
    The People of the State of New York, Respondent, v Sergio Salcedo, Appellant.
    Argued May 30, 1986;
    decided July 10, 1986
    
      POINTS OF COUNSEL
    
      Stephen P. Younger and Gregory L. Diskant for appellant.
    I. Supreme Court erred in granting the People’s disqualification motion and deprived defendant of his right to counsel of his choice. (Matter of Abrams [John Anonymous], 62 NY2d 183; N. A. A. C. P. v Button, 371 US 415; Faretta v California, 422 US 806; Matter of Schumer v Holtzman, 60 NY2d 46; United States v Flanagan, 679 F2d 1072, 465 US 259; United States v Dolan, 570 F2d 1177; In re Gopman, 531 F2d 262; Matter of Grand Jury Proceedings, 428 F Supp 273; People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307.) II. Supreme Court improperly ordered the courtroom closed during its inquiry concerning the possible conflict of interest of defendant’s counsel of choice. (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; Press-Enterprise Co. v Superior Ct. of Cal., 464 US 501; People v Hinton, 31 NY2d 71, 410 US 911; People v Jones, 47 NY2d 409, 444 US 946; Globe Newspaper Co. v Superior Ct., 457 US 596; People v Brown, 79 AD2d 659, 56 NY2d 242; People v Ludolph, 63 AD2d 77; People v Gonzalez, 74 AD2d 928; People v Roberto, 67 AD2d 687; People v Morales, 53 AD2d 517.) III. Supreme Court admitted into evidence copies of defendant’s tax returns in violation of Federal and State tax secrecy laws. (Matter of New York State Dept. of Taxation & Fin. v New York State Dept. of Law, 44 NY2d 575; Kourakos v Tully, 92 AD2d 1051, 464 US 1070; Matter of Webster v Tully, 81 AD2d 683; United 
      
      States v Praetorius, 451 F Supp 371; People v Jones, 47 NY2d 528.) IV. Defendant was denied a fair trial by certain remarks made by the prosecutor during summation. (People v Whalen, 59 NY2d 273; People v Higgins, 88 AD2d 921; People v Schaaff, 71 AD2d 630; People v Libbett, 101 AD2d 705, 63 NY2d 763; People v Ashwal, 39 NY2d 105; People v Simmons, 110 AD2d 666; People v Demko, 71 AD2d 608; People v Jones, 47 AD2d 761; People v Bailey, 58 NY2d 272.)
    
      Elizabeth Holtzman, District Attorney (Shulamit Rosenblum and Barbara D. Underwood of counsel), for respondent.
    I. Defendant has failed to preserve for review his current claim that the prosecution failed to make an adequate showing of need for defendant’s testimony to warrant disqualification over his objection; moreover, the trial court properly disqualified counsel based on its factual finding, affirmed on appeal, that defendant’s waiver of the actual conflict of interest was neither knowing nor voluntary. (People v Tutt, 38 NY2d 1011; People v Dancey, 57 NY2d 1033; People v Dawson, 50 NY2d 311; People v Winchell, 64 NY2d 826; People v Whitaker, 64 NY2d 347; People v King, 61 NY2d 969; Morris v Slappy, 461 US 1; Cuyler v Sullivan, 446 US 335; Matter of Abrams [John Anonymous], 62 NY2d 183; People v Hall, 46 NY2d 873.) II. Defendant has failed to preserve for review his claim regarding removal of spectators and closure of the courtroom during part of the disqualification proceedings; in any event the clearing of the courtroom did not implicate defendant’s right to a public trial and the court ruling was a proper exercise of discretion. (People v Thomas, 50 NY2d 467; People v Tineo, 64 NY2d 531; United States ex rel. Lloyd v Vincent, 520 F2d 1272, 423 US 937; People v Jones, 82 AD2d 674, 55 NY2d 751; Matter of Abrams [John Anonymous], 62 NY2d 183; People v Brown, 79 AD2d 659, 56 NY2d 242; People v Gonzalez, 74 AD2d 928; People v Roberto, 67 AD2d 687; People v Morales, 53 AD2d 517; People v Ludolph, 63 AD2d 77.) III. Disclosure of tax returns by a private person violates neither the Federal nor the State tax confidentiality provisions; moreover, the remedy for such disclosure is not suppression. In any event, error, if any, resulting from admission of such evidence is not of constitutional dimension and is harmless in this case. (United States v Claiborne, 765 F2d 784; Marvin v United States, 732 F2d 669; United States v Barnes, 614 F2d 121, 446 US 907; People v Crimmins, 36 NY2d 230.) IV. Neither of the summation remarks complained of deprived defendant of a fair trial; moreover, error, if any, was harmless. (People v Galloway, 54 NY2d 396; People v Marks, 6 NY2d 67; People v Shaw, 112 AD2d 958; People v Ketchum, 35 NY2d 740.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The defendant appeals from an order of the Appellate Division affirming his conviction of arson and reckless endangerment. His primary contention is that he was deprived of his right to counsel of his choice when the trial court disqualified his retained counsel on application of the prosecutor. We agree with the defendant and, accordingly, reverse the order of the Appellate Division.

In 1980 the defendant was indicted for setting fire to a grocery store which he owned. Almost a year later the defendant’s cousin was indicted in connection with another arson incident, and retained the same attorney to represent him. Approximately one month prior to the date scheduled for the defendant’s trial the prosecutor moved to have the defendant’s lawyer disqualified from continuing to represent the defendant. In support of the motion the prosecutor claimed that a recent investigation showed that the defendant’s cousin and certain other family members were involved in an arson conspiracy, that several of them had been indicted and the investigation was still continuing with respect to certain homicides, that the defendant had knowledge of the conspiracy which the prosecution wished to use against the other family members, particularly his cousin, but that the defendant refused to cooperate when offered a lesser plea in exchange for his assistance. The prosecutor urged that joint representation of the defendant and his cousin by the same attorney created a conflict of interest for the attorney, and that the attorney should therefore be disqualified from continuing to represent the defendant.

In response, defense counsel stated that he had advised the defendant of the prosecutor’s plea offer and the potential conflict, that the defendant’s position was that he had no information to offer and did not wish to assist in the prosecution of relatives, and that he wished the attorney to continue with the joint representation. Defense counsel urged that the defendant had the right to waive the apparent conflict, particularly where the defendant and his cousin had been separately indicated for separate incidents, and that the grounds asserted by the prosecutor were, without more, insufficient to deprive the defendant of the right to continue to be represented by counsel of his choice.

At the hearing on the motion, the court advised the defendant of the prosecutor’s position, the possible conflict, and the defendant’s right to conflict-free counsel. The defendant stated that he understood and nevertheless chose to continue with the attorney, prompting the court to remark that the defendant did indeed seem to understand. The court then held an in camera hearing where the People produced witnesses tending to show that-the defendant did have knowledge of the alleged conspiracy. At the conclusion of the hearing, the court disqualified the attorney without providing any reasons.

Thereafter, the defendant was represented by court-op-pointed counsel. He still refused, however, to accept the prosecutor’s plea offer and, after a jury trial, was found guilty of arson and reckless endangerment.

In an opinion filed nearly two years after the disqualification, and about one year after the defendant’s conviction, the court stated that it had granted the People’s motion to disqualify defendant’s counsel because it found that there was a conflict, and the defendant did not waive his right to conflict-free counsel knowingly and intelligently. This determination was based on the fact that the defendant was nervous during the hearing, appeared reluctant to speak, directed one-word responses to the court and generally spoke softly through assigned counsel and did not communicate "any real understanding of the nature of the court’s concern.”

Initially we note that the court should have stated the reasons for the decision to disqualify the defendant’s attorney when that decision was made. Issuing the opinion regarding demeanor so long after raises questions particularly when, as here, it contains statements inconsistent with comments made by the court at the time of the hearing. However, accepting the latter statements as the basis for the court’s decision, we nevertheless find that the court’s action was unwarranted.

The decision to disqualify defendant’s retained attorney cannot be justified on the ground that this was essential to secure evidence for the People. On that point, it is sufficient to note that the court made no finding to this effect and there was no evidence in the record that the People had exhausted all other investigative means (Matter of Abrams [John Anonymous], 62 NY2d 183, 197-199). The court rested its decision entirely on the conflict of interest and the defendant’s failure to make a knowing and intelligent waiver during the court’s inquiry. The prosecutor urges that the court had the power to disqualify counsel on that ground.

The prosecutor’s argument misconceives the purpose of the court’s inquiry relating to an alleged or apparent conflict of interest on the part of defense counsel representing two or more defendants (People v Monroe, 54 NY2d 35; People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307). The object of the inquiry is not to determine whether the defendant should be permitted to waive his right to conflict-free counsel. The decision whether to waive the right is for the defendant to make (People v Macerola, supra, p 263). The court’s role is simply to insure through adequate warnings that the defendant’s decision has been made with awareness of his rights and the potential risks (supra). If the defendant indicates that he does not understand the warnings, the court should act to correct that problem by repeating the warnings, perhaps in simpler or clearer terms. That should suffice to insure that the defendant has made "an informed decision” (People v Gomberg, supra, p 313), unless the defendant is incompetent, in which case he should not be standing trial (CPL art 730).

Accordingly, the order of the Appellate Division should be reversed and the case remitted for a new trial.

Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order reversed and case remitted to Supreme Court, Kings County, for a new trial. 
      
       The court further concluded that the defendant’s "appearance and demeanor” also demonstrated that "any decision [he] might have made with respect to [retained counsel’s] continued representation was not a voluntary one”. In the context this apparently refers to the fact that a decision cannot be said to be voluntary unless it is knowing and intelligent. In any event, there was no finding that the defendant had been coerced into retaining the attorney or continuing the representation and thus we need not consider what measures a court should take in that extraordinary circumstance.
     