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The People of the State of v. Thomas Zinkhen

State of New York Supreme Court, Appellate Division Third Judicial Department


November 23, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
THOMAS ZINKHEN, APPELLANT.

Appeal from a judgment of the County Court of Ulster County (Schneer, J.), rendered October 5, 2009, convicting defendant upon his plea of guilty of 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.

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: October 21, 2011

Before: Mercure, J.P., Peters, Malone Jr., Kavanagh and Stein, JJ.

In 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, ___ AD3d ___ [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.

Robert D. Mayberger

Clerk of the Court

ENTER:

20111123

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