People v. Caruso , 68 A.D.2d 570 ( 1979 )

OPINION OF THE COURT

O’Connor, J.

The defendants were convicted, after a jury trial, of criminal usury. The verdicts are supported by the evidence and the judgments should be affirmed.

The guilt of the defendants was established beyond a reasonable doubt. The admission into evidence of certain taped conversations between the complainant and defendant Caruso did not constitute reversible error as to defendant Fioretti. Although these taped statements were inadmissible against Fioretti (see People v Rastelli, 37 NY2d 240), no objection was taken by defense counsel. In addition, Fioretti was mentioned only tangentially in the conversations and the complainant, who testified at trial, was available for cross-examination as to the same basic evidence reflected in both his testimony and the tapes.

Although the court failed to make an inquiry pursuant to the dictates of People v Gomberg (38 NY2d 307) as to whether the defendants were aware of potential conflicts that might arise from their joint representation by one attorney and whether they still chose to be so represented, such a failure does not warrant reversal where no prejudice exists (People v Sullivan, 64 AD2d 533; People v Ragonesi, 63 AD2d 741; People v Ostin, 62 AD2d 1004). Defendant Caruso does not demonstrate any prejudice and defendant Fioretti’s claims are without merit. Both defendants relied essentially on a defense that the transaction involved was not usurious. Both had the same basic interest in discrediting the complainant and there is nothing to indicate that their other interests or strategies were at all conflicting. It is noted on behalf of Fioretti that the defense attorney failed to seek limiting instructions regarding the use of the taped conversations between Caruso and the complainant, but no hint is given as to how Caruso would have been hurt had such a limiting request been made. Furthermore, as already noted, the complainant was available to Fioretti for cross-examination and the taped conversations added little to his trial testimony as far as Fioretti’s role in the usurious loan was concerned. Fioretti complains about a weak summation on his behalf, but no hint is given as to how this arose out of the joint representation. Caruso certainly did not benefit. Both defendants had the same interest in discrediting the complainant and showing that no usurious scheme was involved. Finally, the bald assertion is offered on behalf of Fioretti that prejudice resulted from the fact that he did not testify, despite having a clean record, because the jury would have been prejudiced thereby against Caruso, who did not testify because of his criminal record. Unless the courts are willing to establish a per se rule that joint representation is improper where one of several defendants has a criminal record and the others do not, this claim is also without merit. No indication is given that had Fioretti taken the stand, his testimony would have been damaging to Caruso. Furthermore, counsel could certainly have sought an instruction to the jury that Caruso’s failure to testify could not be held against him. Finally, it is pure speculation on the record as to why Fioretti, a strong-arm man in a loan shark operation and certainly subject to a scathing cross-examination, did not testify. Under these circumstances, the judgments should be affirmed.