| People v Serrano |
| 2012 NY Slip Op 07150 [99 AD3d 1105] |
| October 25, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AlbertSerrano, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered June 22, 2009, convicting defendant upon his plea of guilty of the crimesof criminal sale of a controlled substance in the third degree and attempted criminal possessionof a weapon in the second degree.
Defendant was charged in an indictment with numerous crimes after he sold drugs to aconfidential police informant (hereinafter the CI) on three occasions in 2008. Defendantrequested, among other things, all Brady material, copies of tape-recorded conversationsbetween defendant and the CI, and a copy of the search warrant and supporting affidavits. CountyCourt directed that the documents be redacted to protect the CI's identity. Upon receiving thetape-recorded conversations the day before trial was scheduled, it was discovered that defensecounsel's office represented the CI and, therefore, that counsel had a conflict of interest.Defendant informed County Court that he could not afford to retain new counsel, and the courtthen repeatedly offered to appoint new counsel and adjourn the case for trial. Nevertheless,defendant elected to accept the People's offer—which predated the indictment and, thus,had been negotiated prior to the conflict coming to light—to plead guilty to criminal saleof a controlled substance in the third degree and attempted criminal possession of a weapon inthe second degree. He was sentenced, as a second felony offender, to seven years in prison to be[*2]followed by five years of postrelease supervision. Defendantappeals, and we now affirm.
Defendant argues that his plea was rendered involuntary by the People's withholding ofBrady material until the eve of trial. Specifically, he maintains that the failure to timelydisclose the CI's identity forced him to choose between entering a guilty plea or being deprived ofhis right to conflict-free counsel of his choice.[FN*]We disagree.
A Brady violation occurs when "evidence [that] is favorable to the defendant becauseit is either exculpatory or impeaching in nature . . . was suppressed by theprosecution[,] and . . . prejudice arose because the suppressed evidence wasmaterial" (People v Fuentes, 12NY3d 259, 263 [2009]; see Peoplev Burroughs, 64 AD3d 894, 898 [2009], lv denied 13 NY3d 794 [2009]). Evenwith untimely disclosure of such evidence, however, no prejudice arises and reversal is notrequired when the defendant has been given "a meaningful opportunity" to use the evidence(People v Cortijo, 70 NY2d 868, 870 [1987]; see People v Burroughs, 64 AD3dat 898; People v Williams, 50 AD3d1177, 1179 [2008]). Assuming without deciding that the CI's name and criminal historyconstituted Brady material, County Court afforded defendant a meaningful opportunity touse the evidence. Specifically, the court repeatedly advised that, at defendant's request, it wouldgrant an adjournment and appoint new counsel for trial. Under these circumstances, defendanthas failed to demonstrate that the alleged Brady violation, in itself, requires reversal(see People v Cortijo, 70 NY2d at 870; People v Burroughs, 64 AD3d at 898;People v Muniz, 215 AD2d 881, 883-884 [1995]).
Furthermore, the record does not support defendant's contention that he was denied the rightto conflict-free counsel of his choice or that his plea was involuntary. Defendant's submissions onappeal flatly contradict his assertions that his counsel was aware of the conflict from thebeginning of the proceedings. While he now argues that he was denied the opportunity to retaincounsel on his own and proceed to trial, the transcript of the plea proceedings demonstrates thatCounty Court offered to adjourn the matter for trial, as noted above. Moreover, it was in responseto defendant's statements that he could not afford to retain an attorney and did not trust the PublicDefender's office that the court offered to appoint counsel with no connection to the PublicDefender's office. Defendant stated that he understood the court's instructions in that regard andindicated that "[n]o one can talk me out of" pleading guilty. Finally, to the extent that defendantnow asserts "a conflict-based claim of ineffective assistance of counsel," he has not met hisburden of demonstrating " 'that the conduct of his defense was in fact affected by the operation ofthe conflict of interest, or that the conflict operated on the representation' " (People v Konstantinides, 14 NY3d1, 10 [2009], quoting People v Ortiz, 76 NY2d 652, 657 [1990]; see People vAbar, 99 NY2d 406, 410-411 [2003]; People v Herringshaw, 83 AD3d at 1134-1135;see also People v Harris, 99 NY2d 202, 209-212 [2002]).[*3]
Spain, Malone Jr., Kavanagh and Egan Jr., JJ., concur.Ordered that the judgment is affirmed.
Footnote *: Defendant's challenges to thevoluntariness of his plea survive his waiver of the right to appeal (see People v Seaberg,74 NY2d 1, 10 [1989]; People vHerringshaw, 83 AD3d 1133, 1134 [2011]). Moreover, while the People assert thatcertain of defendant's arguments are also unpreserved because he did not move to vacate hisjudgment of conviction or withdraw his guilty plea, we note that defendant, in his pro se brief,indicates that he advanced these arguments in his separate CPL 440.10 motion to vacate thejudgment.