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January 3, 1977

ROY BOMBARD, Superintendent, Greenhaven Correctional Facility, Defendant

The opinion of the court was delivered by: GOETTEL

GOETTEL, District Judge.

 Petitioner, George Kaplan, has sought a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He is presently incarcerated at the Greenhaven Correctional Facility, Stormville, New York, having been convicted of two counts of arson in the second degree and two counts of criminal mischief. Petitioner alleges that he has exhausted his state remedies, as required by 28 U.S.C. § 2254. Respondent does not challenge this contention.

 Kaplan was charged, along with Jerry Gomberg and Martin Hodas, with setting fire to two "massage parlors" competing with the "Geisha House" in Times Square, allegedly owned by them. They were charged with having three of their employees set two fires after warnings to their competitors to raise their prices had been ineffective.

 In support of his petition, Kaplan alleges that he had been deprived of his constitutional rights to the effective assistance of counsel and was thus denied due process of law as guaranteed by the Fifth, Sixth and Fourteenth Amendments. At trial, Kaplan's attorneys, Kassner and Detsky, also represented the two co-defendants in the case.* It is alleged that "a conflict of interest arose of such magnitude as to prejudice petitioner and deny him a fair and effective defense." It is contended that petitioner did not knowingly and intelligently waive his rights to effective assistance of counsel since he was not properly advised by his attorneys that the theories of defense for himself and defendant Hodas (who was acquitted) were in substantial conflict. Finally, it is claimed that the trial court failed to make a proper inquiry into defendant's waiver and neglected to advise petitioner sufficiently of the possible nature of the conflict and the disability which it might place upon petitioner's counsel to effectively defend him.

 In the unanimous decision of the New York State Court of Appeals, People v. Gomberg, 38 N.Y. 2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550 (1975), it was held that the trial court had properly inquired of the appellants and their attorney whether joint representation would result in a conflict of interest. Such inquiry was deemed sufficient to protect Kaplan's right to effective assistance of counsel since all of the defendants were made aware of the possible conflict and elected to continue to retain attorneys Kassner and Detsky throughout the proceeding.

 Before commencing the trial, Justice Denzer, who presided, asked the three defendants if they were dissatisfied with counsel or whether they believed that joint representation at trial would result in a conflict of interest. Hodas expressed a desire to continue with the present counsel. Kaplan didn't respond and Gomberg indicated that he did not understand the court's question. The court thereafter more fully explained the problem for the benefit of Gomberg and his two co-defendants:

I just want to make certain that in your mind there is no reason that one attorney should [sic] represent all three of you; that the attorney won't be put in a position of having to take a course of action which is favorable to one, but not to another. I just want to make sure you don't feel that way. Apparently you don't if you retained the same attorney; do you understand? (R.20a-21a.)

 Gomberg then indicated that he understood the situation and responded that it might be "better for us to get another lawyer." (R.21a). When Justice Denzer inquired whether there was any conflict between Gomberg and the other defendants, Gomberg replied, "I think maybe another lawyer would be helpful to us. * * * * I would like to talk it over with another lawyer." (R.21a). During this exchange Kaplan remained silent.

 Afterwards, Justice Denzer pursued the conflicts issue by asking Detsky if anyone had ever indicated that there might be a conflict and suggested other counsel. Detsky answered:

Four or five days ago, I suggested to Mr. Hodas that there might be a conflict and either another or the other two should get themselves another lawyer. Mr. Hodas, Mr. Kaplan and Mr. Gomberg said they had confidence in our firm to handle it. But I do want this Court to understand that it was discussed in our office and I felt one of the three should get another counselor.
The Court: The way the situation stands is that you advised them of this and they told you they didn't want to hire other counsel?
Mr. Detsky: That's correct. (R.23a).

 The Court then terminated the inquiry and directed that trial commence but indicated that if, at any point in the trial, any defendant believed a conflict existed, he could have other counsel. Although the Court's inquiry was not directed at petitioner Kaplan per se, he was present during the extended discussion of the conflict issue and remained silent throughout. At no time during the proceeding did he object to the joint representation or indicate that a conflict might arise as a result of retaining Kassner and Detsky as defense counsel. Furthermore, as Detsky indicated, he had consented to the joint representation at a meeting held prior to the trial.

 As the New York Court of Appeals noted in its decision on the appeal, the resolution of this issue brings into conflict two constitutional protections: the right to the effective assistance of ...

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