(dissenting). I respectfully disagree with the majority opinion and would reverse the conviction and remand the matter for a new trial based both on the conflict of interest and the improper admission of identification testimony by the police officers.
Defendant was convicted of robbing the driver of a livery cab at gunpoint on December 29, 2004. He voluntarily came to the police station on the next day, and was identified by the livery cab driver in a photo array on December 31st and in a lineup conducted on January 19, 2005. Immediately prior to opening *251statements, defense counsel alerted the court that he had just learned that his firm (the Legal Aid Society) had another client, DeJesus, who may have had a connection to the case. Counsel reported that the prosecution had just informed him that the other Legal Aid client had been investigated by the police in connection with this robbery. Counsel also reported that he had learned, through a privileged communication, that this other client had “some connection” with another man, Elvis Montero, whose latent fingerprint had been recovered from the cab where the robbery occurred. The cab driver had failed, however, to identify Montero.
The existence of and information about the latent fingerprint was also disclosed to defense counsel just prior to trial. Defense counsel acknowledged that this raised the possibility of a conflict of interest, but stated that “[flor evidentiary reasons and for just reasons related to common sense, we don’t see a need to go into [the other client] since there is no physical evidence connecting him to this crime,” concluding that this would avert the possible conflict. Defense counsel, who had been precluded from examining the other client’s file, proceeded to try the case without reference to the other client.
The record does not disclose whether the conflict was explained to defendant, who suffered from and was on medication for mental illnesses. On appeal, defendant contends that he was denied effective assistance of counsel due to his trial counsel’s conflict of interest, which adversely affected the conduct of his defense.
A defendant is entitled to “assistance of counsel that is conflict-free and single[-]mindedly devoted to the client’s best interests. That right is impaired when, absent a defendant’s informed consent, defense counsel represents interests which are actually or potentially in conflict with those of the defendant” (People v Berroa, 99 NY2d 134, 139 [2002] [internal quotation marks and citations omitted]). To prevail on a conflict claim based on successive representation, “a defendant does not have to establish that the conflict affected the outcome of the proceedings; a defendant must only show that the conflict operated on the defense” (People v Konstantinides, 14 NY3d 1, 14 [2009]; see also People v Ortiz, 76 NY2d 652 [1990]).
I believe that defendant’s counsel was unable to avoid the potential conflict of interest simply by agreeing to not “go into” the other Legal Aid client at trial. Indeed, counsel’s decision to overlook the evidence he had already obtained showing some *252connection between the man investigated by the police and the man whose latent fingerprints were found in the livery cab, and to forgo any further pursuit of evidence of a connection between the two men, was itself the inevitable product of the conflict of interest he faced, which clearly affected the conduct of the defense. Rather than proceeding to trial with the understanding that there would be no reference to this other suspect, a non-conflicted attorney would have, at least, sought a recess of the trial to further investigate this suspect for the purpose of building a third-party culpability defense. Pursuant to a defense motion, a CPL article 330 hearing was conducted to determine whether evidence that subsequently came to light concerning the other client was a basis to reverse the conviction, but the trial court found that the allegedly new evidence, which in fact related to the other client, would not be helpful to defendant.
In addition, I believe that the admission of Detectives Treacy’s and O’Neil’s testimony identifying defendant based on the images from a digital camera taken from the cab was error. Although Detective Treacy’s identification and arrest of defendant, whom he knew because the latter had been the victim of another crime, was based on the images, I reject the argument that the detectives’ testimony merely completed the narrative as to how defendant became a suspect. The detectives not only testified as to their identification based on the camera images, some of which were lost, but Detective Treacy also testified that between defendant’s arrest and trial he “got a lot heavier.” The jury viewed the same digital videotapes that the detectives had. Even though the court instructed the jurors that it was for them to make the ultimate factual determination as to the identity of the person on the tapes, I find the admission of this testimony to be improper bolstering. While such testimony is “commonly allowed in cases where the defendant has changed his or her appearance since being photographed or taped, and the witness knew the defendant before that change of appearance” (People v Coleman, 78 AD3d 457, 458 [2010], lv denied 16 NY3d 829 [2011]), there is no such claim here. The prosecutor made no claim for admission based on weight gain when defendant objected to admission of the testimony. Rather, she argued that Detective Treacy’s testimony and the prior identification evidence by the other officer were needed to explain police conduct in arresting defendant. As we noted in People v Coleman, admission of the detective’s identification testimony was improper bolstering. Since the main issue in this *253case is identification, I find admission of the testimony to be reversible error.
While defendant argues that the photo array followed by a lineup was unduly suggestive, in part based on differences in age and skin tone, that issue would not be a basis for reversal here. The use of a photo array followed by a lineup in which the defendant was the only individual present in both procedures was criticized in the recent decision of the New Jersey Supreme Court, State v Henderson (208 NJ 208, 255-256, 27 A3d 872, 900-901 [2011]), dealing with identification evidence; however, this court has never rejected the procedure.
Accordingly, I would find that the conflict of interest adversely affected the conduct of the defense (see e.g. People v DiPippo, 82 AD3d 786 [2011], lv denied 17 NY3d 903 [2011]), and the identification testimony of Detective Treacy was improperly admitted. For these reasons, I would reverse the conviction and remand for a new trial.
Tom, J.E, Saxe and Román, JJ., concur with DeGrasse, J.; Freedman, J., dissents in a separate opinion.
Judgment, Supreme Court, Bronx County, rendered August 5, 2008, affirmed.