People v. Zinkhen

Appellate Division of the Supreme Court of New York

People v. Zinkhen

89 A.D.3d 1320, 932 N.Y.2d 909

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 23, 2011

StatusPublished

Cited by2 cases

This text of 89 A.D.3d 1320 (People v. Zinkhen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Zinkhen, 89 A.D.3d 1320, 932 N.Y.2d 909 (N.Y. Ct. App. 2011).

Pincite

Opinion

Malone Jr., J.

[1321]*1321In 2009, defendant was charged in an indictment with the crimes of criminal possession of stolen property in the fourth degree (two counts), grand larceny in the fourth degree, forgery in the second degree (three counts) and petit larceny. He thereafter moved for an order dismissing the indictment on the ground that actual prejudice, inherent impropriety and a conflict of interest arose from the fact that the Ulster County District Attorney had previously represented him while the District Attorney was a member of the Public Defender’s office. Alternatively, defendant requested that the District Attorney’s office be disqualified and a special prosecutor be appointed. Defendant subsequently pleaded guilty as charged and was sentenced, as a second felony offender, to concurrent prison terms resulting in an aggregate sentence of 3 to 6 years, with the sentence to run concurrently with the sentences being served on unrelated convictions. Defendant now appeals.

We affirm. Defendant’s contention on appeal, that the indictment should have been dismissed or a special prosecutor appointed based upon the District Attorney’s previous representation of him, is precluded from our review by defendant’s knowing, voluntary and intelligent guilty plea (see People v Crown, 124 AD2d 898, 899 [1986]; People v Bump, 103 AD2d 974, 975 [1984]). In any event, defendant’s contention is without merit. Defendant does not claim, nor does the record demonstrate, that he suffered any actual prejudice or that there was “a substantial risk of an abuse of confidence” due to the prior representation (Matter of Schumer v Holtzman, 60 NY2d 46, 55 [1983]; see People v Zinkhen, 89 AD3d 1319 [2011] [decided herewith]; People v Terk, 24 AD3d 1038, 1041 [2005]; People v Vanderpool, 217 AD2d 716, 718 [1995], lv denied 86 NY2d 847 [1995]).

Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Malone Jr., J.

[1321]*1321In 2009, defendant was charged in an indictment with the crimes of criminal possession of stolen property in the fourth degree (two counts), grand larceny in the fourth degree, forgery in the second degree (three counts) and petit larceny. He thereafter moved for an order dismissing the indictment on the ground that actual prejudice, inherent impropriety and a conflict of interest arose from the fact that the Ulster County District Attorney had previously represented him while the District Attorney was a member of the Public Defender’s office. Alternatively, defendant requested that the District Attorney’s office be disqualified and a special prosecutor be appointed. Defendant subsequently pleaded guilty as charged and was sentenced, as a second felony offender, to concurrent prison terms resulting in an aggregate sentence of 3 to 6 years, with the sentence to run concurrently with the sentences being served on unrelated convictions. Defendant now appeals.

We affirm. Defendant’s contention on appeal, that the indictment should have been dismissed or a special prosecutor appointed based upon the District Attorney’s previous representation of him, is precluded from our review by defendant’s knowing, voluntary and intelligent guilty plea (see People v Crown, 124 AD2d 898, 899 [1986]; People v Bump, 103 AD2d 974, 975 [1984]). In any event, defendant’s contention is without merit. Defendant does not claim, nor does the record demonstrate, that he suffered any actual prejudice or that there was “a substantial risk of an abuse of confidence” due to the prior representation (Matter of Schumer v Holtzman, 60 NY2d 46, 55 [1983]; see People v Zinkhen, 89 AD3d 1319 [2011] [decided herewith]; People v Terk, 24 AD3d 1038, 1041 [2005]; People v Vanderpool, 217 AD2d 716, 718 [1995], lv denied 86 NY2d 847 [1995]).

Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

89 A.D.3d 1320, 932 N.Y.2d 909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-zinkhen-nyappdiv-2011.

Opinion

Related

Cite This Page — Counsel Stack