Editors’ Note: This article has been updated to reflect a Correction.

ALBANY – The state Court of Appeals fell one vote short Tuesday of adopting a formal system of deciding whether defense counsel is too conflicted to provide adequate representation.

Chief Judge Jonathan Lippman (See Profile) and two of his colleagues wanted New York judges to start using a method similar to one used in federal courts, where trial judges ask six explicit questions to determine if counsel has a conflict of interest and if the defendant understands the implications of that conflict.

But three other judges said the state’s judiciary should continue using the method set forth by the Court of Appeals in 1975 in People v. Gomberg, 38 NY2d 307, where trial judges decide whether conflicts exist on a case-by-case basis as long as they are primarily “satisfied” that a defendant’s waiver of a potential attorney conflict was informed.

Judges are not required to ask specific questions about potential conflicts under the current system, largely for fear of divulging privileged communications between defendants and their attorneys, according to the Court of Appeals’ ruling in People v. Cortez, 225.

Judge Sheila Abdus-Salaam (See Profile), writing in support of the current system, said Lippman’s approach “retreats from decades of New York law, which requires ‘no prescribed catechism that [trial courts] must follow in ascertaining a defendant’s understanding’” of their choices about retaining potentially conflicted attorneys.

“Given that trial judges are in the best position to evaluate these case-by-case circumstances, they should be permitted to employ common sense rather than ‘catechisms,’ and should not be constrained by a conflict inquiry that is formulaic rather than adaptive to the conditions of the specific case,” Abdus-Salaam wrote in a concurrence to People v. Cortez.

The Lippman camp and the Abdus-Salaam camp engaged in a lengthy discussion over the attorney conflict inquiry in Tuesday’s ruling, in which the seventh and potentially tie-breaking judge on the court, Jenny Rivera (See Profile), took no part. Judges do not indicate why they do not participate in cases.

The two camps also differed over the admission of evidence during a murder trial in Manhattan Supreme Court from diaries in which Paul Cortez said two former girlfriends betrayed him and he wanted to harm them with knives.

Lippman held that the introduction of bad thoughts that never developed into criminal behavior should be subject to the same established restrictions of other bad acts under People v. Molineux, 168 NY 264 (1901). Molineux prohibits an inference of guilt from evidence probative of no more than predisposition to a kind of behavior.

But Abdus-Salaam said Lippman was proposing an expansion of Molineux by treating Cortez’s bad thoughts the same as bad acts. She said Molineux should be reserved for prior crimes or bad acts, not for a defendant’s unfulfilled bad thoughts.

As far as Cortez’s conviction was concerned, the legal discussions were academic. All six judges ruled that the potential conflict involving the co-counsel at his trial or the introduction of Cortez’s journal entries did not unfairly affect his conviction for killing a woman in 2005.

The ruling affirmed a decision by the Appellate Division, First Department.

Cortez argued that Justice Carol Berkman inadequately inquired whether he wanted to keep Dawn Florio as the second chair at his defense table, even though Florio at that time faced prosecution by the Manhattan district attorney’s office for allegedly trying to smuggle drugs to her boyfriend in jail.

During a Gomberg hearing, Berkman admitted that she “never quite know[s] what to say” when inquiring about a potential conflict of interest involving an attorney.

She elicited from Cortez that he knew about the co-counsel’s “pending matter” and told the defendant that Florio faced the potential loss of her law license as a result of her prosecution.

The inquiry ended with Berkman asking Cortez “to make explicit that he understood what was ‘going on’ and that he wished to proceed with co-counsel anyway. Defendant responded, ‘Yes. I understand that. And she has not compromised this case on account of her own.’”

A jury convicted Cortez of second-degree murder for stabbing to death a woman he believed he once had a relationship with, Catherine Woods, in her apartment where she was living with her current boyfriend.

On appeal, however, Cortez maintained that his waiver of the co-counsel’s conflict was not adequately made out by the colloquy with the judge and that Florio may have been conflicted from presenting a whole-hearted defense in his favor because of considerations over her own prosecution.

Specifically, Cortez argued that Florio, who was in charge of the forensic aspects of the case, failed to rebut expert prosecution witnesses over their analysis of forensic evidence damaging to the defense.

Judges Susan Phillips Read (See Profile) and Eugene Pigott Jr (See Profile) joined in Abdus-Salaam’s concurrence.

Six-Question Approach

Abdus-Salaam noted that the Gomberg approach developed so that a defendant would not be compelled to reveal “details of the defense conferences, or strategies” while still giving the judge enough information to decide the effects a potential conflict could pose to the right to adequate representation.

But Lippman wrote that the federal approach embraced by the U.S. Court of Appeals for the Second Circuit in United States v. Curcio, 680 F.2d 881 (1982), appears to be “well-designed” to produce the kind of searching inquiry he said was absent under the state’s use of unscripted inquiries under Gomberg.

Curcio requires trial judges to ask six questions about an attorney’s potential conflicts, including the court’s duty to inform the defendant of his right to conflict-free representation, to instruct the defendant of the dangers of the potential conflict and to give the defendant time to decide whether to retain counsel.

“It is an approach that has proved workable … and which would be prudently followed in our criminal courts where there is doubt, as there evidently was in this [Cortez]case, as to how a conflict waiver inquiry should proceed,” Lippman wrote.

Berkman’s inquiry “simply does not provide the necessary assurance that co-counsel’s conflict and its risks were understood and freely assumed by defendant in the context of a choice essentially defined by the entitlement to conflict-free representation,” he added.

Lippman was joined by judges Victoria Graffeo (See Profile) and Robert Smith (See Profile).

In an amici curiae brief prepared by Levitt & Kaizer of Manhattan, the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers argued that Berkman failed to properly inform Cortez of his right to a conflict-free attorney, explain how a conflict involving his attorney might prejudice him or give him enough time to mull over whether to keep Florio on his defense team.

The inquiry in Cortez’s case would have been handled more thoroughly and fairly if it had been under the federal rules of Curcio, the groups argued.

Assistant Manhattan District Attorney David Cohen represented the prosecution.

Marc Fernich of Manhattan, who argued for Cortez, said the ruling presented the unusual situation where the court agreed that the trial judge’s inquiry of the potential conflict of interest was flawed and the use of Cortez’s journal entries should not have been allowed into evidence. Yet his client gets no relief.

“We are gratified that we won the legal battle but disappointed that we lost the war,” he said in an interview. “It doesn’t do anything for Paul Cortez, but it begins an interesting conversation and rolls the ball forward for New York criminal defendants.”

Cortez, 33, is serving a 25-years-to-life sentence in state prison.