People v. Martin

OPINION OF THE COURT

Tom, J.

The narrow issue under review concerns the propriety of the trial court’s exercise of discretion in denying defendant’s presentence motion to withdraw his guilty plea based on recently discovered, purportedly exculpatory, information that the arresting officers were the subject of a departmental investigation involving corrupt activities.

Police Officers Dwayne Townsend and Rich Rivera testified at the suppression hearing. While responding to a complaint of a disorderly crowd, the officers saw defendant conversing with a woman in the location specified in the complaint. The officers knew this to be a drug-prone location in which weapons were often present and knew, in fact, that an undercover officer previously had been shot nearby. When defendant turned toward the officers, the officers saw the glint of metal tucked in defendant’s waistband. Defendant started to run as the police called him over. The officers gave chase, during which defendant, when pushed to the ground, extracted a stainless steel .357 magnum handgun and aimed it at Rivera’s head. After a brief struggle, defendant was disarmed and arrested. During the ride to the precinct, defendant stated that he had been trying to sell the gun to someone in the building to buy crack, and that the officers would have been “justified in shooting him and thank God [they] were veterans because if [they] were rookies he would have been shot.” None of the officers had asked the defendant any questions or conversed with him when this statement was made.

In seeking suppression, defense counsel argued the lack of reasonable suspicion for the initial stop, claiming that defendant neither had displayed a gun nor had acted aggressively toward the officers and that there were no other indications of *7criminality. In his pro se memorandum, defendant claimed essentially that he had had the right to walk, or-even run, away, and that the attempted stop precipitating his flight was not justified by the officers’ fears for their safety. The motion court found the initial stop and subsequent pursuit to have been unjustified, and that based upon defendant’s conduct the officers had only a common-law right of inquiry. However, the court found defendant’s act of extracting and aiming the handgun at Officer Rivera to attenuate the illegality and to provide a viable predicate for defendant’s arrest. The court also found the defendant’s statement to have been spontaneous and voluntary.

Defendant entered a plea arrangement with the District Attorney. Prior to the plea proceeding, defendant had admitted at a parole revocation hearing that he had possessed the gun.

At the plea proceeding, defendant allocated to the basic facts alleged in the information. Defendant stated in open court that “I never denied possessing the weapon, your honor.” He also acknowledged waiver of his right to go to trial, waived his right to move to dismiss, waived his right to appeal denial of pretrial motions to dismiss or suppress and acknowledged that he would not be able to withdraw his plea of guilty. The court then accepted defendant’s plea.

Defendant subsequently moved to withdraw his guilty plea and reopen the Mapp hearing based on newly discovered evidence, consisting of a newspaper article that stated that the arresting officers were targets of a corruption probe in their Bronx precinct. Apparently, around the time of the plea proceeding, Officers Rivera and Townsend were the subject of a Police Department investigation into police corruption in their precinct. After Townsend was caught taking money from a car utilized in a sting operation, he was placed on desk duty, and eventually he was indicted. In response to the Brady claim, the trial prosecutor specifically denied any personal knowledge of the corruption probe, and affirmed that as of the current date, the District Attorney’s office was unaware of any misconduct by the officers. The prosecutor further stated that at most, at some time prior to the plea, the District Attorney’s office received an unsubstantiated rumor, stated by another officer, that Rivera was “up to his old tricks.” The motion court denied defendant’s motion.

Defendant was convicted, pursuant to his guilty plea, of criminal possession of a weapon in the third degree. At the sentencing proceeding, he was adjudicated a persistent felony offender *8and received the promised sentence of six years to life in lieu of a potential sentence of 25 years to life. Prior to defendant’s sentencing, the officers had been indicted for perjury and larceny-related offenses arising out of shakedowns and thefts from drug dealers.

This appeal brings up for review denial, after a hearing, of defendant’s motion to suppress physical evidence and statements, as well as denial of his motion to vacate his plea and to reopen the hearing.

Initially, a decision to vacate a plea rests in the sound discretion of the motion court, subject only to an abuse-of-discretion standard, determined on a case-by-case basis (People v Fiumefreddo, 82 NY2d 536, 543; People v Gonzalez, 185 AD2d 159, lv denied 80 NY2d 904; People v Patrick, 163 AD2d 84, lv denied 76 NY2d 895). It is well settled that a guilty plea will be upheld if it was entered knowingly, voluntarily and with an understanding of the consequences thereof (North Carolina v Alford, 400 US 25; People v Moissett, 76 NY2d 909, 910-911), especially when the defendant makes a complete factual allocution in the presence of counsel and after the court apprised the defendant of the consequences of his plea (People v Thompson, 174 AD2d 702, lv denied 79 NY2d 833), reflecting, we have noted, the judicial interest in conferring finality on plea negotiations (People v Patrick, supra).

A prosecutor’s inadvertent or negligent failure to disclose exculpatory material in his control (Giglio v United States, 405 US 150, 153-154; Brady v Maryland, 373 US 83, 87; People v Savvides, 1 NY2d 554, 556) has long been seen as conflicting with “considerations of elemental fairness * * * and * * * professional responsibility” (People v Simmons, 36 NY2d 126, 131), which may deny the defendant due process when the nondisclosure of even unrequested exculpatory evidence is “highly material” to the defense (supra, at 132). Although the obligation is termed an “ongoing” one, there is a countervailing judicial interest in the finality achieved by a lawful plea. Our concern, upon which the dissent principally relies, is that a plea might not be knowing and intelligent under circumstances where information pointing to the defendant’s innocence is in the possession of the prosecutor, but is not disclosed to the defendant.

Defendant’s appellate position effectively asks us to construct a rule of law that preplea Brady violations, not known to a defendant at the time of the plea, require per se vacatur of the plea. However, that result would be contrary to prevailing *9authority. Rather, vacatur will not result from a later-raised Brady violation when the information purportedly undisclosed goes to the issue of factual guilt (People v Day, 150 AD2d 595, 600, lv denied 74 NY2d 807) established here in the factual allocution. Postconviction Brady claims usually are denied unless the putatively exculpatory information was “highly material to the defense” (People v Simmons, 36 NY2d 126, 132), thus depriving the defendant of an opportunity to cross-examine a witness on a trial issue, and depriving the defendant of due process. The better policy is to determine vacatur on Brady grounds case by case.

Here, three factors should be considered in evaluating whether there was a Brady violation arising from failure to disclose the departmental investigation: was the information truly exculpatory; was it in the People’s control; and, if so, how should a reviewing court balance the defendant’s right to cross-examine an adverse witness regarding evidence material to the issue of guilt or innocence against a countervailing public interest (see, People v Ortiz, 127 AD2d 305), such as the confidentiality of the investigation.

For the first inquiry, the exculpatory value of the undisclosed information has been equated with materiality, in that if disclosed, it would have materially affected a defendant’s decision to plead guilty rather than to proceed to trial (People v Benard, 163 Misc 2d 176; cf., People v Wright, 86 NY2d 591), a criterion that we find to be useful in this case. Even when undisclosed information might have had a bearing on a defendant’s tactical decision whether to forgo trial, if it is nonevidentiary, nondisclosure does not deprive the defendant of due process (People v Jones, 44 NY2d 76, cert denied 439 US 846 [prosecutor failed to disclose at time of plea that victim had died; not a Brady issue]). Since a departmental investigation into the arresting officer’s alleged venality bore no direct relation to the question whether that officer saw defendant display a gun (cf., People v Curry, 164 Misc 2d 969; People v Marzed, 161 Misc 2d 309), we cannot see how disclosure in this case would have reasonably affected the plea process (accord, People v Benard, supra; compare with, People v Marzed, supra). Nor would the mere general impeachment value of the evidence require vacatur when the officers were not the sole source of the evidence establishing defendant’s guilt (cf, People v Marzed, supra).

An analysis of the facts in this case reveals that the nature of the newly discovered information bears no sufficient nexus *10to defendant or to the charged offense or, for that matter, to the officers’ testimony, to constitute exculpatory material in a Brady sense. The critical fact upon which we focus is that defendant was stopped and subsequently arrested for display of a handgun. Insofar as is relevant to this appeal, defendant did not allege that he had been “shaken down” by the arresting officers, or that he had even possessed cash or drugs that might have drawn the attentions of larcenous rogue officers. Rather, the stop was happenstance but routine, and the only issue regarding the officers’ credibility was whether, when giving chase, they had seen defendant display a gun. Notably, the officers were not being investigated for having planted a gun on a suspect to justify an arrest. The undisclosed information goes only to the officers’ general credibility in a manner connected to the defendant’s factual guilt only in the most tangential manner. Moreover, these officers’ testimony was not the only evidence establishing defendant’s possession of a handgun. Defendant’s own admissions of guilt during the different stages of the criminal proceeding would be unaffected in their evidentiary value by impeachment of the officers on a collateral matter. The factual allocution of the plea proceeding accords with the voluntary statement defendant provided upon his arrest as well as his admission in open court and during his parole revocation hearing that he had, in fact, possessed the gun.

The dissent characterizes defendant’s voluntary admission at the preplea parole revocation hearing as being “completely derived” from the search. We would characterize the issue differently. Defendant’s voluntary admissions, before a separate tribunal utilizing different standards of proof (People ex rel. Singletary v Dalsheim, 84 AD2d 553 [2d Dept 1981], lv denied 55 NY2d 603 [parole revocation unaffected by acquittal in judicial proceeding]; see also, People v Powell, 209 AD2d 645 [2d Dept 1994], lv denied 85 NY2d 865 [probation revocation relies on standards different from prosecution]), were not derived from, but exist in addition to, the officers’ testimony, despite the common circumstance giving rise to both bodies of evidence. The voluntariness of defendant’s statement—so far unchallenged—at the parole revocation hearing is not vitiated by the nature of the seizure. The rules and policy considerations for the different proceedings are different. Hence, defendant’s admission thereat is independent of any claim concerning the credibility of the officers raised in connection with the Mapp hearing. The conclusion, then, is compelled that defendant’s unchallenged admission at the parole revocation proceeding is *11inculpatory evidence for purposes of the criminal proceeding in addition to the officers’ testimony, and that the value of the admission would remain unaffected by a general impeachment of the officers’ credibility by the putative Brady material in this case.

Defendant also argues his innocence on appeal, but bare assertions of innocence are an insufficient basis to vacate a plea (People v Carreras, 209 AD2d 350) especially when the defendant fails to retract inculpatory admissions (People v Fiumefreddo, 82 NY2d 536, supra).

People v Wright (86 NY2d 591, supra), relied on by the dissent, does not require a different result. In Wright, the issue presented was whether the People’s failure to disclose to defendant that the complainant in an assault case was a police informant constituted a Brady violation. The complainant claimed that the female defendant had assaulted him with a knife in defendant’s apartment, while defendant asserted that she stabbed complainaint because she feared that she was about to be raped. The outcome of the case turned on which person provided accurate information about the sequence and location of events. Responding police officers, initially recording a statement lending support to the defendant’s claims, gave different testimony at trial now favoring the complainant. If the defendant had known of the relationship between the complainant and the Police Department, she could have sought to provide a motive for the discrepancy. Under those circumstances, given the likelihood of police bias in favor of a registered informant, and the peculiar nature of the testimony, pretrial disclosure of the complainant’s close relationship with the Police Department took on exculpatory dimensions. That situation clearly is distinguishable from the instant case.

Nor do we read People v Baxley (84 NY2d 208) as broadly as does the dissent to require vacatur. Although Baxley in general alludes to the exculpatory potential of information impeaching a prosecution witness, the specific context of that ruling qualifies the general principle and does not compel vacatur in this case. In Baxley, the defendant was tried for a robbery murder on information supplied by several of his acquaintances. One acquaintance eventually recanted and consequently did not testify at trial; the recantation was not exculpatory. However, when this person informed the prosecutor prior to trial that police had induced his false statement as well as that of a trial witness by promises of leniency, Brady was triggered. This information, by which the trial witness could have been specifi*12cally impeached on a crucial matter going to guilt or innocence, should have been disclosed. In the present case, any impeachment value of the subject information still remains collateral to the trial issues.

Regarding the inquiry into whether the District Attorney controlled the information about the officers’ misconduct, it was not generated by the District Attorney’s office, but by the Police Department in an investigation unrelated to the defendant’s arrest. Contrary to the dissent, we find no reason in the record to conclude that the Police Department had conveyed to the prosecutor the target or results of an internal investigation prior to the time of the plea. During the relevant time period, knowledge of the internal investigation apparently was cloistered in the Department’s Internal Affairs Bureau. The initial investigation had been conducted undercover, during a time period that correlates with the time of the plea proceeding. Its results, in view of the ongoing nature of the probe, were not publicly disseminated, notwithstanding a leak to the press after the plea but before the sentence. The prosecutor’s affirmation, which remains uncontroverted in any substantive manner, attests that the District Attorney’s office had not been apprised of the departmental investigation until such time as the matter appeared before the Grand Jury. Hence, the District Attorney did not possess the information which defendant contends should have been disclosed prior to his plea (see, People v Benard, supra; People v Chapman, Sup Ct, NY County 1995, index No. 13641/92).

Although under compelling circumstances, information possessed by another agency may be imputed to an unknowing prosecutor (see, e.g., People v Wright, supra), we do not find a sound basis in this case to impute possession of the information to the District Attorney (People v Chapman, supra; cf, People v Curry, supra). Brady’s affirmative obligations do not, carte blanche, extend to require prosecutorial inquiry of other law enforcement agencies into any and all information about a police officer which “may or may not prove to be exculpatory” (People v Coleman, 75 Misc 2d 1090, 1095). In Wright, the inquiry would have been whether the complainant was a person known to the police; the event triggering a need for further inquiry by the prosecutor would have been the discrepancy in police statements, information available to the prosecutor. In the present case, the off-hand ambiguous remark that a prosecutor might have heard that Officer Rivera was “up to his old tricks,” which, in any event, constitutes only hearsay (see, People v *13Hentley, 155 AD2d 392, lv denied 75 NY2d 919), has no persuasive value to the contrary. The logic of the broad responsibilities that the dissent would impose on prosecutors would require constant mini-investigations of testifying officers, often entailing inquiry into confidential departmental files in order to immunize convictions from reversal on serendipitous Brady grounds.

Finally, even if the information had been requested by the prosecutor for subsequent disclosure to the defendant, it is not clear that it would have been provided by the Police Department. The record indicates that, prior to the plea, this was an internal, undercover and ongoing departmental probe of a precinct, which ensnared these officers among others. It was unrelated to the defendant’s arrest and, pending the filing of charges, essentially of a confidential nature (see, People v Coleman, 75 Misc 2d 1090, 1092, supra [defendant sought to subpoena police personnel records regarding arresting officer on basis that possible investigations were relevant to the officer’s credibility; not relevant to charges; at best, defendant was merely “foraging for evidence”]; accord, People v Lugo, 93 Misc 2d 195; People v Norman, 76 Misc 2d 644; but see, People v Sumpter, 75 Misc 2d 55).

Since we conclude that no Brady material was in issue in this case, we need not resolve the issue of whether defendant’s guilty plea waived a subsequent claim of a Brady violation. However, we decline to adopt a per se rule and would prefer to treat each case ad hoc, and we would scrutinize any claims of waiver as to genuine knowledgeability and voluntariness.

We have considered defendant’s remaining contentions and find them to be meritless.

Accordingly, the judgment of the Supreme Court, Bronx County (Irene Duffy, J.), rendered June 9, 1995, which convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentenced him, as a persistent felony offender, to a term of six years to life, should be affirmed.