ALBANY – The Court of Appeals Thursday ordered a new trial for one defendant, vacated the conviction of a second and said a third defendant’s conviction may have been affected by a conflict of interest involving his lawyer.

The court said that lower court judges could have corrected the potential errors it cited in the three rulings.

In People v. Oddone, 236, the judges unanimously vacated the first-degree manslaughter conviction Anthony Oddone for the headlock strangulation of bar bouncer Andrew Reister in 2008 at the Publick House bar in the Hamptons.

The court ruled that the judge at Oddone’s trial in Suffolk County Court erred by refusing to let Oddone’s attorney refresh the memory of a defense witness while she was on the stand.

The waitress, Megan Flynn, had told insurance investigators before the trial that she thought Oddone had Reister in a headlock “for maybe 6 to 10 seconds.”

When Flynn, who was called by Oddone’s attorneys, was asked how long the headlock lasted, she replied, “I didn’t have a watch. I wasn’t keeping track of time. But it could have been a minute or so. I don’t know.”

Defense attorney Serita Kedia then tried to show Flynn her previous statement, but was not permitted to do so by the judge, C. Randall Hinrichs, who is now a Supreme Court justice.

Hinrichs said the witness had “given no indication she needs her memory refreshed.”

Writing for the Court of Appeals, Judge Robert Smith (See Profile) said Flynn’s testimony was germane to a central point of Oddone’s defense, that he had not applied the headlock for an excessive length of time, and limiting Kedia’s examination of the waitress “was important enough to justify reversal.”

“When a witness, describing an incident more than a year in the past, says that it ‘could have’ lasted ‘a minute or so,’ and adds ‘I don’t know,’ the inference that her recollection could benefit from being refreshed is a compelling one,” Smith wrote.

He continued, “More fundamentally, it was simply unfair to let the jury hear the ‘a minute or so’ testimony—testimony damaging to the defense, from a defense witness’s own lips—while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.”

The court ordered that Oddone, who is serving 22 years in prison for first-degree manslaughter, be given a new trial.

Chief Judge Jonathan Lippman (See Profile) and Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Eugene Pigott Jr. (See Profile), Jenny Rivera (See Profile) and Sheila Abdus-Salaam (See Profile) joined in the ruling.

They reversed an Appellate Division, Second Department determination in People v. Oddone, 89 AD3d 868 (2011), which uphold the conviction.

Oddone was a patron who was dancing on a table with a woman at the Southampton bar in August 2008. Oddone and Reister began to fight after Reister shoved Oddone off the table. Oddone got Reister in a headlock. Witnesses’ testimony differed as to how long the headlock continued, but most agreed it lasted upwards of three minutes, with Oddone continuing to apply the hold even after Reister appeared to lose consciousness.

The jury acquitted Oddone of murder but convicted him of manslaughter after deliberating for nine days.

Marc Wolinsky of Wachtell, Lipton, Rosen & Katz represented Oddone on appeal pro bono. Suffolk County assistant district attorney Anne Oh appeared for the prosecution.

Drug Convictions

The court also ordered in a 4-2 ruling that two misdemeanor marijuana convictions against Cavell Craig Tyrell be vacated after finding that the guilty pleas he entered were not knowing, intelligent and voluntary.

In both instances, the majority said in a decision by Graffeo, the records of Tyrell’s brief appearances before Criminal Court judges Kevin McGrath (See Profile) and Ruth Pickholz (See Profile) contain no statements by the judges or the parties indicating that Tyrell understood he was waiving basic constitutional rights by pleading guilty.

Without such evidence that Tyrell knew he was giving up his rights against self-incrimination, of trial by jury and to confront accusers, the court said it cannot say the pleas conformed with the U.S. Supreme Court mandates in Boykin v. Alabama, 395 US 238 (1969).

“The record must show, or there must be an allegation and evidence which show, that an accused intelligently and understandingly rejected his constitutional rights,” Graffeo wrote, quoting People v. Harris, 61 NY2d 9 (1983). “Anything less is not waiver.”

The judges ordered that Tyrell’s 2009 convictions, for which he received short jail sentences, be vacated.

Lippman, Read and Rivera were also in the majority.

In a dissent, Smith wrote that the “mere omission of a recital” about the defendant’s constitutional rights from an allocution does not nullify a subsequent guilty plea.

“The majority seems to hold that at least some of the so-called ‘Boykin rights’ must be recited in a plea allocution, and that if they are not the defendant is entitled to plea withdrawal, regardless of whether he was prejudiced by the omission or whether he had made a motion to withdraw his plea,” said Smith, who was joined in dissent by Pigott.

Smith said the court’s most significant recent departure from the rule on the nullification of guilty pleas came in People v. Catu, 4 NY3d 242 (2005), in which the court said the failure to notify a defendant that post-release supervision was a required element of a plea made reversal of the conviction mandatory.

“I joined the Catu decision, and I do not suggest that we can or should overrule it,” Smith wrote. “But it set us on a long and troubled journey that I would not, if I had the choice to make over, embark on again. I now fear that we may be making a similar mistake.”

Manhattan assistant district attorney Ryan Gee argued for the prosecution. Harold Ferguson Jr. of the Legal Aid Society of New York City represented Tyrell. The cases are People v. Tyrell, 230, and People v. Tyrell, 231. Abdus-Salaam took no part in the decision.

Assigned Counsel

In People v. Payton, 232, the 7-0 court said defendant Wendell Payton should get a hearing on his CPL 440.10 motion to set aside his robbery conviction because his assigned counsel at trial, Robert Macedonio, was himself under investigation by the Suffolk County district attorney on unrelated criminal charges.

Payton said he did not know of the investigation of his attorney—the district attorney’s office executed a search warrant at Macedonio’s office two weeks before his trial began in 2008—until Payton appeared for sentencing on his conviction in March 2008 in Suffolk County Court.

Payton was assigned a new counsel, but his motion to set aside the verdict based on a CPL 330.30 claim of ineffective assistance for Macedonio’s alleged conflict was denied by Judge Hinrichs. Hinrichs, held that Macedonio’s own legal problems did not present an actual conflict of interest, just a potential one, and that the search of Macedonio’s office did not necessarily mean the attorney himself was the subject of a criminal investigation.

In June 2010, Hinrichs denied Payton’s motion to set aside his conviction under 440.10 without a hearing under the same reasoning he used to deny the 330.30 motion.

In an unsigned ruling, the Court of Appeals rejected Payton’s contention that automatic reversal of his conviction was warranted. It said it declined to adopt such a per se rule during its decision in a similar case, People v. Konstantinides, 14 NY3d 1 (2009).

“An actual conflict would exist where a defense attorney was implicated in the crimes for which his client stood trial, but that was not the situation in Konstantinides and is certainly not the case here,” the court said.

However, the court said Payton should get a hearing on his 440.10 application at which he must demonstrate that his “defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation” in order for his ineffective assistance challenge to succeed.

Payton was sentenced to 13 years in prison in September 2008.

Macedonio pleaded guilty to a fifth-degree criminal possession of cocaine charge and received a conditional discharge a few months later, according to the court’s ruling.

Suffolk County assistant district attorney Glenn Green represented the prosecution. Kirk Brandt of the Legal Aid Society of Suffolk County argued for Payton.