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[969 N.Y.S.2d 841] Office of the Appellate Defender, New York City (Richard M. Greenberg and Margaret E. Knight of counsel), for appellant.
[969 N.Y.S.2d 842] Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy, Joseph N. Ferdenzi and Rafael Curbelo of counsel), for respondent.
[991 N.E.2d 700] In this case we consider whether defendant has adequately demonstrated that he was deprived of meaningful legal representation based on defense counsel's alleged conflict of interest.
On this record, we hold that defendant has not sustained his burden of establishing ineffectiveness, but that he is not precluded from raising this issue in a CPL article 440 proceeding that would permit further factual development of the circumstances pertaining to the claimed conflict.
One evening in December 2004, Freddy Penalo was working as a taxi driver when he received a call to pick up passengers at a certain location in the Bronx. When he arrived, two young men approached his taxi and asked to be driven to West 233rd Street. Once in the vehicle, Penalo spoke to the men in the rear seat and observed them in the rearview mirror during the 10 to 12 minute trip.
When the taxi was in the vicinity of the destination, one passenger grabbed Penalo, announced a robbery and displayed a handgun. He ordered Penalo to turn over his cash, jewelry and cell phone. The other passenger told the gunman to kill Penalo, but the initial aggressor assured Penalo that he would not be murdered if he gave all of his money to them, which he did. Penalo was then pulled out of the taxi and the men drove away in the vehicle.
The police found the taxi parked near 3460 Bailey Avenue. They discovered that a " taxi cam" inside the vehicle had taken photographs during the robbery. Penalo gave descriptions to the police, stating that the two assailants were Hispanic men, about 20 years old, approximately five feet, eight inches tall and weighed 150 ...