AK Houses in Manhattan, the site of the 2010 shooting. (Photo: Google)

New York state’s highest court on Thursday allowed for a defendant convicted of murder and weapons charges nearly seven years ago to have a trial court in Manhattan hear arguments on whether he was represented by ineffective counsel at the time because of a conflict of interest.

The defendant, Boris Brown, had argued that he was deprived of effective counsel because his attorney, Jeffrey Chabrowe, was also the lawyer for another suspect in the case, though in an unrelated matter.

The state Court of Appeals didn’t go so far as to reverse Brown’s conviction in its decision, but did say a state supreme court judge improperly denied him a hearing on a motion to vacate his judgement based on ineffective counsel after he was found guilty and sentenced in the case.

“On this record, we conclude that Supreme Court abused its discretion in determining that a hearing was not warranted to address the allegations contained in defendant’s CPL 440.10 motion regarding Chabrowe’s representation of defendant and whether any conflict of interest existed warranting reversal,” the court’s decision said.

Chabrowe, a criminal defense attorney with an office in Manhattan, could not immediately be reached for comment on the decision Thursday.

The case involved an unusual situation where one of the other suspects in the case, Ahmed Salaam, paid Chabrowe to represent Brown on the charges. Soon after, Salaam was arrested on unrelated fraud charges and hired Chabrowe to also represent him in that matter.

An independent counsel was appointed by the trial court to consult Brown on the potential conflict of interest that would exist if he continued to retain Chabrowe and if Salaam was called as a witness at trial. Brown confirmed to the counsel that he understood Chabrowe may have to cross-examine Salaam if he was called as a witness by prosecutors.

Brown agreed to waive any conflict in the case and proceeded to trial with Chabrowe as his attorney. He was found guilty of depraved indifference murder and weapons possession charges and sentenced to more than three decades in prison. Salaam was never called to testify.

Brown then moved to set aside his conviction on grounds that he had been deprived of conflict-free representation. The trial court denied his motion without a hearing, which the Appellate Division, First Department affirmed. Associate Judge Rowan Wilson granted Brown leave to appeal to the high court.

But David Klem, an attorney from the Center for Appellate Litigation, argued before the Court of Appeals in March that the conflict existed, regardless of whether Brown agreed to waive it or not. Klem claimed the court shouldn’t have allowed a waiver because Salaam, who was with Brown at the scene of the murder, was “deeply implicated” in the murder.

Brown, Klem claimed, could have fronted a defense at trial that pinned the charges on Salaam. Sharing Chabrowe as an attorney prevented him from doing that, Klem argued.

“The defense in this case is simple; it’s because Salaam did it. No reasonable rational defendant would ever accept that,” Klem argued. “And for the court to accept that waiver, knowing everything that the court would know here, would be permitting a defendant to, in essence, commit suicide and to protect a guilty party or potentially guilty party.”

Klem said when reached by phone Thursday that he was looking forward to Brown’s hearing before the trial court on the motion to vacate his judgement based on ineffective counsel.

“We’re gratified by the decision and look forward to hearing,” Klem said.

The Manhattan District Attorney’s Office, which prosecuted the case, argued before the court that Brown was legally able to waive the conflict because they had no evidence Salaam was involved in the shooting. Therefore, Chabrowe’s representation of both men wouldn’t have undermined Brown’s defense at trial, argued Assistant District Attorney Sylvia Wertheimer.

“Even if it’s true that Salaam paid for the lawyer, it could not have operated on the conflict, resulted in an unwaivable conflict—resulted only in a potential conflict that didn’t operate because there was no evidence, no reason to believe that Salaam participated or was involved in the shooting,” Wertheimer argued.

Brown has alleged that Salaam committed the murder in retaliation for being robbed at gunpoint. Salaam had returned to where he was robbed, Brown claimed, which is when the shooting happened. The event resulted in the death of a 17-year-old girl.

Klem had argued that, because of the robbery, Salaam had motive to commit the murder while Brown did not. Wertheimer said during arguments that just because Salaam had a motive doesn’t mean he was the one who committed the crime, and that the evidence supported their conclusion.

“The defendant referred to motive. Motive isn’t conduct; it’s just speculation,” Wertheimer argued. “There’s not one thing here to suggest that Salaam is the person who committed [the crime.]”

The Manhattan District Attorney’s Office declined to comment on the decision Thursday.

Associate Judge Leslie Stein argued in a dissenting opinion that a hearing on Brown’s motion isn’t necessary because such actions should only be made to resolve disagreements of fact. She said there was no factual dispute at this point in the case.

“The majority has necessarily determined that defendant has raised a question of fact; however, the majority does not identify the factual dispute between defendant and the People that purportedly exists,” Stein wrote. “In my view, the record discloses no such question of fact.”

The court’s remaining judges signed onto the majority opinion, which was issued in a memorandum. Stein was the lone dissent.

Brown’s motion to vacate his judgement will now be heard before the trial court in Manhattan, where it will be decided.


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