Because, in my view, County Court committed reversible error in disqualifying defendant’s counsel, I respectfully dissent. The court disqualified counsel based upon its finding that a potential conflict of interest—which was more theoretical than real—would, in its opinion, infringe upon defendant’s right to the effective assistance of trial counsel.
It is hornbook law that, the right to counsel being a fundamental one, courts must “carefully scrutinize[ ]” the “judicial restriction or governmental intrusion” upon its exercise (People v Tineo, 64 NY2d 531, 536 [1985]). While a trial court should be accorded “substantial latitude” in refusing a defendant’s waiver of even a potential conflict (Wheat v United States, 486 US 153, 163 [1988]), it is evident from this record that any potential conflict (which never came to fruition) was simply not serious, given the common interest shared by defendant, his girlfriend and his father.
When the court questioned defendant about his waiver, he remained steadfast that he wished to waive any potential conflict. The court then appointed an experienced criminal lawyer as independent counsel to meet with defendant to explain the ramifications of this choice. She met with defendant twice and sent him a letter explaining his rights, including the risks and benefits of waiving the conflict. That attorney reported to the court that it was her view that defendant understood the risks of waiving the conflict and still wished to do so. Notwithstanding these facts, County Court disqualified counsel. What is remarkable here is that no one seems to have had an objection to defendant retaining his counsel other than his adversary and the court.
An element of a defendant’s federal and state constitutional right to counsel (US Const 6th Amend; NY Const, art I, § 6) “is the right of [the] defendant who does not require appointed counsel to choose who will represent him” (United States v *333Gonzalez-Lopez, 548 US 140, 144 [2006]; see People v Arroyave, 49 NY2d 264, 270 [1980]). When a defendant is wrongly deprived of that right, the deprivation is “complete” at the time the defendant is erroneously prohibited from being represented by the counsel of his choice, and such error is considered a “structural” one not subject to harmless error analysis (Gonzalez-Lopez at 148, 150).
In support of its holding here, the majority relies on People v Ortiz (76 NY2d 652 [1990]) and People v Gomberg (38 NY2d 307 [1975]), both of which are “multiple representation” cases. The former case involved a garden-variety drug trial where defense counsel’s loyalties were divided between the defendant he was representing and a testifying witness whose interests diverged from those of the defendant; the latter case involved a situation where the same attorney represented three defendants who were on trial for arson, and the defense asserted by one of the defendants allegedly shifted the blame to the other defendants. Of course, as the United States Supreme Court has recognized, “multiple representation of criminal defendants engenders special dangers of which a court must be aware” (Wheat, 486 US at 159). But that is not the situation we are presented with here, where neither defendant’s father nor his girlfriend was facing a criminal charge, nor were they targets of the investigation.
The Supreme Court has recognized “a presumption in favor of [a defendant’s] counsel of choice” which may be overcome by either a showing of actual conflict or “a serious potential for conflict” (Wheat, 486 US at 164). It is undisputed in this instance that, at most, there was a potential conflict because defendant’s interests might have placed defense counsel under inconsistent duties in the future had defendant’s father and girlfriend been called as witnesses at trial (United States v Perez, 325 F3d 115, 125 [2d Cir 2003], citing United States v Kliti, 156 F3d 150, 153 n 3 [2d Cir 1998]). But such a conflict, waivable so long as the court is satisfied that it is knowing and intelligent (Perez, 325 F3d at 125), could hardly be considered serious, and clearly not enough to overcome the presumption in favor of affording defendant his constitutional right to counsel of his own choosing.
The majority and the People latch onto the premise that, at the time of the disqualification motion, it was the defense’s theory of the case that defendant was not the operator of the motorcycle, and that the “damaging” testimony by defendant’s father and girlfriend before the grand jury all but ensured that *334they would be called as witnesses. However, the defense advised the court that, without discovery, it had yet to determine its trial strategy. Moreover, a simple reading of the grand jury testimony of defendant’s father and girlfriend, who were not called to testify before the second grand jury,* indicates that their testimony was not substantially different from the statement defendant made to the police just three days after the crash. If anything, the testimony of defendant’s father and girlfriend was no more damaging than defendant’s own statement to the police which, upon a fair reading, rendered it unlikely that defendant would be pursuing a “mistaken identity” defense as the court surmised in its decision and order disqualifying defense counsel.
In matters where there is an apparent conflict, the trial courts have a duty to protect a defendant’s right to the effective assistance of counsel without concomitantly “arbitrarily interfering] with the attorney-client relationship” (Gomberg, 38 NY2d at 313). Where, as here, the potential conflict is theoretical at best because the witnesses are united with the defendant and the defendant has been adequately apprised of the risks of waiving any potential conflict and agrees to do so, the defendant should not be deprived of his fundamental right to counsel of his own choosing. Absent any institutional concerns, such as where the attorney’s representation would jeopardize the integrity of the judicial proceedings, courts should not “assume too paternalistic an attitude in protecting the defendant from himself” (Perez, 325 F3d at 126, quoting United States v Curcio, 694 F2d 14, 25 [2d Cir 1982]).
There being no indication that allowing disqualified counsel to represent defendant in these circumstances would jeopardize the integrity of the proceedings, I would reverse the order of the Appellate Division and grant defendant a new trial with counsel of his choosing.
Judges Ciparick, Graffeo, Read and Jones concur with Chief Judge Lippman; Judge Pigott dissents and votes to reverse in a separate opinion in which Judge Smith concurs.
Order affirmed.
The second grand jury proceeding occurred in September 2006 after disqualification of defense counsel, the indictment from the first grand jury proceeding having been dismissed due to the alleged conflict.