse to those of a former client (see People v Ortiz, 76 NY2d 652, 656-657 [1990]). Rather, in this case, the attorney dealt with the same party, once as a prosecutor, and then as defense counsel, in the same proceeding. As soon as the attorney undertook the representation of defendant, she was laboring under an actual conflict based on her prior position as defendant’s prosecutor. While no one would dispute that there would be an actual conflict of interest had the attorney represented defendant while still a prosecutor, an actual conflict existed even though she was no longer a prosecutor at the time she represented him.

Moreover, a waiver of a fundamental right, in this case the right to conflict-free representation, requires a “searching inquiry” by the trial court to determine whether defendant understands the “danger and disadvantages” of giving up the fundamental right (People v Slaughter, 78 NY2d 485, 491 [1991]). No such inquiry took place here.

In any event, the record reveals that the attorney’s prosecution affected her defense. When defendant was arrested on April 5, 1999, based on the violation of the order of protection, he was prosecuted by the attorney. Defendant was incarcerated in lieu of bail, which was set at $2,500. After five months in jail, defendant was arraigned on August 30, 1999, now represented by the attorney. Despite the five months of incarceration, the attorney did not even request that bail be set at a lower amount, or that defendant be released under probationary supervision. Defendant remained in jail until October 12 when he pleaded guilty.

Because the number of charges defendant pleaded guilty to were less than the number of charges against him, the majority concludes that defendant got a good deal. Absent from the record, however, is the evidence that the attorney, as the prosecutor, had against defendant.

The per se rule, that defendant’s conviction must be reversed because his defense counsel prosecuted him in the same proceeding, is based not just on the ethics rules, which are guidelines and are not dispositive (People v Berroa, 99 NY2d 134, 140 [2002]), but on Judiciary Law § 493 which is the law of this state. Significantly, none of the cases cited by the majority concludes that Judiciary Law § 493 can be ignored where a prosecutor becomes the defense attorney in the same case.

In his brief, defendant cites to neither the ethics rules nor Judiciary Law § 493. While the majority concludes that it is unfair to raise an issue concerning Judiciary Law § 493 and the attorney’s representation of defendant, this case is not about the prosecution of the attorney for representing defendant after prosecuting him. Thus, it is irrelevant that the attorney has not had an opportunity to be heard. Rather, this case is about the impact of the attorney’s representation on defendant’s rights.

The impact of Judiciary Law § 493 on this case does not constitute a separate argument that had to be preserved. Instead, Judiciary Law § 493 buttresses defendant’s argument that the attorney’s representation, after prosecuting him in the same proceeding, created a conflict of interest (see State of New York v Green, 96 NY2d 403 [2001] [in an action where the State argued that defendants were owners liable for cleanup costs under Navigation Law § 181 (1), Court took judicial notice of environmental lien provisions of Navigation Law to buttress conclusion that defendants were liable]; compare Shepardson v Town of Schodack, 83 NY2d 894 [1994] [in a negligence action, town initially relied on statute requiring constructive notice, and then sought to rely on a separate statute requiring written notice]). The citing of Judiciary Law § 493 is no different from the citing of a relevant case not cited by the parties.

Even if Judiciary Law § 493 raised a separate issue, its consideration would be appropriate since it can be resolved on the record, and the People could not have countered below the conduct the statute prohibits and the attorney’s conduct (see id.; see also Sega v State of New York, 60 NY2d 183, 190 [1983]).

In addition, no preservation was required here because to have an attorney act as both prosecutor and defense attorney in the same proceeding calls into question the very integrity of the proceeding. Where the whole proceeding is flawed because it violates the Judiciary Law, no preservation is required (People v Agramonte, 87 NY2d 765, 769-770 [1996], citing People v Patterson, 39 NY2d 288, 295 [1976]; People v O’Rama, 78 NY2d 270, 280 [1991]; People v Ahmed, 66 NY2d 307 [1985]; People v Anderson, 16 NY2d 282 [1965]).

In sum, because the defense attorney prosecuted the defendant in the same case, because of the appearance of impropriety, because of the apparent violation of Judiciary Law § 493 and because the dual representation calls into question the integrity of the criminal proceeding, reversal of the conviction is required.

Chief Judge Kaye and Judges Ciparick, Wesley, Rosenblatt and Read concur with Judge Graffeo; Judge Smith dissents and votes to reverse in a separate opinion.

Order affirmed. 
      
      . Defendant had been incarcerated for several months following his 1999 arrest for violating the order of protection.
     
      
      . Although defendant claims that his attorney allowed him to remain in jail for 191 days, her representation did not commence until his arraignment on August 30, 1999, at which time she secured a $2,500 bail order on his behalf. She ultimately achieved defendant’s release pursuant to the first plea arrangement on October 12, 1999, 42 days after undertaking her representation. Defendant has never contended that the bail determination was an abuse of the trial court’s discretion.
     
      
      . We note that no argument pertaining to Judiciary Law § 493 has been raised by defendant and it is therefore unpreserved and waived. We find it deeply troubling that the dissent insinuates that defense counsel engaged in criminal conduct when she was not afforded the opportunity to address this issue in the courts below.
     
      
      . The current provision is almost identical to the original law enacted in 1846, which was divided into three provisions within chapter 120 of the Laws of 1846. Several years later, in 1852, the provisions were shifted to an article dealing with the duties of district attorneys (Rev Stat of NY, part I, ch XII, tit II, art 7, §§ 155-157 [4th ed 1852]). In 1881, the Legislature combined the three provisions into their present form, and placed it within a title of the Penal Code involving miscellaneous crimes (L 1881, ch 676, § 670). The next significant reclassification took place in 1965 when the Legislature transferred the provision to the Judiciary Law as a result of a major effort to rid the Penal Law of provisions that were primarily regulatory, but contained criminal sanctions (L 1965, ch 1031, § 129; Proposed New York Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] Commission Foreword, at vii). A diligent search has uncovered no relevant legislative history that would shed light on the intent of the provision. It might be argued that the provision should only be invoked by a district attorney when a defendant’s attorney previously worked in the district attorney’s office. That intent is not apparent from the face of the provision, which, using broad language, prohibits (1) the defense of an action by a partner of the district attorney prosecuting the action, and (2) the defense of an action by a former district attorney who prosecuted the action. Nothing indicates that the Legislature was concerned only with the danger that a former prosecutor would abuse confidential information learned as a prosecutor, but not with the avoidance of the conflict of interest arising from the switching of sides in the same proceeding. It could also be argued that the Legislature did not intend that a violation of the statute would warrant vacating a conviction. That may be true. But the argument of the dissent is not that conduct which appears to violate the provision requires vacating a conviction. That is required by the holding that a defendant has a fundamental right to effective assistance of counsel, which includes the right to conflict-free representation (see Wood v Georgia, 450 US 261 [1981]). Judiciary Law § 493 serves to buttress defendant’s argument that in this case the conflict was actual and consequential.
     
      
      . It should be made clear that it is not the view of the dissent that the attorney intentionally violated and is guilty under Judiciary Law § 493. Where the question is whether the defendant was denied effective assistance of counsel, it suffices that Judiciary Law § 493 prohibits the conduct engaged in by the attorney.
     