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UNITED STATES EX REL. HUERTES v. LAVALLEE

June 3, 1976

UNITED STATES OF AMERICA ex rel. JESUS HUERTES, Petitioner,
v.
J. E. LaVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York 12929, Respondent



The opinion of the court was delivered by: DUFFY

OPINION AND ORDER

 KEVIN THOMAS DUFFY, D.J.

 Jesus Huertes petitions this Court for a writ of habeas corpus, 28 U.S.C. § 2254. On January 5, 1972, petitioner was convicted of unlawful possession of dangerous drugs in the first degree (cocaine), N.Y. Penal Law § 220.20 (McKinney's 1967). He was sentenced to a term of fifteen years to life. The conviction was affirmed by the Appellate Division, First Department, and by the Court of Appeals.

 The crux of petitioner's claim is that his attorney's dual representation of his common law wife and himself denied him of the effective assistance of counsel in violation of the sixth and fourteenth amendments.

 There is no dispute as to the standard by which petitioner's claims are to be evaluated:

 
"The rule in this Circuit is that some specific instance of prejudice, some real conflict of interest resulting from joint representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel."

 United States v. Lovano, 420 F.2d 769, 773 (2d Cir. 1970).

 Reviewing the petition, at least two specific instances of prejudice suggest themselves. First, at the time of petitioner's arrest, he made a statement to the police which inculpated himself but exculpated his co-defendant.

 
"The stuff is mine she has nothing to do with this. Let her go. I'm the guy you want."

 Defense counsel was faced with the dilemma of choosing which defendants' interests to serve. The attorney attempted to suppress the statement on the ground that Huertes lacked a sufficient understanding of the English language to have made the remark. In the alternative, he argued that Huertes lacked the linguistic ability to understand his rights. The motion was denied and the statement was admitted into evidence.

 The second allegedly prejudicial circumstance arose when Huertes' co-defendant testified at trial but he did not. Although the direct examination by defense counsel did not incriminate petitioner, testimony damaging to Huertes was elicited by the prosecutor on cross-examination. No separate examination of the witness could be conducted on behalf of the petitioner because of the dual representation.

 The jury returned a guilty verdict as to both defendants. The Court, however, set aside the verdict as to Huertes' common law wife.

 Although there may be some question as to the prejudice arising from efforts to suppress petitioner's statement, the differing defense positions with respect to testifying at trial presents a clear instance of prejudice. The Court of Appeals for this Circuit has addressed itself to the problem:

 
"[where] two defendants are represented by the same attorney, one defendant elects to take the stand and the other choose not to, the possible prejudice in the eyes of the jury to the defendant ...

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