| People v Kinney |
| 2013 NY Slip Op 04702 [107 AD3d 563] |
| June 20, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v James Kinney, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), forrespondent.
Order, Supreme Court, New York County (Patricia Nunez, J.), entered May 24,2012, which denied defendant's CPL 440.10 motion to vacate a judgment of the samecourt and Justice, rendered April 27, 2009, convicting him, upon his plea of guilty, ofcriminal sale of a controlled substance in the fourth degree, and sentencing him, as asecond felony drug offender, to a term of three years, unanimously affirmed.
The court properly denied defendant's CPL 440.10 (1) (h) motion to vacate thejudgment, made on the ground that it was obtained in violation of his right to disclosureof exculpatory evidence under Brady v Maryland (373 US 83 [1963]). More thana year after defendant's guilty plea, it was learned that a police chemist, who retested thedrugs in this case after the original testing chemist had retired, had committedmisconduct in unrelated cases. There was no Brady violation, because at the timeof defendant's conviction, the People had neither actual nor imputed possession of, oraccess to, information about misconduct by this particular chemist (see People vSantorelli, 95 NY2d 412, 421 [2000]; People v Ortega, 40 AD3d 394, 395 [1st Dept 2007], lvdenied 9 NY3d 992 [2007]; see also People v Vasquez, 214 AD2d 93,99-102 [1st Dept 1995], lv denied 88 NY2d 943 [1996]). In any event, thealleged nondisclosure could not have materially affected defendant's decision to pleadguilty (see People v Martin, 240 AD2d 5, 8-9 [1st Dept 1998], lv denied92 NY2d 856 [1998]). Timely discovery and disclosure of the retesting chemist'smisconduct would have provided defendant with little or no reason to reject a favorableplea offer and go to trial. The People would have called the retired chemist to testify,[*2]or had the drugs retested by a third chemist, or both,and the tainted chemist's involvement would have created minor issues, at most, aboutthe identity of the drugs. Concur—Mazzarelli, J.P., Renwick, Manzanet-Daniels,Gische and Clark, JJ.