People v Potter

[*1] People v Potter 2005 NY Slip Op 51741(U) [9 Misc 3d 1122(A)] Decided on September 19, 2005 Supreme Court, New York County Ward, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 19, 2005
Supreme Court, New York County

The People of the State of New York,

against

Ricardo Potter, Defendant.



2515/99

Laura A. Ward, J.

The defendant, Ricardo Potter, was arrested on February 12, 1999, and charged with criminal possession of a controlled substance in the third degree, in violation of Penal Law ("P.L.") § 220.16 (12), criminally using drug paraphernalia in the second degree, in violation of P.L. § 220.50 (3), and resisting arrest, in violation of P.L. § 205.30. The defendant pleaded guilty to the charge of attempted criminal possession of a controlled substance in the third degree, in violation of P.L. §§ 110/220.16 on April 15, 1999. He was sentenced to five years probation on June 2, 1999. Pursuant to Criminal Procedure Law ("CPL") § 440.10, the defendant moves to vacate this plea claiming that he is innocent, and vacate the judgement claiming (i) he has discovered new evidence that goes to the credibility of his arresting officers and (ii) the People failed to disclose certain information in violation of Brady v. Maryland, 373 U.S. 83 (1963).

The defendant alleges that two detectives, Julio Vazquez and Thomas Rachko, broke down his door and beat him when he was arrested. The defendant asserts that he pleaded guilty in order to avoid a sentence of fifteen years to life in prison. The newly discovered evidence proffered by the defendant is that Detectives Vazquez and Rachko were convicted of stealing narcotics and money and selling narcotics. The detectives' convictions occurred subsequent to the defendant's plea and sentence.

The People oppose defendant's motion, treating the motion as "a motion to set aside the judgment based on newly discovered evidence and Brady violations." (People's Affirmation in Response to Defendant's Motion at Paragraph 8)

The defendant's claim to vacate

his plea because he is innocent

The record reflects that the defendant knowingly, voluntarily, and intelligently pleaded guilty to the charges. He clearly and unequivocally admitted his guilt. The defendant's belated allegation of innocence is unsubstantiated and conclusory and therefore is not a sufficient basis to grant a motion to vacate the defendant's plea. (People v. McCaskell, 206 AD2d 547, appeal denied, 84 N.Y2d 869 (1994); People v. Tinort, 5 Misc 3d 238 (Sup. Ct., NY Co., 2004))

The defendant's claim that the judgement should

be vacated based upon newly discovered evidence [*2]

C.P.L § 440.10 states, in pertinent part, that :

1. At any time after the entry of a judgement, the court in which it was entered may, upon motion of the defendant, vacate such judgement upon the ground that: . . .

(g) New evidence has been discovered since the entry of a judgement based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence. . .

The defendant does not specifically claim that had he known about the officers' convictions, he would not have pleaded guilty. The defendant implies that had he known about the officers' convictions, he would have gone to trial and used this evidence to impeach the officers' credibility.

In order to classify evidence as newly discovered, it must satisfy six criteria. The evidence must: 1) be discovered after trial, 2) not have been ascertainable prior to trial, 3) be material to an issue at trial, 4) not be cumulative, 5) not be merely impeaching or contradictory to former evidence, and 6) be of such nature that it would probably change the result if a new trial were to be granted. People v. Salemi, 309 NY 208, 215-216 (1955), cert. denied, 350 U.S. 950 (1956).

In a case with facts similar to the present case, the First Department denied a defendant's motion to vacate a judgement. In People v. Reyes, 255 AD2d 261, appeal denied, 92 NY2d 1053 (1999), the defendant was arrested in 1987, for possession of four ounces of cocaine and a loaded gun found in the car in which the defendant was a passenger. The defendant moved to suppress the cocaine and the gun as well as a statement made by him. Hearings on the defendant's motions to suppress were held. The hearing court found that the prosecution's sole witness, Police Officer Parson, was credible and held that the stop of the car was lawful and that a statement made by the defendant was not coerced. The defendant was convicted of both charges and was sentenced.

Subsequent to the defendant's conviction and sentence, Officer Parson was convicted of several crimes stemming from a 1991 incident during which he stole money from a suspected drug dealer and falsified police reports.

The defendant moved pursuant to CPL § 440.10 to vacate his judgment of conviction on the ground that Officer Parson's conviction and sentence constituted newly discovered evidence. The defendant argued that Officer Parson was the only witness at the suppression hearing, that he was a crucial witness at trial and had the evidence of the officer's conviction been available, it was likely that the outcome of the suppression hearing and trial would have been different. The defendant's motion was granted.

On appeal, the Appellate Division reversed, holding that Officer Parson's conviction did not constitute newly discovered evidence requiring that the defendant's conviction be vacated. The court stated that the evidence of Officer Parson's conviction was immaterial and irrelevant. The court reasoned that Officer Parson's conviction occurred three years after the defendant's conviction and that the defendant, while denying ownership of the drugs and gun, [*3]admitted at trial that the drugs and gun were in the car. The court stated that the illegal acts committed by Officer Parson "have no logical bearing on whether the defendant possessed drugs and a gun three years before. . . [and] [s]ince defendant admitted the prosecution's version of the facts, but merely offered an innocent explanation for them, Parson's misconduct would not have materially aided his defense." People v. Reyes, supra at p. 263. The court also noted that Officer Parson's conviction would have been admissible only to impeach the officer's credibility.

Similarly, in People v. Williams, 19 AD3d 228, 230 (2005), a police officer who testified at the defendant's trial tested positive for marijuana some time after the completion of the trial. The court found that this 'newly discovered evidence' did "not entitle defendant to a new trial because it was merely impeaching, would not have changed the outcome of the trial, and was not material to defendant's defense. . . ."

As in People v. Reyes, supra, and People v. Williams, supra, the "newly discovered evidence" in this case does not entitle the defendant to have his judgment vacated. The evidence of Detectives Vasquez's and Rachko's convictions fails to satisfy all six criteria necessary to classify it as "newly discovered" evidence. The detectives were convicted after the defendant pleaded guilty[FN1] and was sentenced. The detective's convictions "have no logical bearing on whether the defendant" committed the crimes to which he pleaded guilty. People v. Reyes, supra at p. 263.

Additionally, had the detectives convictions occurred prior to the defendant's guilty plea, the fact of those convictions would constitute impeachment material which is not a basis upon which to grant a motion to vacate made pursuant to CPL § 440.10.[FN2]

The defendant's claim that the judgement should

be vacated based upon an alleged Brady violation

The defendant also alleges that the evidence of the detectives' convictions constitutes exculpatory material, and he should have been made aware of these facts pursuant to Brady v. Maryland, 373 U.S. 83 (1963). In Brady v. Maryland, the Supreme Court held that any exculpatory evidence must be disclosed at a point in the proceedings where defendant is ensured

due process of law. However, the alleged exculpatory material did not exist until after the defendant pleaded guilty and therefore there was no exculpatory evidence at the time of the [*4]defendant's plea which the prosecution could have disclosed to the defendant.

For the reasons set forth above, the defendant's motion to vacate the judgment is denied in its entirety.

________________________Laura A. Ward

Acting Supreme Court Justice

Dated: New York, New York

September 19, 2005 Footnotes

Footnote 1:The fact that the defendants in People v. Reyes, 225 AD2d 261, appeal denied, 92 NY 1053 (1999) and People v. Williams, 19 A.D. 228 (2005), were convicted after trial and the defendant in the present case waived indictment and pleaded guilty to a Superior Court Information is immaterial.

Footnote 2:The defendant's reliance on People v. Reynoso, Indictment No. 947/98 (White, J) is misplaced. In Reynoso, the People, although conceding that the evidence at issue only satisfied five of the six requisite elements to be considered newly discovered evidence, did not oppose the defendant's motion to vacate his conviction. Therefore, it was not necessary for the court to decide whether or not the evidence of the detectives' convictions constituted newly discovered evidence.