| People v Fisher |
| 2014 NY Slip Op 05035 [119 AD3d 426] |
| July 3, 2014 |
| Appellate Division, First Department |
[*1]
| 1 The People of the State of New York,Respondent, v Kevin Fisher, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Samantha L.Stern of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Karinna M. Rossi of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), renderedMarch 14, 2011, convicting defendant, upon his plea of guilty, of hindering prosecutionin the second degree, and sentencing him, as a second felony offender, to a term of1� to 3 years, affirmed.
This appeal stems from defendant's 2009 indictment for hindering prosecution in thefirst degree and criminal possession of a weapon in the third degree. The hinderingprosecution count alleged that defendant "rendered criminal assistance to Clovis Rochewho had committed a class A felony, to wit, Murder in the Second Degree, knowing andbelieving that such person had engaged in conduct constituting Murder in the SecondDegree." By the same indictment, codefendant Roche was charged with murder in thesecond degree and two counts of criminal possession of a weapon in the seconddegree.
In sum and substance, the People alleged that on January 28, 2009, Rodney Lewis,and three other men, including Lewis's brother, Richard Lamar, went to Roche'sapartment to retrieve a television that belonged to Lewis's cousin. Roche did not wantLewis to take the television and a fight ensued, during which Roche shot Lewis with agun he had earlier received from defendant. After the shooting, defendant took the gun,which was never recovered, and he and Roche fled the apartment. Lewis died at thehospital a short time later.
On July 16, 2010, on the eve of trial, defendant pleaded guilty to the lesser includedoffense of hindering prosecution in the second degree, in exchange for a promisedsentence of 1� to 3 years. Notably, before pleading guilty, defendantreceived Brady material that consisted of notes from Detectives Melino andPurcell indicating that Lamar had told Melino and Purcell that he had not witnessed theshooting because he was on a different floor smoking a cigarette. In pleading guilty,defendant admitted that he "rendered criminal assistance to Clovis Roche who hadcommitted a class A felony, to wit, murder in the second degree, knowing and believingthat such person had engaged in conduct constituting murder in the second degree."
Roche proceeded to a trial at which Lamar, the victim's brother, was the prosecution'smain witness. Lamar testified that he saw Roche shoot Lewis and that he told thedetectives so when interviewed after the shooting. He denied telling the detectives that hedid not actually see [*2]the shooting. Detective Melinotestified that Lamar had told her that he did not see the shooting.
On the evening after Lamar and Melino testified, an Assistant District Attorneydiscovered handwritten notes he had taken during an interview with Lamar. The Peopledisclosed that they had unintentionally failed to turn over these notes to defendant. Thenotes consisted of a series of "blurbs" summarizing statements by Lamar during hisinterview with the prosecutor. For example the notes stated that "1 wk b/f" someone "hadbeen robbed" and that Roche "had been hit in head." The notes also said, "crack head atdoor," "guys from E. River rushed in," and that Lamar saw Roche "bleeding from."
With regard to the January 28, 2009 shooting incident that resulted in Lewis's death,the notes indicated that Lamar was "unsure," "saw punch thrown," and that when Roche"start[ed] pulling out gun," Lewis "grabbed gun." After reviewing the notes, the courtfound—and defense counsel and the prosecutor agreed—that the notesconstituted Rosario material as to Roche, but not Brady material.
Roche testified in his own behalf that he did not intend to shoot Lewis, but that heshot him by accident as the pair struggled over the gun. Even though Roche did not claimthat he had shot Lewis in self-defense, defense counsel asked the court, in the alternative,to charge the jury on self-defense, and the court did so. On or about July 27, 2010, beforedefendant's sentencing had been scheduled, the jury acquitted Roche of all felonycharges, and convicted him of criminal possession of a weapon in the fourth degree.
In August 2010, after Roche's acquittal, but prior to defendant's sentencing,defendant moved to withdraw his guilty plea pursuant to CPL 220.60 (3). He argued thatthe People's failure to provide him with the belatedly disclosed notes, which reflected theAssistant District Attorney's interview with Lamar, was a Brady violation thatundermined the voluntariness of his plea. In the alternative, defendant argued that heshould be allowed to withdraw his plea based on Roche's acquittal of the felony charges.Defendant reasoned that because the crime of hindering prosecution "require[d] that theprincipal be guilty of a felony," Roche's acquittal rendered him innocent of hinderingprosecution. The court denied defendant's motion to withdraw his plea, explaining thatthe notes did not constitute Brady material, and that Roche's acquittal ofsecond-degree murder did not present a legal impediment to defendant's guilty plea.
We find that the court properly exercised its discretion in denying defendant's motionto withdraw his guilty plea (see generally People v Frederick, 45 NY2d 520, 525[1978]). "The established rule is that a guilty plea will be upheld as valid if it was enteredvoluntarily, knowingly and intelligently" (People v Fiumefreddo, 82 NY2d 536,543 [1993]). "A defendant is not entitled to withdraw his guilty plea based on asubsequent unsupported claim of innocence, where the guilty plea was voluntarily madewith the advice of counsel following an appraisal of all the relevant factors" (People vDixon, 29 NY2d 55, 57 [1971]).
Here, the plea colloquy reveals that defendant knowingly and voluntarily admittedthe factual allegations of the crime, namely that he rendered criminal assistance to ClovisRoche while knowing and believing that Roche had engaged in conduct constitutingmurder in the second degree. At no time, during his allocution or at any other time, diddefendant make any protest of innocence.
Defendant's subsequent claim of innocence arising out of codefendant Roche'sacquittal at trial must be rejected because a person may validly plead guilty to hinderingprosecution in the [*3]first degree without knowingwhether or not the assisted person will be convicted of the underlying felony at thesubsequent trial. Indeed, as the Court of Appeals has noted, the hindering prosecutionstatute does not require proof that the assisted person was ever arrested or convicted ofthe underlying felony (see People v Chico, 90 NY2d 585, 588 [1997]).
Nor do we find any merit to defendant's allegations that the belatedly disclosed noteswould have affected his decision to plead guilty rather than proceed to trial. We rejectdefendant's argument that the previously undisclosed witness interview notes tended toexculpate Roche, and were thus exculpatory of defendant because of the requirement ofproof of the assisted person's commission of an underlying felony. On the contrary, weconclude that these notes had little or no exculpatory value, and that they were essentiallyinculpatory of Roche. Accordingly, we find that there was no Brady violation,and that in any event, the nondisclosure could not have materially affected defendant'sdecision to plead guilty (see People v Martin, 240 AD2d 5, 8-9 [1st Dept 1998],lv denied 92 NY2d 856 [1998]), notwithstanding his assertion to the contrary.Concur—Sweeny, J.P., Renwick, Freedman and Richter, JJ. Saxe, J., concurs inresult only.