Opinion
6741/06.
Decided May 16, 2008.
Defendant Sada Hussain by: Frederick L. Sosinsky, Esq.
The Office of Charles J. Hynes, District Attorney for Kings County by: ADA Samantha Magnani, Esq. (at the trial) and ADA Monique Ferrell, Esq. (on the motion).
By a motion dated January 18, 2008, the defendant moves in part pursuant to CPL 330.30 (1) to setaside the verdict of guilty of the crime of Burglary in the First Degree, PL 140.30 (4) (displays a firearm), rendered on August 20, 2007 after a jury trial in Part 18 of the Supreme Court, Kings County, presided over by the Hon. Cheryl E. Chambers, on the ground that the conviction would, as a matter of law, be required to be reversed on appeal because defendant was denied the effective assistance of counsel under the Federal and New York State Constitutions resulting from trial counsel's dual representation of the defendant and his co-defendant father Azad Malik ("Malik") and for other failings by counsel.
Following the appointment of Justice Chambers to the Appellate Division, this case and the pending motions of the three convicted co-defendants were assigned to this Court by the Administrative Judge for the Criminal Term of the Kings County Supreme Court.
The People oppose the motion in a response dated March 10, 2008.
Oral arguments were held on the motion on March 24, 2008.
For purposes of this decision, familiarity with the trial record will be assumed.
For the reasons set forth below, upon review of the trial record the Court grants that part of the defendant's motion to set aside the verdict pursuant to CPL 330.30 (1) based on a finding that the conduct of the defense was in fact affected by defense counsel's conflict of interest and that the defendant was not warned by any court of the risks involved in his attorney also representing a co-defendant at the same trial.
Therefore, the other grounds of the motion will not be addressed in this decision. For a discussion of these other issues, see this Court's decision with respect to similar motions by the three co-defendants, a copy of which is appended to this decision.
BACKGROUND
Defendant Sada Hussain was indicted with co-defendants Azad Malik ("Malik"), Shafiq Mohammed ("Mohammed"), and Javed Khalid ("Khalid") in a twenty-five-count Indictment charging Burglary, Assault and Robbery in the First Degree and other related offenses for an incident occurring on or about August 10, 2006.
The defendants were arraigned in Part 50 of the Supreme Court, Kings County, (Firetog, J.) on November 14, 2006. The defendant and his father, Malik, were each represented by Mario Gallucci, Esq. Co-defendant Mohammed was represented by John M. Murphy, Esq., and co-defendant Khalid was represented by Mark J. Fonte, Esq.
The issue of Gallucci's dual representation was raised by Justice Firetog at the Supreme Court arraignment in Part 50 when the Court asked if counsel was representing two defendants in the case. Gallucci responded that, "I explained there might be a conflict but I don't see a conflict yet," but added, that he hadn't "spoken to the prosecutor so I do not know if there is one." (Defendant's Exhibit A, Transcript of Proceedings in Part 50, 11/14/06 at 2). The Assistant District Attorney asked if the Court wanted to "resolve that [conflict] situation first?" ( Id.) Justice Firetog asked the Assistant if there was a conflict, to which she replied "[y]our Honor I don't know that." ( Id. at 2-3). Justice Firetog responded "[w]ell then why are we resolving something that you don't know anything about . . . [h]ow do I know if there is a conflict?" ( Id. at 3).
There was no further discussion about the conflict on the record at the arraignment or on any subsequent date while the case was pending in Part 50. No inquiry was ever made of the defendants concerning their awareness of their right to have separate lawyers or whether Gallucci had discussed the risks of joint representation with them.
On August 1, 2007, the case was sent from Part 50 to Part 18 for trial before Justice Chambers. On August 13, 2007, the issue of joint representation was briefly discussed on the record prior to opening statements. In addressing the issue, Gallucci informed the Court that he would be delivering a single opening statement on behalf of both of his clients and, although the "summation might be different" for each defendant, he did not "expect to sit down and get back up and do two separate summations." (Transcript at 308-309). Justice Chambers voiced concern over the issue, stating "[y]ou need to somehow figure out how, because they are two different defendants, how you're going to sum up so that you don't exactly put them together because I don't know that that would be the best way to deal with this." Id. at 309. Justice Chambers did not question either defendant at any time about dual representation.
On August 20, 2007, all four defendants were convicted of Burglary in the First Degree (PL 130.30).
DEFENSE CONTENTIONS
Sada claims that prior counsel, Mario Gallucci, Esq., failed to provide effective assistance of counsel based upon his dual representation of the defendant and his co-defendant father, Malik, during the course of the proceedings and at trial. The defense contends that: (i) the conflict of interest arising from counsel's joint representation of Sada and Malik was never explained to the defendant; (ii) although the issue of dual representation appears to have been discussed twice on the record, it was never discussed as an issue with the defendant by any Judge presiding over this matter nor waived by defendant in open court; and (iii) it is the defendant's position that the dual representation "impacted detrimentally" on trial counsel's representation of the defendant at trial.
Sada further contends that counsel's performance fell short of the level of competence required by the Constitutions of the United States and State of New York, in that counsel: (i) failed to adequately advise defendant about the importance of testifying at trial and almost certain ramifications of failing to do so; (ii) told the jury in his opening statement that the defendant had an alibi that the defendant was home at the time of the offense then failed to call two alibi witnesses who were available to testify while offering no explanation to the jury for his failure to do so; (iii) failed to adequately prepare for trial of this matter by not timely requesting a hearing to determine the circumstances of the complainant's identification of the defendant as a participant in the crimes alleged, by not obtaining the hospital records of the complainant and utilizing the assistance of a physician to assist in countering the complainant's story, and by not obtaining a copy of the 911 calls prior to trial; and (iv) failed to object to the trial court's failure to issue a limiting instruction with regard to the jury's consideration of a critical exhibit, two letters allegedly written by the daughters of co-defendants Mohammad and Khalid.
Sada additionally argues that the verdict should be set aside, because the defendant's federal constitutional right to confront witnesses was violated by the admission at trial of two unauthenticated letters attributed to the co-defendants' daughters, particularly because the trial court failed to issue a limiting instruction that the letters were not received for the truth of their contents, and because the People failed to provide certain Brady and/or Rosario material concerning a conflicting account of the crime given by the complainant to detectives within weeks following the defendants' arrests.
THE LAW ON DUAL REPRESENTATION
The Federal and New York State Constitutions each guarantee criminal defendants the right to effective assistance of counsel. See US Const 6th Amend; NY Const, art I, § 6; People v Harris, 99 NY2d 202, 209 (2002). The Court of Appeals has stated that effective assistance of counsel requires "representation that is reasonably competent, conflict-free and single-mindedly devoted to the client's best interests." People v Abar, 99 NY2d 406, 409 (2003); People v Ortiz 76 NY2d 652, 656 (1990).
Although joint representation of multiple defendants is not per se violative of a defendant's constitutional right to the effective assistance of counsel, the trial court is charged with the responsibility of determining whether the defendant's decision to proceed with his attorney is an informed decision. Therefore, the trial judge must ascertain on the record, before formal commencement of the trial, 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 Macerola, 47 NY2d 257, 263-264 (1979); People v Gomberg, 38 NY2d 307, 313 (1975); Holloway v Arkansas, 435 US 475, 482 (1978). For over thirty years, this has been termed in New York as a " Gomberg inquiry."
The rationale for imposing this duty on the trial court is 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". People v Macerola at 262; People v Gomberg, supra . 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. People v Macerola at 264. 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. Id.
The record establishes that no court conducted a Gomberg inquiry with regard to the defendant in this case and, therefore, it becomes irrelevant whether or not counsel discussed the conflict with the defendant as it is the trial court that is ultimately responsible for safeguarding the defendant's rights by conducting the inquiry on the record.
Failure to conduct a Gomberg inquiry, however, will not in and of itself require a defendant's conviction be vacated. A defendant seeking to overturn a conviction for failure to conduct a Gomberg inquiry "must do more than show a substantial possibility that defendant's interest potentially conflicted" with a co-defendant's. People v Ortiz at 656-657. In order to prevail on such a claim of ineffective assistance of counsel, 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 at 657 citing People v Alicea, 61 NY2d at 31 (1983). The Court of Appeals has, "alternatively, phrased this requirement as one that the potential conflict have borne a substantial relation to the conduct of the defense." People v Ortiz at 657 citing People v Recupero, 73 NY2d 877 (1988). "Notably the requirement that a potential conflict has affected, or operated on, or borne a substantial relation to the conduct of the defense — three formulations of the same principle — is not a requirement that the defendant show specific prejudice." People v Ortiz at 657 citing People v Alicea, 61 NY2d at 30, n.) (emphasis supplied). See People v Abar, 99 NY2d at 411 (a defendant need show only that the conflict "in some way affected" defendant's representation). Illustrative of these principles is People v Allah, 80 NY2d 396 (1992), where in a (Kings County) trial involving multiple defendants, the defendant's attorney was unavailable during jury deliberations and the jury asked for a clarification of certain charges including "acting in concert." The defendant, without a Gomberg inquiry by the trial court, had consented to his attorney's absence during jury deliberations and to his representation by the two co-defendants' attorneys. Because during the trial a witness called by one of the co-defendants had exculpated the two co-defendants and implicated the defendant, the Court of Appeals found that the defendant had an actual conflict of interest with the co-defendants. Therefore it was reversible error for the defendant to have been represented by the co-defendants' attorneys, even though there was no showing that the defendant was actually prejudiced by the joint-representation at that point in the trial.
Similarly, in People v Baffi, 49 NY2d 820, 822 (1980), where (at another Kings County trial) there was no Gomberg inquiry, it was a reversible error for one attorney to have represented all three defendants at trial where there were differences in the "type and quantum" of evidence against each of the defendants which "suggested different theories and tactics of defense for each," and the defendants did not have to demonstrate that the conflict created actual prejudice to their defense or that an alternative defense would likely have produced a more favorable outcome. See People v Fiorette, 49 NY2d 976, 977 (1980) (reversal required based on lack of Gomberg inquiry even where both defendants relied on a common defense, because a conflict of interest between the defendants existed "arising out of the different types and quantum of evidence against each.") See also People v Burwell, 53 NY2d 849, 851 (1981)("possible differences in the level of culpability" of the defendants "suggesting" that the defendant's wife may have been coerced by her co-defendant husband to possess stolen property gave rise to a "significant potential for a conflict of interest" on the part of their attorney); People v Crump, 53 NY2d 824, 825 (1981) (a new trial granted where it was "possible" that each defendant "might have attempted to show" that the other defendant was solely culpable of possessing the fruits of the crime).
THE TRIAL AND THE OPERATION OF THE CONFLICT
Essentially, Sada argues that Gallucci's conflict of interest in also representing Sada's father, Malik, operated to discourage Gallucci from highlighting to the jury the evidence that the victim had mistakenly identified Sada as a participant in the crime. Sada contends that because the evidence of mistaken identification pertained only to Sada, highlighting this evidence would have, by contrast, emphasized the strength of the identifications of Malik and the two other co-defendants, all of whom were named by the victim in the original police reports.
Thus, Gallucci was unable to argue that, even if a crime had taken place, Sada was mis-identified, because making that argument would have undercut Malik's defense that no crime took place. Instead, Sada argues, and the People agree, Gallucci's defense of Sada at trial relied on the same principal defense theory offered by Malik and the two other defendants: "attacking the credibility of the victim, . . . based upon alleged inconsistencies in his prior statements and testimony [including the relatively minor injuries he actually suffered compared to what he said was done to him] and based on his inability to communicate freely about what transpired during the more than three-hour long crime" (People's Memorandum of Law at 6).
A. The Evidence of Sada's Mistaken Identification
1. The police reports of Police Officer Jacobs and Detective Siegel, which were disclosed by the People on January 9, 2007 as part of pre-trial discovery, each indicated that when asked to identify the persons who allegedly attacked him, the victim provided the first and last names of each of the three co-defendants, including Sada's father Malik, and named as the fourth perpetrator someone known as "Hadid" (Defendant's Exhibit B). The Complaint Report of Police Officer Jacobs names the victim, "Hussain, Rana" and as "wanted": "Azad, Malik"; "Hadid"; "Jurad, Halid" [referring to co-defendant Javed, Khalid]; and "Mohammed, Shafik."
The DD-5 follow up report of Detective Siegel states that when the victim was interviewed in Coney Island Hospital, he provided the names of the perpetrators as: "Hadid (last name unknown), Malik Azad, Halid Jared, and Shafik Mohammed."
These reports did not mention the name "Sada" or state that "Hadid" was the son of Malik.
2. As part of the same pre-trial discovery package, the People provided the defense with the victim's Grand Jury testimony. A portion of that testimony is submitted on this motion (Defendant's Exhibit C). In that testimony, the victim testified that he identified the other three defendants to the police as perpetrators in a seemingly straightforward manner, but when asked what he said to the police when he saw the defendant Sada, the victim testified: "I asked the police officer ask him his name.' He said, my name is Sada.' I said, this is the guy'" [internal quotation marks added for clarity].
Thus, it appears from the victim's Grand Jury testimony that unlike the three co-defendants, the victim could not identify Sada to the police until he was told his name.
3. During trial, the victim told the prosecutor that on June 30, 2006, several weeks before the August 10, 2006 crime in this case, that he had been accosted and threatened on the street after he had provided copies of the letters to the missing girls' families. Although the police report (Defendant's Exhibit E) filed for the June 30th incident describes only one perpetrator, nickname "Karman," who jumped out of a minivan and made the threat related to "an on-going dispute" and states that "Karman" and "7 others fled in a white minivan," the victim told the prosecutor during the trial that three of the defendants on trial all except Malik were also present and involved in the June 30th incident.
The victim's failure to name Sada to the police in this June 30th police report undercut the victim's assertion at trial that he knew Sada by name at the time of the August 10th crime.
At trial, Gallucci did not ask the victim to explain why he did not give the police Sada's name after the June 30th incident and waited over a year to tell the trial prosecutor that Sada was a participant. Although this failure to name Sada may have demonstrated the victim's inability to recognize him, the decision not to mention this incident at trial could have been a tactical decision by Gallucci based on his reluctance to bring up another possible incident involving his client Sada and the victim. Therefore, Gallucci's failure to utilize this evidence is not a basis for this decision.
B. Gallucci's Failures to Use Evidence of Sada's Mistaken Identification
Despite the several occasions where the victim apparently failed or was unable to identify Sada by his name or by his appearance, Gallucci failed to press this evidence of Sada's mis-identification at trial to the jury.
1. At a pre-trial Rodriguez hearing to justify the victim's show-up identification of Sada, the victim testified that he knew Sada and his father Malik for several years from the Mosque in Coney Island, that he had worked for Malik's construction business, that he had been to Sada's and Malik's homes, and that he knew and spoke with their relatives (Transcript at 236-241). Based on this testimony, the Court denied Sada's motion for a Wade hearing.
Because Malik and Sada were both purportedly "well-known" to the victim, Sada contends that evidence tending to show that the victim made inconsistent statements regarding his firm in-court identification of Sada would be contrasted by the absence of similar impeaching identification evidence with regard to Malik, thereby strengthening by implication the victim's identification of Malik. Therefore, Sada contends that rather than make the best use of this impeaching evidence on behalf of Sada and vigorously challenge the accuracy of Sada's identification, Gallucci chose to employ a similar defense for both Sada and Malik and join in the general challenges to the victim's credibility being made by the other two co-defendants even though specifically challenging the accuracy of Sada's identification would not be inconsistent with the general credibility challenges being made by the co-defendants.
The argument made by Gallucci at the Rodriguez hearing reveals Gallucci was aware of the inconsistent police reports where "Hadid" rather than "Sada" was named as a fourth perpetrator, and Gallucci relied on this discrepancy in arguing for a Wade hearing (Transcript at 243-244). However, as will later be discussed, Gallucci made only minimal reference to this discrepancy to the jury during the trial, passing up obvious opportunities to emphasize the possibility that Sada was mis-identified.
2. During jury selection, even though the prosecutor questioned potential jurors on the subjects of one-witness identification and the absence of scientific evidence connecting the defendants to the crime, Gallucci, did not attempt to raise the issue of a potential juror's willingness to consider, as evidence of Sada's mistaken identification, evidence that police reports made by the first officer and detective to interview the victim did not contain Sada's name (Defense Memorandum of Law at 25-26). Gallucci also did not take the opportunity during voir dire either to emphasize to the jury that the evidence of the victim's identification of Sada would not be as strong as the evidence of Malik's identification or to ask the jurors about their ability to consider separately the evidence against each of the four defendants (Transcript at 180-182; 280-281).
3. Gallucci made a brief opening statement. He did not mention the specific inconsistences related to Sada's identification. Gallucci said his clients "do not even know [the victim]. They were home when this occurred" (Transcript at 29).
Ultimately, even though Gallucci had served alibi notice for Sada and Malik, no alibi witnesses were called; the defendants did not testify, and rested without calling any witnesses. Although Sada has raised these failures on this motion as examples of ineffective assistance of counsel, there may have been sound tactical reasons for not doing so which are not on the record. Therefore, these factual arguments cannot be decided on a CPL 330.30 motion and are more appropriate to a post-judgment CPL 440.10 motion.
Nevertheless, once it was decided not to interpose an alibi defense for both Sada and Malik, the evidence of the victim's inconsistent statements regarding Sada's identification were all the more important as a "fallback" position, particularly because the victim testified at trial that he was well-acquainted with Sada (Transcript at 313-314). Gallucci could have stressed this mis-identification evidence in summation as casting a reasonable doubt on the accuracy of Sada's identification and used it as an explanation for why alibi witnesses were not necessary for Sada, but Gallucci obviously could not do so without highlighting that Malik had also not called alibi witnesses even though there were no similar inconsistent identification statements regarding Malik's identification.
Therefore, Gallucci was painted into a corner with Sada by the conflict of interest by this point in the trial, and to get out Gallucci and Sada would have had to have stepped on Malik's interests. As a result, Gallucci said virtually nothing in summation about the apparent inconsistent statements regarding Sada's identification. (More about how the conflict affected Gallucci's summation will be discussed below.)
4. Although Gallucci was aware that Police Officer Jacobs wrote "Hadid" and not "Sada" as the fourth named perpetrator, Gallucci did not cross-examine Jacobs at all to bring out this exculpatory fact (Transcript at 174). Neither of the co-defendants' attorneys mentioned Jacobs' police report naming "Hadid" even though Jacobs testified on direct examination that after responding to the scene Jacobs obtained "named individuals" from the victim (Transcript at 145). Thus, the jury never knew that Jacobs' report named "Hadid" and not Sada.
If Gallucci had sought to inquire if one of those named individuals was "Hadid," he may have opened the door to testimony that his other client, Malik, was correctly named in the report. There is no other explanation for Gallucci not seeking to elicit testimony from Jacobs that Sada was not named, other than a concern the door would be opened to allowing testimony that Malik and the other two defendants were named.
Not letting the jury know that Jacobs' report also named "Hadid" allowed the prosecutor to argue that Detective Siegel's report naming "Hadid" was the result of the victim's "accent," and that "the officer misspelled it," a plausible argument only because the jury was not aware that Jacobs' report also named "Hadid" (Transcript at 786).
5. Detective Siegel testified on direct examination after reading his notes that he wrote down four names given to him by the victim, including "Hadid" [mis-heard by the court reporter as "Haveed"] unknown last name, and the first and last names of the three other defendants (Transcript at 590).
On cross-examination, Gallucci asked only one question about the discrepancy: "Did he give you the name of Sada Hussain'?" to which the detective answered "No." (Transcript at 600).
Gallucci did not ask Detective Siegel whether the victim's accent gave him a problem in accurately recording the names of the three co-defendants. Neither did Gallucci inquire whether, although "Hadid's" last name was listed as "unknown," the victim mentioned that "Hadid" was the son of Malik, a relationship the victim claimed to know at the Rodriguez hearing. For Gallucci to have undertaken this obvious line of inquiry would have benefitted Sada at the expense of Malik, and Gallucci's conflict of interest had to influence his decision not to do so.
On re-direct examination, the prosecutor asked Detective Siegel to "tell the jury again the four names that were given to you or the four names that you wrote down." Although the answer would have benefitted Sada because his name was not given, Gallucci was the only attorney who objected on the basis of the question having been "asked and answered". The objection was sustained (Transcript at 602). The answer could only have helped Sada and only have hurt Malik. When Gallucci objected, he clearly had only Malik's interest in mind.
6. On direct examination, the victim testified that he consistently gave the police the names: "Malik Azad, Sada Hussain, Shafique Mohammad, Javed" (Transcript at 459). Yet, Gallucci, asked the victim no questions on cross-examination about either the police reports of Jacobs or Siegel, which both had the name "Hadid," or the victim's Grand Jury testimony, wherein the victim had testified that he asked the police for Sada's name before identifying him. The victim's Grand Jury testimony was never used to impeach his identification of Sada, and, like the police report of Jacobs naming "Hadid," the jury never knew about this impeaching evidence.
Gallucci also did not ask the victim why the police reports had no last name for "Hadid" even though the victim provided last names for the three co-defendants and the victim claimed to know that Malik was "Hadid's" father.
Again, Gallucci's divided loyalty to Malik appears to be the only explanation for these failures.
Even though Gallucci finished his cross-examination of the victim without asking any questions at all about naming "Hadid" to the police, counsel for co-defendant Shafiq Mohammed briefly asked the victim whether he gave Detective Siegel the name "Hadid," and the victim said he said "Sada" which the detective may have misspelled (Transcript at 662-663).
No one asked the victim to explain how Jacobs also came to the same "misspelling" or why that was the only name of the four names given by the victim that was not accurately recorded by two different police officers.
7. Prior to summations, as a supplement to an adverse inference charge to be given by the trial court, Gallucci submitted a request to charge regarding the missing notes of Detective Siegel concerning his interview with the victim:
With respect to Sada Hussain, it should be noted that Detective Siegel's missing spiral notebook contained notes of an interview with Rana Hussain soon after the alleged incident. In these notes Rana Hussain named 4 individuals as the perpetrators none of which was Sada Hussain. Additionally, during this same interview Rana Hussain identified another individual as one of these 4 as Hadid. You may conclude that due to the failure of the New York Police Department to maintain these notes that it contradicts the testimony of these witnesses and the position of the prosecution's case. (Transcript at 653; Court, Exhibit 3) (emphasis supplied).
This request to charge was not granted. Nevertheless, it demonstrates Gallucci's awareness of the victim's apparent inconsistent statement naming "Hadid" and not Sada and how this inconsistency would be helpful to the defense.
8. Although Gallucci was acutely aware of the inconsistent statements to the police as demonstrated in his request to charge the jury, Gallucci only briefly mentioned it in his summation (Transcript at 732) and never mentioned that Detective Siegel's notes actually said "Hadid." While Gallucci was anxious to have the trial court emphasize this point in its jury charge, Gallucci did not take the opportunity to do so in his own summation. The only explanation for this would be a reluctance to distinguish for the jury out of his own mouth the quantum of proof against each of his clients even though, as previously noted, Gallucci had not offered the alibi for Sada that Gallucci had promised the jury in his opening statement.
Gallucci's summation made use of the victim's purportedly inconsistent Grand Jury testimony regarding the weapons allegedly used during the crime (Transcript at 742-743). However, Gallucci never sought to impeach the victim's testimony that he knew Sada's name prior to the crime with the victim's seemingly inconsistent Grand Jury testimony that he identified Sada to the police only after asking the police for Sada's name. Again, the only reasonable explanation for this failure is Gallucci's conflict of interest which inhibited him from differentiating to the jury the strength of the evidence against each of his clients.
CONCLUSION
In this case, the record demonstrates that Gallucci's failure to raise a defense of mistaken identification as to Sada was "affected by the operation" of a conflict of interest as a result of the unavailability of such a defense for Malik. Gallucci was aware of the purported inconsistent statements in the police reports by two different police officers naming "Hadid" rather than Sada. The prosecutor's argument that this "mistake" by one police officer was due to the victim's "accented speech" is undermined by (1) the same "mistake" by a second police officer, (2) the accurate recording by these same two police officers of the first and last names of the other three defendants, as well as the fact that (3) "Hadid's" last name was listed as "unknown" even though the victim claimed to have known that Hadid/Sada was the son of Malik. Clearly, the listing of "Hadid" rather than Sada in two different police reports was material that Gallucci could have used to impeach the victim's identification of Sada and could not, as argued by the prosecutor, be easily explained by the victim's "accent."
Further, Gallucci's only briefly during trial referring to the inconsistent statement regarding "Hadid" in Detective Siegel's report, and not at all making the jury aware of either the victim's similar inconsistent statement in the Officer Jacobs' report, or the victim's testimony in the Grand Jury testifying that he had asked the police for Sada's name before identifying him, are failures that can be explained only by the operation of Gallucci's conflict of interest so as not to have the jury conclude that the evidence against Malik was stronger than against Sada.
After telling the jury in his opening statement that his clients did not know the victim and were home at the time of the crime, for Gallucci to have then produced specific evidence at trial of Sada's mis-identification without calling alibi witnesses, would have left Malik in a relatively much weaker position: Sada but not Malik could claim the evidence of his identification was unreliable based on the victim's failure to name him to two police officers. Indeed, Malik's first and last name had been given (and spelled correctly) to the same two police officers. In the absence of alibi witnesses for Malik, Gallucci's best option insofar as Malik's defense was to challenge the credibility of the victim without reminding the jury that Malik, but not Sada, had been consistently identified.
Had Sada been advised pursuant to Gomberg, the standard for reviewing Gallucci's effectiveness would be pursuant to traditional standards measuring effective assistance of counsel under the Federal and New York State Constitutions. However, where a defendant, as was Sada, is not warned by a court of the risks of dual representation and consequently does not knowingly agree on the record to dual representation, reversible error occurs where the record demonstrates that counsel's representation, as in this case, was affected by the operation of a conflict of interest, regardless of whether the defendant has also shown that a conflict-free attorney would have produced a more favorable result.
The documents containing the potential impeaching material (police reports and Grand Jury Minutes) were not turned over to Gallucci by the People until January 9, 2007, almost two months after the November 14, 2006 Supreme Court arraignment and Justice Firetog's initial inquiry concerning Gallucci's dual representation. Because, as in this case, the existence of a potential conflict of interest may not be apparent until the trial begins (pursuant to CPL 240.45, this impeaching material assuming it is not Brady material need not be made available to a defendant until after the jury has been sworn), it is all the more important that the issue of dual representation be continuously reviewed as the case proceeds to trial, and, of course, that the defendants each be questioned by the Court pursuant to Gomberg to insure they are aware of the risks of joint representation.
For the foregoing reasons, the judgment against Sada would as a matter of law be required to be reversed by an appellate court. Accordingly, Sada's motion to set aside the verdict is granted and a new trial is ordered.
SO ORDERED