(dissenting in part and concurring in part). I concur with the majority in its conclusion that defendant’s contentions on his direct appeal are without merit and, accordingly, there must be an affirmance. However, because I disagree with the conclusion reached by the majority that the order denying defendant’s CPL article 440 motion without a hearing should be affirmed, I respectfully dissent in that regard.
Contrary to the People’s assertions, the sworn affidavit of defendant’s trial counsel in support of the CPL article 440 motion quite clearly indicates that he undertook to and did in fact represent the prosecution’s chief witness prior to undertaking defendant’s defense. Such representation clearly raised the potential for a conflict of interest (see, People v Lombardo, 61 NY2d 97, 102). Moreover, trial counsel averred that his prior representation of the witness in question prevented him from fully cross-examining her at defendant’s trial demonstrating, prima facie, that a conflict of interest actually existed. Nonetheless, the rule is now clear that even where an actual conflict exists, there must be a demonstration that such conflict “operated” adversely to the defendant (People v Alicea, 61 NY2d 23, 30, n). Defendant here cannot make such a specific factual showing, nor can we make a determination in this regard without a postconviction hearing (see, People v Recupero, 73 *701NY2d 877, 880 [Titone, J., dissenting]). Consequently, I would remit this matter to County Court for such a hearing.
Ordered that the judgment and order are affirmed.