Introduction

This appeal tests when a New York court must conduct an evidentiary hearing on a Criminal Procedure Law article 440 motion alleging ineffective assistance of counsel due to an attorney conflict of interest. In People v. Rasul, the Appellate Division, Third Department reversed a summary denial of a CPL 440.10 motion and remitted for a hearing where the defendant supported his conflict claim with nonrecord affidavits suggesting that his lawyer and his codefendant’s lawyer worked out of the same office, presented themselves as closely affiliated, and coordinated a strategy that allegedly benefited the codefendant at the expense of the defendant.

The case arises from 2017 narcotics and weapons charges following a no-knock search warrant execution in Albany. The defendant pleaded guilty in 2018 to second-degree criminal sale of a controlled substance and second-degree criminal possession of a weapon, receiving a 12-year determinate sentence with five years of postrelease supervision as a second felony offender. The codefendant—who is a family member of the defendant (exact relationship unclear)—was not indicted and later pled to a misdemeanor, apparently with a time-served disposition.

After an initial pro se CPL 440 motion on different grounds was denied without a hearing in 2018, the defendant, through counsel, filed a second CPL 440.10 motion in 2023 alleging that his counsel’s close professional relationship with the codefendant’s counsel presented either an actual or potential conflict of interest that operated on the defense. County Court (Little, J.) denied the motion without a hearing, principally invoking the discretionary procedural bar in CPL 440.10(3)(c). The Third Department granted leave and reversed.

The central issues are: (1) whether the trial court abused its discretion by denying a hearing under CPL 440.10(3)(c) where the motion alleged nonrecord facts suggesting an attorney conflict; (2) how New York’s doctrines distinguishing actual and potential conflicts apply when separate lawyers allegedly share a practice address and coordinate strategy for co-defendants; and (3) whether affidavits from the defendant, his sister, and the codefendant are sufficient to trigger a hearing without attorney affidavits.

Summary of the Opinion

The Third Department held that County Court abused its discretion by summarily denying the CPL 440.10 motion without a hearing. The court reiterated that while CPL 440.10(3)(c) permits denial of successive motions on issues that could have been raised earlier, such denial is discretionary and may yield to the “interest of justice” where the motion otherwise appears meritorious.

Reaffirming the distinction between actual and potential conflicts, the court noted:

• An actual conflict exists when an attorney (or attorneys associated in the same firm) simultaneously represents clients with adverse interests; reversal is required absent a valid waiver.
• A potential conflict requires a showing that the conflict actually operated on the defense.

Here, the motion alleged nonrecord facts—supported by affidavits—suggesting that the defendant’s and codefendant’s counsel worked out of the same address, presented themselves as the same firm or working “closely together,” and executed a coordinated plan under which the defendant would plead guilty (after waiving suppression) to secure the codefendant’s release—which occurred. The codefendant’s affidavit added that his counsel waived his speedy trial rights to await the defendant’s plea and sentencing.

The People’s opposition leaned on a representation that the defendant’s counsel told the prosecutor’s office she did not share a law firm with the codefendant’s counsel. The Third Department held that—even if this scuttled an “actual conflict” theory—it did not address the broader “potential conflict” inquiry. Given the materiality of these nonrecord allegations, the striking disparity in outcomes (12 years’ incarceration versus time served), and the absence of any waiver on the record, a hearing was required.

The court expressly did not decide the merits of the conflict claim. It ordered reversal and remanded for a CPL 440.10 hearing to resolve the disputed factual issues.

Analysis

Precedents Cited and Their Influence

• People v. Perez, 185 AD3d 1156 (3d Dept 2020): The court cites Perez to clarify that CPL 440.10(3)’s procedural bars are discretionary. Even if a defendant could have raised an issue earlier, a court “in the interest of justice and for good cause shown” may consider the motion if meritorious. Perez supports the Third Department’s choice to prioritize substantive justice over rigid application of procedural preclusion.
• People v. Lee, 172 AD3d 1925 (4th Dept 2019): Reinforces the same discretionary principle under CPL 440.10(3), bolstering the appellate court’s stance that summary denial is not automatic.
• People v. Bailey, 232 AD3d 1031 (3d Dept 2024), lv denied 43 NY3d 929 (2025): Establishes that a hearing is warranted when the submissions show material, nonrecord facts that would entitle the defendant to relief if proven. Bailey underwrites the hearing requirement in Rasul because the core allegations are nonrecord and, if true, could establish a conflict that undermined the plea.
• People v. Wright, 27 NY3d 516 (2016): Provides the abuse-of-discretion standard for reviewing summary denials of CPL 440 motions, framing the appellate lens through which the Third Department examines County Court’s decision.
• People v. Thomas, 217 AD3d 1125 (3d Dept 2023), lv denied 40 NY3d 1013 (2023): Addresses conflict-of-interest claims and distinguishes between actual and potential conflicts. Rasul extends Thomas’s framework to the co-defendant context where separate counsel may be closely associated.
• People v. Hines, 228 AD3d 995 (3d Dept 2024), lv denied 42 NY3d 938 (2024): Clarifies that simultaneous representation of adverse clients constitutes an actual conflict requiring reversal without waiver; also recognizes the significance of firm association. Rasul leverages Hines’s articulation of the “actual conflict” rule while emphasizing that even absent formal firm association, potential conflicts born of close professional relationships demand scrutiny.
• People v. Jackson, 138 AD3d 1431 (4th Dept 2016), and People v. Lynch, 104 AD3d 1062 (3d Dept 2013): Both stand for the proposition that attorneys associated in the same firm who simultaneously represent criminal co-defendants stand in actual conflict absent waiver. Rasul uses these cases as the benchmark for “actual conflict” while noting the present dispute might instead fit the “potential conflict” category if no law-firm association is proven.
• People v. Mero, 43 NY3d 407 (2024), aff’g 221 AD3d 1242 (3d Dept 2023): The Court of Appeals held that for potential conflicts, a defendant must show that the conflict “actually operated on the conduct of the defense.” Rasul relies heavily on Mero’s standard and reminds that many conflict claims fail on the merits after a hearing—but that procedural fairness requires holding the hearing first where plausible, material nonrecord allegations exist.
• People v. Brown, 33 NY3d 983 (2019): Confirms the “operated on the defense” requirement for potential conflict claims and informs Rasul’s threshold analysis for a hearing.
• People v. Mobley, 59 AD3d 741 (2d Dept 2009), lv denied 12 NY3d 856 (2009): Recognizes that nonrecord facts are appropriately developed via CPL 440. This supports Rasul’s conclusion that the allegations here cannot be resolved on the direct-appeal record and should be explored evidentiary through a 440 hearing.
• People v. Stevens, 64 AD3d 1051 (3d Dept 2009), lv denied 13 NY3d 839 (2009): Notes that lack of an affidavit from prior counsel is not automatically fatal to a CPL 440 motion when other evidence sufficiently corroborates the claim. Rasul deploys Stevens to reject a strict affidavit-from-counsel prerequisite for a hearing.
• People v. Phelps, 236 AD3d 1194 (3d Dept 2025): Cited to emphasize that refusing a hearing in the face of material nonrecord allegations can be an abuse of discretion.

Legal Reasoning

The court’s reasoning proceeds in three steps.

1. Threshold for a CPL 440 hearing with successive motions. While CPL 440.10(3)(c) permits denial of a successive 440 motion when the issue could have been raised earlier, the statute’s text makes the bar discretionary. If the motion is otherwise meritorious and justice so requires, courts may reach the merits and hold a hearing. Here, the conflict claims rest on nonrecord facts—shared office address, representations to the family that the attorneys “worked closely together,” and coordinated strategy—making a CPL 440 proceeding the proper vehicle. The affidavits, if true, are material and could entitle the defendant to relief (Bailey). Thus, the interest of justice counseled in favor of a hearing.
2. Actual vs. potential conflict framework.
   • Actual conflict: If counsel are associated in the same firm and represent co-defendants with divergent interests, the conflict is “actual.” Absent a valid, informed waiver, reversal is required (Hines; Jackson; Lynch). The People’s assertion that the two lawyers denied being in the same firm, even if credited, would negate an “actual conflict” theory but does not end the inquiry.
   • Potential conflict: A close professional association short of a formal firm relationship can still create a potential conflict that requires reversal only if it “operated on the defense” (Mero; Brown). In Rasul, the coordinated counsel conduct—advising the defendant to waive suppression and plead to secure the codefendant’s release, and the codefendant’s counsel waiving speedy trial to await the defendant’s plea—are quintessential “operation” allegations.
3. Why a hearing was mandatory on this record. The court identifies multiple red flags:
   • Attorneys shared the same business address; the defendant’s sister averred both lawyers represented they were in the same firm or worked “closely together,” and she retained both at the same office, paying separate retainers.
   • Neither defendant nor codefendant was advised of a conflict or asked to waive one; the record reveals no consent or waiver.
   • The codefendant’s counsel allegedly waived speedy trial rights to await the defendant’s plea and sentencing—suggesting coordinated strategy across clients with divergent interests.
   • The stark, unexplained disparity in outcomes—12 years’ incarceration for the defendant versus a time-served misdemeanor for the codefendant—raises a plausible inference that counsel’s loyalties may have been divided.

   Because the People’s opposition did not confront the potential-conflict theory and because credibility and factual disputes cannot be resolved on papers alone, the County Court’s summary denial was an abuse of discretion.

Impact and Significance

Rasul does not announce a new substantive rule so much as it crystallizes and enforces procedural safeguards in conflict-of-interest litigation under CPL 440:

• Lower threshold for hearings in conflict cases: When nonrecord affidavits plausibly indicate a close professional association between counsel for co-defendants and coordinated strategic choices potentially favoring one client over another, trial courts should err on the side of holding a hearing—even on a successive CPL 440 motion.
• Firm association is not the whole story: Prosecutors and trial courts cannot dispose of conflict claims solely by showing that the attorneys do not belong to the same firm. Ongoing business relationships, shared office arrangements, and coordinated defense strategies can sustain a potential conflict requiring a fact hearing.
• Affidavits from counsel are helpful but not indispensable: Rasul reinforces that well-corroborated affidavits from defendants and witnesses may suffice to trigger a hearing even without affidavits from the accused attorneys.
• Likely increase in remand hearings: Rasul is likely to prompt more trial-level evidentiary hearings on conflict claims where nonrecord facts are in dispute—especially in cases with packaged or coordinated plea dynamics and shared-practice arrangements.
• Practical compliance incentives: Defense attorneys will have stronger incentives to run conflict checks, make clear disclosures, obtain informed written waivers where appropriate, and avoid coordinated strategies that could be seen as privileging one client over another. Prosecutors and judges may more proactively inquire into potential conflicts when co-defendants’ counsel appear closely associated.

What the Hearing on Remand Should Resolve

The remand hearing will likely focus on the following factual and legal questions:

• Nature and scope of the relationship between the two attorneys:
  • Were they part of the same firm during the relevant period? Did they share letterhead, cases, trust accounts, administrative staff, or malpractice coverage?
  • Even if not a single “firm,” did they have an ongoing business partnership or of-counsel relationship that could bear on divided loyalties?
• Conflict disclosures and waivers:
  • Did either client receive conflict counseling, independent advice, or provide informed written consent?
  • Was any “Gomberg-style” inquiry conducted by the court given the multiple/coordinated representation features?
• Operation on the defense:
  • Did the defendant’s counsel recommend waiving suppression or other defenses to benefit the codefendant?
  • Did the codefendant’s counsel waive speedy trial strategically to align with the defendant’s plea and sentencing timetable? Were these decisions coordinated?
  • Did the plea reflect a “package deal” dynamic, and if so, was the plea fully voluntary and informed?
• Causal nexus to outcome:
  • Is there a reasonable likelihood that the conflict altered counsel’s advice, negotiation posture, or litigation strategy to the defendant’s detriment?
  • Could the defendant have achieved a materially better result absent the conflict, or was the chosen strategy sound regardless?

Practice Pointers

• Defense counsel representing co-defendants—or separate defendants arising from the same event—should avoid any appearance of shared or coordinated representation without full conflict evaluation, disclosure, and documented waivers where ethically permissible.
• Shared office space and informal partnerships can trigger potential conflicts. Clear, written engagement letters delineating firm status and independence, along with conflict waivers, may mitigate risk.
• Prosecutors and trial judges should proactively flag and inquire into potential conflicts in co-defendant contexts, particularly when counsel appear to share a business address or refer one another within the same office suite.
• Where a plea appears tied to benefits for a family-member codefendant, courts should conduct a more robust voluntariness colloquy recognizing the pressures of package-like deals.

Complex Concepts Simplified

• CPL 440.10 motion: A post-judgment procedure allowing defendants to challenge a conviction based on facts outside the trial record (e.g., newly discovered evidence, ineffective assistance, or constitutional violations). It complements, rather than duplicates, direct appeal.
• CPL 440.10(3)(c) discretionary bar: Courts may deny a successive 440 motion if the defendant could have raised the issue earlier but did not. However, the statute is discretionary: courts may overlook the bar “in the interest of justice” when the motion appears meritorious.
• Actual conflict of interest: A situation where an attorney (or associated firm attorneys) represents clients whose interests are directly adverse in the same criminal matter. In New York, this typically requires reversal unless the defendant knowingly and voluntarily waived the conflict.
• Potential conflict of interest: A scenario where there is a significant risk that representation will be materially limited by responsibilities to another client or by an attorney’s own interests. Relief is granted only if the conflict “actually operated on the defense”—that is, it changed counsel’s strategy or advice in a way that harmed the defendant’s interests.
• Nonrecord facts: Facts not contained in the trial or plea record and therefore not reviewable on direct appeal. These are appropriately developed through CPL 440 hearings.
• Abuse of discretion: A standard of appellate review that defers to trial courts’ judgments unless they act arbitrarily, ignore controlling law, or make decisions without a rational basis. Summary denial of a CPL 440 motion in the face of material nonrecord allegations can be such an abuse.
• Postrelease supervision (PRS): A period of supervision after release from prison during which the defendant must comply with specified conditions; violations can lead to re-incarceration.
• No-knock search warrant: A judicial authorization allowing police to enter without announcing, typically granted on a showing that announcement would risk safety, permit destruction of evidence, or be futile.

Conclusion

People v. Rasul reinforces a vital procedural safeguard: courts should not summarily deny CPL 440.10 motions alleging attorney conflicts when affidavits present material, nonrecord facts suggesting a shared practice or coordinated strategy that may have compromised the defendant’s representation. The opinion clarifies that a finding that counsel were not technically in the same firm forecloses only an “actual conflict” theory; it does not defeat a “potential conflict” claim when credible evidence suggests the conflict may have operated on the defense.

By mandating a hearing in these circumstances—despite a prior unsuccessful 440 motion and without requiring affidavits from the attorneys—Rasul emphasizes substance over form. It harmonizes with recent New York authority demanding that courts test conflict allegations in an evidentiary setting, recognizing that such claims are inherently nonrecord and turn on credibility and nuanced professional relationships.

The broader message is twofold: defendants are entitled to conflict-free counsel or a valid, informed waiver; and trial courts must diligently safeguard that right by holding hearings when the papers plausibly show divided loyalties. Rasul thus stands as an important procedural precedent at the intersection of post-conviction practice and the constitutional guarantee of effective assistance of counsel.