During defendant’s trial, one of
his lawyers was accused in open court of joining with defendant in attempts to suborn peijury and to bribe a potential witness. Under a number of federal cases, this accusation, true or false, would be enough to create a per se, unwaivable, conflict requiring disqualification of the lawyer or, failing that, reversal of defendant’s conviction (see e.g. United States v Jones, 381 F3d 114 [2d Cir 2004]; United States v Fulton, 5 F3d 605, 609-610 [2d Cir 1993]). I agree with the majority in rejecting this rule. In other words, I would hold that the conflict could be waived, or that, even if not waived, the failure to disqualify the lawyer would not justify reversal if it had no effect on defendant’s representation.
But here, the trial court never asked defendant whether he *16would waive the conflict, much less conducted the hearing necessary to assure that any waiver was knowing and intelligent (see People v Gomberg, 38 NY2d 307 [1975]). Nor did the trial court inquire at all, so far as the record shows, into the prosecutor’s allegations or their possible impact on the trial. The prosecutor’s motion to disqualify was never ruled on, and the conflicted lawyer continued to participate, in a significant way, in defendant’s defense. Under the circumstances, I do not see how we can affirm defendant’s conviction without at least requiring a post-trial hearing into whether the conflict operated on the representation.
Our recent decision in People v Ennis (11 NY3d 403, 410 [2008]) explains the framework we use to decide issues like this:
“A claim that defense counsel’s representation was compromised by a conflict of interest requires two inquiries. First, the court must examine the nature of the relationship or circumstances that are alleged to establish a conflict. Second, if a conflict is identified, the court must determine whether the conflict operated on the representation, i.e., whether the relationship or circumstances bore a substantial relation to the conduct of the defense.” (Internal quotation marks and citations omitted.)
When a lawyer is accused (rightly or wrongly) of criminal conduct related to the subject matter of the case against his client, the first Ennis test is met—the “relationship or circumstances” establish a conflict. The reasons are explained in the federal cases (see e.g. United States v Jones, 381 F3d at 120): Any lawyer, guilty or innocent, in the situation faced by defendant’s lawyer here would recognize that his personal interests were very much at stake, and would feel a strong need to protect himself—a goal that might not be consistent with protecting his client. Thus, it cannot be said here, as we said in Ennis, that “[m]any (perhaps most) attorneys would not have perceived any conflict” (11 NY3d at 411). There are few, if any, lawyers who could easily disregard the possibility of disbarment or criminal proceedings against them personally, even if their client’s interests demanded it.
The second step in the Ennis analysis is to determine whether the conflict “operated on the representation.” The trial court here never took this step. As a result of this error, the record before us is silent as to whether there are witnesses who might have been called, questions that might have been asked, or *17strategies that might have been pursued if defendant’s lawyer’s personal interests had not been threatened.
Specifically, we have no way of knowing whether defense counsel ever really considered calling the “woman named Jennifer” (see majority op at 6) as a witness; it may well be that Jennifer, if she existed, could have given no testimony (other than testimony known to be perjured) that would have helped defendant, but nothing in this record proves that. Also, while L.T., the source of the prosecutor’s information about defendant’s lawyer, did not testify, her name came up both in the direct examination of defendant (conducted by the lawyer accused of wrongdoing) and on the prosecutor’s cross-examination. The record does not show whether the lawyer would have handled this subject differently if L.T. had not been his accuser. And there is nothing to show whether an offer to provide information to the People as part of a plea or sentence bargain was a realistic option for defendant. If it was, it would surely have been hard for the lawyer—knowing it at least possible that defendant would provide information about the lawyer himself—to give impartial advice on the subject.
Astonishingly, the majority makes the absence from the record of necessary information—the consequence of the trial court’s failure to conduct; stage two of the inquiry Ennis requires—a basis for affirming defendant’s conviction. The silence of the record, it says, is “the fault of defendant, whose burden it is to establish that the conflict operated on the representation” (majority op at 12-13 n 4). The flaw in this assertion seems almost too obvious for statement: How was defendant supposed to meet that burden while represented by the very counsel who was subject to the conflict? The majority seems to suggest three possible answers to this question, all completely unsatisfactory.
First, the majority notes (majority op at 11-12) that the conflicted lawyer sat in the second chair at the trial, and that the lead lawyer had no apparent conflict. Thus, the majority implies, the silence of the record is “the fault of defendant” because his lead counsel did not attack his own co-counsel’s fitness to continue in the case. But no authority supports, and simple common sense contradicts, the idea that defendant may be blamed for his lawyer’s failure to attack his colleague.
Secondly, the majority surmises that there “must have” been an off-the-record conference, in which the concerns raised by *18the prosecutor’s application to disqualify were resolved (majority op at 8). But even in off-the-record discussions, defendant was represented by the same conflicted counsel—and in any event, can it be doubted that, where the record shows an apparent impairment of a defendant’s right to conflict-free representation, the problem must be resolved on the record, not off it?
Thirdly, the majority suggests that defendant’s remedy was a post-trial motion under CPL article 440 (presumably to be made after defendant obtained new counsel) (majority op at 12). The majority cites no authority holding that a post-trial motion is necessary to obtain relief for an error apparent on the face of the trial record—no doubt because the law is to the contrary. We held in People v Crump (53 NY2d 824, 825 [1981]):
“[I]nasmuch as both the trial court’s failure to make any inquiry and the conflict of interest between defendant and Barclay are discernible from the record, the question of whether defendant was deprived of the effective assistance of counsel is appropriate for resolution on defendant’s direct appeal from his conviction. While it is true that claims of ineffective assistance of counsel often involve factual questions which can best be addressed in a collateral or post-conviction proceeding brought under CPL 440.10 (see People v Brown, 45 NY2d 852, 854), where, as here, the record discloses that reversible error has occurred below, defendant should not be relegated to such collateral proceedings to obtain relief.”
Where a defendant claims that his lawyer was conflicted, but the record contains no evidence of a conflict, that evidence must be supplied in a post-trial motion (see People v Mora, 290 AD2d 373 [1st Dept 2002]; People v Frias, 250 AD2d 495 [1st Dept 1998]). But here, the record shows both the conflict and an error by the trial court in dealing with it, as the majority essentially concedes (see majority op at 13 [to address the issue on the record “surely would have been better practice”]). For me, the only difficult issue in this case is what remedy for this error defendant is entitled to. I am prepared to hold that he is not entitled to a new trial, but only to a hearing on the issue of how, if at all, the apparent conflict affected his representation. But I find the majority’s holding that he is entitled to no remedy at all indefensible.
*19Judges Graffeo, Pigott and Jones concur with Judge Read; Judge Smith dissents in part in a separate opinion in which Chief Judge Lippman and Judge Ciparick concur.
Order affirmed.