Introduction

In People v. Prusinski, the Appellate Division, Third Department, affirmed both a 2018 judgment of conviction for attempted murder in the first degree and a 2021 order denying post-conviction relief under CPL 440.10. The case arises from a July 2017 shooting in Albany that left two individuals injured. A jury rejected the defendant’s justification (self-defense) theory and convicted him. On appeal, Prusinski challenged the sufficiency and weight of the evidence as to justification, sought suppression of his custodial interview on right-to-counsel grounds, alleged ineffective assistance of counsel (both in trial strategy and due to a purported conflict of interest stemming from a business relationship between his trial attorney and the prosecuting Assistant District Attorney), and argued that his sentence was unduly harsh and severe.

The Third Department’s opinion, authored by Justice Fisher and joined by Presiding Justice Clark and Justices Aarons, Lynch, and Ceresia, is doctrinally significant for two principal reasons. First, it reinforces the post-verdict review architecture in justification cases: even when a sufficiency challenge is unpreserved, the court’s weight-of-the-evidence review necessarily examines whether the People disproved justification beyond a reasonable doubt. Second, and most notably, it consolidates and applies the Court of Appeals’ recent guidance in People v. Mero on attorney conflicts of interest, holding that a limited, out-of-county brief-writing relationship between defense counsel and the prosecuting ADA is not an “actual” conflict and, absent proof that the potential conflict “operated upon the defense,” does not warrant reversal.

Summary of the Opinion

• Judgment and order affirmed: The conviction for attempted murder in the first degree and the denial of CPL 440.10 relief are affirmed.
• Justification rejected on weight review: Although the sufficiency challenge to justification was unpreserved, the court’s weight-of-the-evidence review concluded that the jury’s rejection of self-defense was not against the weight of the evidence.
• Suppression denied: The court upheld admission of the custodial interview. The defendant did not unequivocally invoke his right to counsel prior to questioning, and the hearing court’s credibility findings were entitled to deference.
• No ineffective assistance: Strategic decisions (including allowing portions of the interview to be played, consenting to a missing witness charge, and pursuing a justification theory) did not constitute ineffective assistance.
• No reversible conflict of interest: The undisclosed business relationship between trial counsel and the prosecuting ADA did not create an actual conflict, and the defendant failed to show that any potential conflict operated on the defense.
• Sentence affirmed: The term of 22 years to life was not unduly harsh or severe given the violent and unprovoked nature of the conduct.

Analysis

A. Precedents Cited and Their Role in the Decision

• Preservation and sufficiency: People v. Montford, 207 AD3d 811 (3d Dept 2022), lv denied 39 NY3d 941 (2022), and People v. Ackerman, 173 AD3d 1346 (3d Dept 2019), lv denied 34 NY3d 949 (2019), underscore that a trial order of dismissal must specify the ground later pressed on appeal; here, defendant’s dismissal motion targeted identity, not justification, leaving the sufficiency claim unpreserved.
• Weight-of-the-evidence review of justification: People v. Hernandez, 165 AD3d 1473 (3d Dept 2018), and People v. Flynn, 233 AD3d 1087 (3d Dept 2024), lv denied 44 NY3d 982 (2025), confirm that—even when sufficiency is unpreserved—the court’s weight analysis necessarily examines whether all elements were proven and justification disproved beyond a reasonable doubt.
• Substantive law of justification: People v. DeCamp, 211 AD3d 1121 (3d Dept 2022), lv denied 39 NY3d 1077 (2023), and People v. Wilkins, 216 AD3d 1359 (3d Dept 2023), lv denied 40 NY3d 1000 (2023), articulate the Penal Law § 35.15 framework, including the initial-aggressor disqualification and the People’s burden to negate reasonable belief in the necessity of deadly force.
• Credibility and weight determinations: People v. Brooks, 233 AD3d 1358 (3d Dept 2024), and People v. Lewis, 224 AD3d 1143 (3d Dept 2024), lv denied 42 NY3d 939 (2024), highlight the appellate deference to juries’ credibility findings when the narratives conflict.
• Right to counsel and suppression: People v. Burton, 215 AD3d 1054 (3d Dept 2023), lv denied 40 NY3d 927 (2023), reiterates that the indelible right to counsel attaches upon an unequivocal request; equivocal or disputed invocations are resolved as mixed questions of law and fact with deference to hearing courts. People v. Phillips, 46 AD3d 1021 (3d Dept 2007), lv denied 10 NY3d 815 (2008), People v. High, 200 AD3d 1209 (3d Dept 2021), lv denied 37 NY3d 1161 (2022), and People v. Dawson, 195 AD3d 1157 (3d Dept 2021), affd 38 NY3d 1055 (2022), emphasize deference to credibility determinations at suppression hearings.
• Ineffective assistance—futility and strategy: People v. Henley, 232 AD3d 1117 (3d Dept 2024), lv denied 43 NY3d 930 (2025), states counsel is not ineffective for omitting arguments with little chance of success. People v. Perulli, 217 AD3d 1133 (3d Dept 2023), lv denied 40 NY3d 1081 (2023), and People v. Flynn, 233 AD3d at 1091–1092, reinforce deference to strategic choices when consistent with an articulated trial theory. People v. Smith, 237 AD3d 1367 (3d Dept 2025), lv denied 43 NY3d 1059 (2025), People v. Contompasis, 236 AD3d 138 (3d Dept 2025), lv denied 43 NY3d 1007 (2025), and People v. Wilkins, 216 AD3d at 1364–1365, apply the “meaningful representation” standard.
• Conflicts of interest: People v. Hines, 228 AD3d 995 (3d Dept 2024), lv denied 42 NY3d 938 (2024); People v. Thomas, 217 AD3d 1125 (3d Dept 2023), lv denied 40 NY3d 1013 (2023); and People v. Mero, 221 AD3d 1242 (3d Dept 2023), affd 43 NY3d 407 (2024), establish that a limited brief‑writing relationship in other counties, without file access, does not create an actual conflict; a potential conflict requires proof it operated on the defense.
• Sentencing review: People v. Diaz, 213 AD3d 979 (3d Dept 2023), lv denied 40 NY3d 928 (2023); People v. DeCamp, 211 AD3d at 1124; and People v. Mercer, 221 AD3d 1259 (3d Dept 2023), lv denied 41 NY3d 1003 (3d Dept 2024), confirm that serious, unprovoked violent conduct can sustain substantial sentences; “interest of justice” reductions are sparingly granted.

B. The Court’s Legal Reasoning

1. Preservation and scope of review. The defense moved for a trial order of dismissal only as to identity, not justification. Under Montford and Ackerman, that omission rendered the sufficiency challenge to justification unpreserved. Nonetheless, under Hernandez and Flynn, the Third Department’s weight-of-the-evidence review inherently assessed whether the People disproved justification beyond a reasonable doubt.
2. Rejection of the justification defense. The record revealed two incompatible accounts. The victims’ evidence placed the defendant turning and firing at close range after both groups walked away from the bar; police recovered 11 shell casings and found no evidence of any firearm on the victims, no return fire, and no display of a weapon on video. The defendant admitted he shot, fled, and did not call 911; he also admitted telling detectives he had never fired a gun before, a statement the jury could deem false. While the defense highlighted threats earlier in the evening and asserted that a follower displayed a gun, the lack of corroboration and substantial contrary indicia permitted the jury to find the People had disproved a reasonable belief in the necessity of deadly force. Deferring to jury credibility determinations (Brooks; Lewis), the Third Department found the verdict consistent with the weight of the evidence (DeCamp; Wilkins; Cutting; Mercer).
3. Suppression and the indelible right to counsel. The defendant argued he unequivocally invoked his right to counsel when arrested, saying “I want to call my lawyer.” At the suppression hearing, the father corroborated this claim; two detectives denied hearing such a request. Applying Burton and Phillips, the court treated the question as a mixed one of law and fact and deferred to Supreme Court’s credibility resolution crediting the detectives. The defendant received Miranda warnings, acknowledged understanding, spoke for approximately 75 minutes, and only then invoked counsel. On this record, denial of suppression was proper (High; Dawson).
4. Ineffective assistance—trial strategy and evidentiary choices. The court rejected claims that counsel’s allowance of portions of the custodial interview, consent to a missing witness charge, and focus on a justification theory constituted ineffective assistance. Under Henley, counsel is not ineffective for declining futile arguments. The record showed a cohesive self-defense theory previewed in openings and developed through proof of the defendant’s fear (recent murder of a friend; perceived threats; awareness of firearms), with objections and arguments aligned to that strategy (Flynn; Perulli). The court deemed counsel’s performance to have provided meaningful representation (Smith; Contompasis; Wilkins).
5. Conflict-of-interest claim under CPL 440.10. The centerpiece of the post-conviction challenge was the undisclosed business relationship whereby the prosecuting ADA drafted a limited number of briefs and one motion for trial counsel in other counties. Following Mero (Court of Appeals), Hines, and Thomas, the Third Department held:
   • No actual conflict existed given the limited, out-of-county nature of the work and lack of access to case files.
   • As to a potential conflict, reversal requires proof that the conflict “operated on the conduct of the defense.” Evidence that unconflicted counsel would have acted more vigorously may suffice, but the defendant bears a heavy burden.
   The hearing record did not show any inhibited advocacy. To the contrary, trial counsel secured a favorable plea offer despite strong inculpatory evidence. Although counsel purportedly told the defendant’s mother she could say things to the ADA she would “never” tell other prosecutors, counsel explained this as a product of a trusting relationship leveraged for candid negotiation in a serious case. Importantly, both counsel and the ADA denied any exchange of confidential information regarding the defendant’s case, and the defendant offered no proof to the contrary. Combined with the court’s conclusion that counsel otherwise provided meaningful representation, the CPL 440.10 denial stood (Hines; Mero).
6. Sentencing. The court affirmed the 22-years-to-life sentence. While acknowledging mitigating submissions and a limited criminal history, the Appellate Division credited the violent nature of the offense—11 shots fired, two victims wounded, one with multiple gunshot wounds—and found no basis to reduce the sentence in the interest of justice (Diaz; DeCamp; Mercer).

C. Impact and Forward-Looking Implications

• Conflicts-of-interest jurisprudence after Mero. Prusinski operationalizes the Court of Appeals’ holding in Mero within a fresh factual setting involving the same type of professional relationship. The rule is now firmly entrenched in the Third Department: a limited, out-of-county brief‑writing arrangement between defense counsel and the prosecuting ADA does not, by itself, constitute an actual conflict, and a defendant seeking relief based on a potential conflict must demonstrate how that relationship concretely constrained the defense.
• Evidentiary thresholds for “operated on the defense.” The opinion illustrates the type of showing that will be required—proof that counsel exchanged confidential information, declined lines of attack, or otherwise softened advocacy due to the relationship. Generalized suspicion, even coupled with remarks about a “trusting relationship,” is insufficient without case‑specific effects.
• Justification adjudication on appellate review. The decision underscores the practical value of weight-of-the-evidence review to defendants whose sufficiency claims are unpreserved. At the same time, it highlights how juror credibility findings—especially when reinforced by physical evidence (multiple casings, lack of return fire) and post‑incident conduct (flight, inconsistent statements)—will often carry the day against self-defense claims absent corroboration.
• Suppression practice: clarity and record-making. Prusinski is a reminder that alleged invocations of counsel made outside recorded settings are fertile ground for credibility disputes, where hearing-court deference can be outcome‑determinative. Clear, unequivocal requests and contemporaneous documentation or recordings are critical for defendants; for law enforcement, early and thorough documentation of interactions remains best practice.
• Strategic deference in ineffective assistance claims. The court’s reliance on “meaningful representation” and deference to strategic cohesion (including the acceptance of a missing witness charge and the decision to frame the case around justification) reaffirms the high threshold for second‑guessing tactical choices on appeal.
• Sentencing review. The opinion confirms that substantial terms for violent gun crimes—particularly those involving multiple shots and multiple victims—will be sustained notwithstanding mitigating background factors, absent an abuse of discretion or extraordinary circumstances justifying an interest-of-justice reduction.

Complex Concepts Simplified

• Justification (Self-Defense) under Penal Law § 35.15. A person may use physical force to defend against what they reasonably believe to be the imminent use of unlawful force by another. For deadly force, the standard is stricter: the person must reasonably believe deadly force is necessary to prevent the other’s use of deadly force. If the person was the “initial aggressor,” the defense is generally unavailable. At trial, once raised, the People must disprove justification beyond a reasonable doubt.
• Legal sufficiency vs. weight of the evidence. “Sufficiency” asks whether, viewing the proof most favorably to the People, any rational juror could convict. It must be preserved by specific motions at trial. “Weight” review is broader: the appellate court sits as a “thirteenth juror,” reviewing the record in a neutral light and deferring to credibility determinations while asking whether the verdict was against the weight of the evidence. Even if sufficiency is unpreserved, the court’s weight analysis considers whether the elements (including the negation of justification) were proven beyond a reasonable doubt.
• Indelible right to counsel (New York). Once unequivocally invoked, the right attaches and police must cease interrogation. Whether a defendant unequivocally invoked counsel is a context‑dependent inquiry; ambiguous remarks do not trigger the right. Suppression hearings resolve disputes with deference to the trial court’s credibility findings.
• Missing witness charge. A jury instruction that, when a party fails to call a witness under its control who would be expected to provide noncumulative, material testimony, permits—but does not require—the jury to draw an unfavorable inference against that party. Courts may issue the charge against either side if legal predicates are met.
• Ineffective assistance of counsel (New York standard). New York asks whether counsel provided “meaningful representation” under the circumstances, evaluating the totality of performance and strategy. Courts avoid “Monday-morning quarterbacking” of reasonable strategic choices, and counsel is not ineffective for forgoing arguments with little chance of success.
• Attorney conflicts of interest—actual vs. potential. An “actual” conflict exists when counsel’s and the defendant’s interests diverge with respect to a material factual or legal issue or a course of action. A “potential” conflict exists when such divergence could develop. Under Mero, a limited, out‑of‑county professional relationship (e.g., brief‑writing) between defense counsel and the prosecuting ADA, without access to case files, is not an actual conflict. Relief based on a potential conflict requires showing that the conflict “operated on” the defense—i.e., that counsel tempered or altered advocacy because of the relationship.
• CPL 440.10 motions. A post‑judgment mechanism to vacate a conviction based on matters outside the record (e.g., ineffective assistance due to undisclosed conflicts), typically resolved after an evidentiary hearing where credibility findings play a central role.
• County Law § 701 (Prosecutor disqualification). Disqualifying a District Attorney’s office requires an extraordinary showing; courts rarely grant such motions absent concrete evidence of prejudice or a serious conflict. Prusinski reflects that mere professional familiarity or out‑of‑county collaborations, standing alone, do not suffice.

Practical Takeaways

• Preservation is pivotal: to challenge the sufficiency of the People’s proof negating justification, an on‑the‑record motion must specifically target justification.
• Self-defense claims benefit from corroboration: physical evidence and third‑party testimony that support the defendant’s reasonable belief can be decisive; absence of a recovered weapon and lack of return fire weighed heavily here.
• Right-to-counsel invocations should be unambiguous and, where possible, recorded; credibility disputes usually favor hearing-court determinations.
• Ineffective assistance claims face a high bar where counsel’s choices align with a coherent trial theory and futile motions are eschewed.
• Conflict-of-interest challenges premised on professional relationships with prosecutors require case‑specific proof that the relationship concretely inhibited defense advocacy; generalized concerns are insufficient after Mero and now Prusinski.
• Mitigation at sentencing may be outweighed by the gravity of violent gun offenses, especially where multiple victims and multiple shots are involved.

Conclusion

People v. Prusinski fortifies several important strands of New York criminal jurisprudence. It reiterates the structure of appellate review in justification cases—linking unpreserved sufficiency claims to robust weight analysis while honoring jury credibility determinations. It underscores the deference accorded to suppression courts on contested invocations of the indelible right to counsel. And, most significantly, it cements the Court of Appeals’ ruling in Mero: a limited, out‑of‑county brief‑writing relationship between defense counsel and the prosecuting ADA does not create an actual conflict, and potential conflicts demand concrete proof that the relationship impaired the defense.

For trial and appellate practitioners, Prusinski is both a cautionary and a clarifying decision. It cautions that preservation, corroboration, and clear record‑making are critical; and it clarifies that conflict-of-interest claims must be anchored in demonstrable effects on advocacy, not merely in professional proximity. In the broader legal context, the opinion contributes to predictability in conflict jurisprudence, stability in the administration of suppression law, and consistent appellate review of justification defenses in violent gun cases.

Case Metadata

• Court: Appellate Division, Third Department
• Date: October 30, 2025
• Citation: 2025 NY Slip Op 05990
• Panel: Clark, J.P., Aarons, Lynch, Ceresia, and Fisher, JJ. (opinion by Fisher, J.)
• Disposition: Judgment and order affirmed
• Note: The second-degree attempted murder count was dismissed as subsumed by the first-degree verdict.