Opinion
May 20, 1996
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is affirmed.
The suppression court properly denied the defendant's application for full disclosure of the partially redacted search warrant application and supporting testimony on the ground that such disclosure would jeopardize the safety and anonymity of the confidential informant ( see, Roviaro v. United States, 353 U.S. 53, 62; People v. Castillo, 80 N.Y.2d 578, 582, cert denied 507 U.S. 1033), given that the defendant and his codefendants ( see, People v. Hunt, 227 A.D.2d 570 [decided herewith]; People v Perkins, 227 A.D.2d 572 [decided herewith]) were involved in narcotics trafficking and weapons possession, and had a history of assaultive behavior. Furthermore, under these circumstances the suppression court properly undertook inquiry on behalf of the defendant by accepting those of the defendant's written questions which the court deemed relevant to the issue of the informant's credibility ( see, People v. Castillo, supra, at 586).
We reject the defendant's contention that his conviction should be reversed on the ground that the trial court failed to make a Gomberg inquiry ( see, People v. Gomberg, 38 N.Y.2d 307). The defendant failed to demonstrate that his representation by the codefendant's counsel at a proceeding on March 19, 1992, constituted a conflict of interest which "affected", "operated on", or "[bore] a substantial relation to" the conduct of his defense ( People v. Ortiz, 76 N.Y.2d 652, 657; see, People v Recupero, 73 N.Y.2d 877, 879; People v. Alicea, 61 N.Y.2d 23, 31).
The handwritten pages of the ledger book containing the business accounts of the drug operation were properly ruled admissible by the court as this evidence was relevant and material to establish the defendant's participation in the conspiracy to prepare, cook, and package crack cocaine for distribution. Furthermore, the handwritten pages in the ledger book which referred to prior drug transactions were properly admitted to establish that he knowingly and intentionally acted in concert with his two codefendants to package and sell crack cocaine ( see, People v. Kanston, 192 A.D.2d 721). The court's failure to give a limiting instruction was harmless because the evidence of the defendant's guilt was overwhelming ( see, People v. Crimmins, 36 N.Y.2d 230; People v. Williams, 197 A.D.2d 722).
The defendant's remaining contentions are either unpreserved for appellate review ( see, CPL 470.05) or without merit. Thompson, J.P., Hart and McGinity, JJ., concur.
The defendant was deprived of his right to counsel at a proceeding held on March 19, 1992, relating to his application to suppress evidence. At that proceeding, the defendant's counsel failed to appear, and counsel for a codefendant said he was appearing on his behalf. After extensive arguments on the record between the court and counsel appearing for the defendant's counsel, the court ruled that none of the questions submitted by the defendant's counsel in writing should be posed to a confidential informant at a reopened in-camera hearing ( see, People v. Castillo, 80 N.Y.2d 578, 586, cert denied 507 U.S. 1033; People v. Jones, 145 A.D.2d 648; People v. Speller, 133 A.D.2d 865). Therefore, the in-camera hearing was never reopened.
A defendant has the absolute right to counsel's presence at all critical stages of a criminal proceeding ( see, People v Ciaccio, 47 N.Y.2d 431, 436). Oral colloquy on the formulation of questions to be posed to the confidential informant and the determination of whether the in-camera hearing should be reopened was an essential step in the defendant's effort to controvert a search warrant ( see, People v. Torres, 224 A.D.2d 269), and this constituted a critical stage of the criminal proceeding.
Although the counsel for a codefendant said he would protect the defendant's rights, there was no substitution of counsel, nor any evidence whatsoever that the defendant consented to this procedure. Therefore, the question of whether the codefendant's counsel's representation of the defendant would have created a significant possibility of a conflict of interest ( see, People v Ortiz, 76 N.Y.2d 652, 657), had there been a substitution of counsel, is not before us. Further, the question of whether the defendant was prejudiced by the absence of his counsel is not before us. Deprivation of the right to counsel at a critical stage of a criminal proceeding is so basic that harmless error analysis is inapplicable ( see, People v. Hilliard, 73 N.Y.2d 584; People v. Margan, 157 A.D.2d 64, 69).
Accordingly, I vote to remit the matter of the Supreme Court, Kings County, for a new hearing and determination on whether the in-camera hearing should be reopened.