People v. Durand

Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), rendered May 16, 2006. The judgment convicted defendant, upon a jury verdict, of criminal trespass in the third degree (three counts).

It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Wayne County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him following a jury trial of three counts of criminal trespass in the third degree (Penal Law § 140.10 [a]) in connection with his unlawful entry into a henhouse at the Wegmans Egg Farm on three occasions. Defendant contends that he was denied effective assistance of counsel , because he and his two codefendants were represented by the same attorney when defendant testified before the grand jury. Defendant contends that defense counsel obtained favorable plea bargains for his codefendants, that no plea negotiations were conducted on his behalf and that he was advised to testify before the grand jury wherein he provided incriminating evidence that was used against him at his trial. We conclude that County Court should have conducted a Gomberg hearing (see People v Gomberg, 38 NY2d 307 [1975]) with respect to the contention of defendant that he was denied effective assistance of counsel at the pretrial stage of the criminal proceeding prior to denying his motion seeking to dismiss the indictment on that ground. We therefore hold the case, reserve decision and remit the matter to County Court for a Gomberg hearing and reconsideration of the motion to dismiss the indictment. Present—Scudder, PJ., Hurlbutt, Fahey and Green, JJ.