State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 19, 2017 108379 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Appellant,

v MEMORANDUM AND ORDER

JOHNNIE SIMPSON, Also Known as 

GAZOO,

Respondent.

________________________________

Calendar Date: December 13, 2016

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

__________

Law Office of Raymond D. Sprowls, Walden (Raymond D.

Sprowls of counsel), for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan

Gudesblatt Lamb of counsel), for respondent.

__________

Clark, J.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered April 14, 2015, convicting defendant

upon his guilty plea of the crime of criminal possession of a

controlled substance in the third degree.

In March 2014, defendant sold cocaine to a confidential

informant (hereinafter CI) in two separate controlled buys. 

Under the supervision of police, the CI arranged a third

controlled buy, which culminated in defendant being arrested and

found to be in possession of cocaine prior to completion of the

sale. Defendant was thereafter charged with criminal possession

of a controlled substance in the third degree and criminal
-2- 108379 

possession of a controlled substance in the fourth degree. 

Defendant pleaded guilty to criminal possession of a controlled

substance in the third degree in full satisfaction of the

indictment and waived his right to appeal. Defendant was

sentenced to the agreed-upon prison term of six years, with two

years of postrelease supervision, and he now appeals.

We affirm. Our review of the record confirms that

dependant's waiver of appeal was knowing, voluntary and

intelligent (see People v Ramos, 7 NY3d 737, 738 [2006]; People v

Lopez, 6 NY3d 248, 256 [2006]; People v Dickson-Eason, 143 AD3d

1013, 1013 [2016], lv denied ___ NY3d ___ [Dec. 20, 2016]). 

County Court thoroughly explained the meaning and consequences of

the appeal waiver and its separate and distinct nature, and

defendant orally confirmed that he understood the implications of

waiving his right to appeal and signed a written waiver of appeal

in open court after conferring with counsel. The valid appeal

waiver forecloses defendant's claim of ineffective assistance of

counsel, except to the extent that such claim impacts the

voluntariness of his plea; however, this claim is unpreserved as

the record does not reflect that defendant moved to withdraw his

plea on this ground (see CPL 220.60 [3]; People v Lobaton, 140

AD3d 1534, 1535 [2016], lv denied 28 NY3d 972 [2016]). 

Defendant's statutory speedy trial arguments were also waived by

his guilty plea (see People v Friscia, 51 NY2d 845, 847 [1980];

People v Slingerland, 101 AD3d 1265, 1267 [2012], lv denied 20

NY3d 1104 [2013]). Defendant's related claim that trial counsel

was ineffective for failing to move to dismiss the indictment on

statutory speedy trial grounds was not preserved in the absence

of an appropriate postallocution motion raising this argument;

consequently, given that the record is inadequate to review the

merits of this claim, it can only be raised in a CPL article 440

motion (see People v Viele, 130 AD3d 1097, 1097 [2015]). 

Next, defendant contends that his trial counsel had an

actual conflict of interest that was not adequately explained to

or waived by him, therefore depriving him of the effective

assistance of conflict-free counsel. After the first day of the

combined pretrial suppression hearings, defense counsel advised

County Court on the record, in defendant's presence, that the CI
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had been arrested the night before the start of the hearing1 and

had retained defense counsel's partner to represent him on those

charges. Upon learning this information, defense counsel

reported that he had advised his partner that the CI was involved

in the events that led to defendant's charges and directed the

partner not to speak with the CI about the charges against either

the CI or defendant. The partner represented the CI solely at

the arraignment and bail hearing the next morning and immediately

withdrew from the representation. Upon further inquiry by the

court that day and again roughly two months later, defense

counsel assured the court that he had never spoken to the CI and

had acquired no privileged information about him. Defense

counsel further assured the court that his partner had no

conversations with the police or the CI about the background of

the charges against the CI and had not acquired any such

information. The court and defense counsel then advised

defendant that, if counsel continued to represent him, counsel

would not be able to use any privileged information, if he had

acquired any, to cross-examine the CI at defendant's trial if he

testified, and that the CI could claim this privilege. The court

informed defendant that he was entitled to an attorney of his

choosing and could retain a new attorney and, when defendant

indicated that he was confused, the court granted an adjournment

to provide him with an opportunity to choose his course after

conferring with defense counsel or outside counsel. A week

later, defendant indicated that he wanted defense counsel to

continue to represent him2 and thereafter accepted the plea offer

1 The People later clarified that the CI's May 19, 2014

arrest stemmed from charges that the CI had sold drugs in January

2014, which led to his informal agreement with police to

thereafter cooperate. After the CI lost touch with police

following defendant's arrest and did not cooperate or testify

before the grand jury that handed up the indictment against

defendant, the People determined to prosecute defendant without

the CI and to arrest the CI for that earlier criminal conduct.

2 While defendant indicated that he was unable to find an

attorney to represent him "too soon," he nonetheless agreed to

continue with counsel's representation and made no requests for
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that had been kept open for over two months. 

An accused "may waive an attorney's conflict, but only

after an inquiry has shown that the defendant has an awareness of

the potential risks involved in that course and has knowingly

chosen it" (People v Solomon, 20 NY3d 91, 95 [2012] [internal

quotation marks and citation omitted]; see People v Wright, 27

NY3d 516, 520-521 [2016]). We agree that defense counsel's

representation of defendant while his partner simultaneously,

albeit very briefly, represented the CI, a potential key

prosecution witness, created a conflict of interest (see People v

Solomon, 20 NY3d at 94-95). Defendant argues that this gave rise

to an actual, rather than merely a potential, conflict of

interest in that the CI's interests diverged from his and the

partner actively represented the CI.3 Even assuming that there

was an actual conflict of interest (see id. at 96), we find that

defendant was fully and sufficiently apprised of the nature of

the conflict and how it could potentially impact his trial if the

CI were called to testify as a prosecution witness. Defendant

was made aware of the potential risks and knowingly and

voluntarily chose defense counsel's continued representation (see

id. at 95; People v Gomberg, 38 NY2d 307, 313-314 [1975]; compare

People v Prescott, 21 NY3d 925, 927-928 [2013]). Inasmuch as

defendant waived this conflict after an adequate inquiry by the

court and after having given his informed consent, he was not

deprived of meaningful representation (see People v Wright, 27

NY3d at 520-521; People v Solomon, 20 NY3d at 97). 

Relatedly, defendant's claims that he was coerced into

additional time or another adjournment to retain substitute

counsel.

3 While County Court referred several times to this as a

"potential" conflict of interest when advising defendant, the

court did so because the CI had not testified at pretrial

proceedings and it was not clear that the CI would be testifying

at trial. We find that this characterization did not undermine

the court's advisement of the potential risks of the conflict

(see People v Solomon, 20 NY3d at 95).
-5- 108379 

pleading guilty or denied an opportunity to retain new counsel

are unpreserved, as he made no postallocution motion on this

ground (see People v Lobaton, 140 AD3d at 1535). In any event,

this claim is belied by the record, which reflects that the

nature and risks presented by the conflict of interest were

discussed on the record at several appearances and that defendant

had numerous opportunities to confer with counsel and to retain

new counsel, including a one-week adjournment to retain new

counsel if he so chose. Thus, were we to address the issue, we

would find that defendant, having been advised that he had the

right to an attorney of his choice, elected to proceed with

counsel's representation and that his subsequent plea was "a

knowing, voluntary and intelligent choice among alternative

courses of action" (People v Conceicao, 26 NY3d 375, 382 [2015]

[internal quotation marks and citation omitted]; see People v

Fiumefreddo, 82 NY2d 536, 543 [1993]). We have reviewed

defendant's remaining contentions and conclude that they lack

merit.

McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court