| People v Pleasant |
| 2017 NY Slip Op 00490 [146 AD3d 985] |
| January 25, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Pleasant, Appellant. |
Del Atwell, East Hampton, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (RaffaelinaGianfrancesco and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered October 21, 2014, convicting him of robbery in the first degree(four counts), grand larceny in the fourth degree (two counts), petit larceny (two counts),criminal possession of stolen property in the fifth degree, resisting arrest, recklessendangerment in the second degree, speeding, reckless driving, and unlawful fleeing of apolice officer in a motor vehicle in the third degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant was convicted of robbery in the first degree and other crimes upon,among other evidence, eyewitness testimony establishing that he and two otherindividuals robbed the owner of a car wash at gunpoint. The defendant was apprehendedafter leading the police on a high-speed car chase and subsequent chase on foot. Theguns used during the robbery and some of the proceeds of the crime were found on thedefendant's person and in the car in which the defendant and his two cohorts hadfled.
In his omnibus motion, the defendant sought, inter alia, to suppress the gunsrecovered from the getaway car. After a hearing, the County Court denied suppression.Upon conviction after trial, the defendant moved to set aside the verdict pursuant to CPL330.30 (3) on the ground of newly discovered evidence, namely that the prosecutioncommitted a Brady violation (see Brady v Maryland, 373 US 83 [1963])by failing to disclose that, pursuant to a joint investigation by the Yonkers PoliceDepartment's Internal Affairs Division and the Westchester County District Attorney'sOffice, it was discovered that Detective Christian Koch, who testified at the suppressionhearing, made material, false statements in a search warrant affidavit in an unrelated case.The County Court denied the motion, finding, inter alia, that the defendant failed toestablish that a Brady violation had occurred.
To establish a Brady violation, a defendant must show that (1) the evidence is[*2]favorable to the defendant because it is eitherexculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution;and (3) prejudice arose because the suppressed evidence was material (see Strickler vGreene, 527 US 263, 281-282 [1999]). While it is undisputed that the purportedBrady material was favorable to the defendant for the purpose of impeachingDetective Koch's testimony (seePeople v Garrett, 23 NY3d 878, 886 [2014]), the defendant failed to show thatthe People suppressed the purported Brady material. Although the People arecharged with knowledge of exculpatory information in the possession of the local police,notwithstanding the trial prosecutor's own lack of knowledge (see People vSantorelli, 95 NY2d 412, 421 [2000]; People v Wright, 86 NY2d 591, 598[1995]), " '[a] police officer's secret knowledge of his own prior illegal conductin [an] unrelated case . . . will not be imputed to the prosecution forBrady purposes where the People had no knowledge of the corrupt officer's "badacts" until after . . . trial' " (People v Garrett, 23 NY3d at887-888, quoting People v Johnson, 226 AD2d 828, 829 [1996]; see People vVasquez, 214 AD2d 93, 95 [1995]; see e.g. People v Kinney, 107 AD3d 563, 564 [2013];People v Longtin, 245 AD2d 807, 810 [1997], affd 92 NY2d 640[1998]). Here, the People did not discover Detective Koch's false statements until afterthe trial had ended.
Accordingly, the County Court properly denied the defendant's motion to set asidethe verdict pursuant to CPL 330.30 (3).
The defendant also contends that the County Court erred in denying that branch ofhis omnibus motion which was to suppress physical evidence. He argues that thesuppression hearing testimony of Detective Koch, that he saw in plain view a hand-heldmachine gun on the backseat of the vehicle that the defendant had been driving, wastailored to nullify constitutional objections. Initially, the defendant's contention isunpreserved for appellate review, as he never raised this specific contention at thesuppression hearing (see CPL 470.05 [2]; People v Taylor, 120 AD3d 519 [2014]). In any event, it iswithout merit. " 'The credibility determinations of a hearing court following asuppression hearing are accorded great deference on appeal, and will not be disturbedunless clearly unsupported by the record' " (People v Kelly, 131 AD3d 484, 485 [2015], quoting People v Hobson, 111 AD3d958, 959 [2013]). Here, there is no support for the defendant's contention thatDetective Koch's hearing testimony was incredible, patently tailored to nullifyconstitutional objections, or otherwise unworthy of belief (see generally People v Dunbar,104 AD3d 198 [2013]). Detective Koch's testimony concerning his observation ofthe machine gun in plain view was corroborated by Captain Peter Butler, who testified tohaving seen the machine gun in plain view a short time after Detective Koch'sobservation, and by photographs of the machine gun on the backseat of the vehicle.
The defendant's remaining contention is without merit. Chambers, J.P., Roman,Miller and Barros, JJ., concur.