Opinion
July 29, 1996
Appeal from the Supreme Court, Queens County (Dunlop, J.).
Ordered that the judgment is affirmed.
After indicating his intent to testify before the Grand Jury, on the day of the Grand Jury presentment the defendant's attorney submitted a letter to the People requesting that they present the defendant's case to a separate Grand Jury from that of one of his codefendants, and that the People not introduce the statement of this codefendant who implicated the defendant in the crime during the Grand Jury proceedings.
The defendant did not testify before the Grand Jury and subsequently moved to dismiss the indictment on the ground that he was denied his right to testify before the Grand Jury on the grounds previously cited in his letter. In response, the People submitted uncontroverted evidence that when they informed defense counsel that they would not comply with the defendant's demands, the defendant expressly waived his right to testify before the Grand Jury. As a result, the Supreme Court properly denied the defendant's motion to dismiss the indictment and properly concluded that the defendant waived his right to testify before the Grand Jury (see, e.g., CPL 190.50; see also, People v Thomas, 213 A.D.2d 73; People v. Devone, 163 Misc.2d 581).
Moreover, there is no merit to the defendant's contention that the People violated the rule set forth in Bruton v. United States ( 391 U.S. 123) and Cruz v. New York ( 481 U.S. 186) by introducing the statement of his codefendant during the Grand Jury proceedings (see, People v. Scalise, 70 A.D.2d 346, 349-350; People v. Eaddy, 142 Misc.2d 341; People v. Abney, 135 Misc.2d 797). The integrity of the Grand Jury proceedings was not impaired (see, CPL 210.20 [c]; 210.35; People v. Diaz, 209 A.D.2d 1, 6-7; People v. Steans, 187 A.D.2d 741).
The defendant received the effective assistance of counsel although he was briefly represented by his codefendant's counsel during jury deliberations. The defendant, on the record, consented to the absence of his counsel for a brief period of time during jury deliberations. Joint representation is not per se a conflict of interest or a denial of effective assistance of counsel. When defendants are jointly represented, a defendant needs to demonstrate that a significant possibility of a conflict of interest existed bearing a substantial relationship to the conduct of the defense (People v. Recupero, 73 N.Y.2d 877, 879; People v. McDonald, 68 N.Y.2d 1, 9). Though not defined, "a significant possibility is more than a potential conflict of interest and * * * before relief will be accorded the conflict must do more than exist, it must have `operated'" (People v Recupero, supra, at 879; see also, People v. Lombardo, 61 N.Y.2d 97, 103).
Here, although both the defendant and his codefendant presented alibi witnesses, the record reveals that the defendant's alibi witness did not incriminate the codefendant and the codefendant's alibi did not incriminate the defendant. Further, the defendants relied on similar theories and tactics of defense (see, People v. Mattison, 67 N.Y.2d 462, 468, cert denied 479 U.S. 984; cf., People v. Allah, 80 N.Y.2d 396, 400). As a result, there was no significant possibility of an actual conflict of interest which bore a substantial relationship to the conduct of the defense (see, People v. Allah, supra, at 400-401; People v Recupero, supra, at 879; People v. Mattison, supra, at 470, cert denied 479 U.S. 984; People v. Macerola, 47 N.Y.2d 257, 264).
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05), or without merit. Thompson, J.P., Altman, Goldstein and McGinity, JJ., concur.