
    The People of the State of New York, Respondent, v Frank Burnette, Also Known as Clifford Boone, Appellant.
   Memorandum: Upon our review of the record of the hearing upon remittitur (see, People v Burnette, 117 AD2d 987), we agree that defendant was not deprived of the effective assistance of counsel as a result of his attorney’s prior joint representation of him and his codefendant for approximately three months following their arraignment. The hearing court properly concluded that the attorney disengaged himself from the joint representation before any conflict of interest materialized and that the defendant did not demonstrate that the conduct of his defense was in fact affected by the operation of the claimed conflict (People v Alicea, 61 NY2d 23, 30-31). Moreover, we conclude that the court properly denied defendant’s CPL 330.30 motion to set aside the verdict based upon a claim of newly discovered evidence. The record fully supports the conclusion that the codefendant’s exculpatory remarks at his sentencing were unworthy of belief and there is no probability that this evidence would have altered the jury’s verdict (see, People v Suarez, 98 AD2d 678, 679). (Resubmission of appeal from judgment of Supreme Court, Erie County, Marshall, J. — burglary, second degree.) Present — Callahan, J. P., Doerr, Den-man, Boomer and Schnepp, JJ.  