| People v DeLaRosa |
| 2008 NY Slip Op 00840 [48 AD3d 1098] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rafael D.DeLaRosa, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered June13, 2005. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofrobbery in the first degree (Penal Law § 160.15 [4]). Defendant failed to move to withdrawhis plea or to vacate the judgment of conviction and thus failed to preserve for our review hischallenge to the voluntariness of his plea (see People v Aguayo, 37 AD3d 1081 [2007], lv denied 8NY3d 981 [2007]). We agree with defendant that, by pleading guilty, he did not forfeit hiscontention that the People failed to disclose exculpatory evidence prior to the entry of hisAlford plea (see generally People v Hansen, 95 NY2d 227, 230-231 [2000]). "'[T]he law . . . appears to be settled . . . [that] Brady materialmust be disclosed in time for its effective use at trial . . . or at a plea proceeding' "(People v Reese, 23 AD3d1034, 1036 [2005], lv denied 6 NY3d 779 [2006], quoting United States vCoppa, 267 F3d 132, 135 [2001] [emphasis omitted]), and it would undermineBrady's disclosure requirements if a defendant were deemed to have waived aBrady issue by entering an Alford plea without the knowledge that the Peoplepossessed exculpatory evidence. Nevertheless, we conclude that there was no Bradyviolation based on the prosecutor's failure to provide defendant with the written statement ofa witness inasmuch as it was duplicative of comments made by the witness during a 911 call thatwas recorded and disclosed to defendant before he entered his plea. "Brady does not. . . require prosecutors to supply a defendant with evidence when the defendantknew of, or should reasonably have known of, the evidence and its exculpatory nature"(People v Doshi, 93 NY2d 499, 506 [1999]; see People v LaValle, 3 NY3d 88, 110 [2004]; People v Terry, 19 AD3d 1039,1040 [2005], lv denied 5 NY3d 833 [2005]). Present—Hurlbutt, J.P., Smith,Fahey, Peradotto and Pine, JJ.