People v. Benard

• Decision Date: 17 November 1994
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Troy BENARD, Defendant.
• Court: New York Supreme Court

Page 242

620 N.Y.S.2d 242

163 Misc.2d 176

The PEOPLE of the State of New York, Plaintiff, v. Troy BENARD, Defendant.

Supreme Court, New York County,

Part N.

Nov. 17, 1994.

Alan Gardner, The Legal Aid Society, New York City, for defendant.

Special Narcotics Prosecutor, Robert Silbering, Robert M. Morgenthau, Dist. Atty., N.Y. County (William Jorgenson, of counsel), New York City, for People.

PETER J. BENITEZ, Justice.

Defendant was originally charged with Criminal Possession of a Controlled Substance in the First Degree, PL 220.21, a class A-1 felony, in a felony complaint which alleged that he possessed a mixture of cocaine and other substances having an aggregate weight in excess of four ounces. After plea discussions between the Special Narcotics Prosecutor and defense counsel the People agreed to dismiss the charge of PL 220.21 and add a charge of Criminal Possession of a Controlled Substance in the Third Degree, PL 220.16, a class B felony. Defendant then waived prosecution by indictment, agreed to be charged with that B felony in a Superior Court Information and, in Part N on February 25, 1994, pleaded guilty to Criminal Possession of a Controlled Substance in the Third Degree with a promise that he would receive an indeterminate sentence with a maximum not to exceed three years and a minimum of one year.

Thereafter, prior to sentence, defendant moved to withdraw his plea of guilty. Defendant's motion alleged that subsequent to his plea, counsel learned through newspaper articles that the arresting officer who recovered the contraband from defendant's vehicle had been sanctioned administratively by the Police Department as a part of the ongoing investigation by the Department and the Mayoral Mollen Commission into allegations of misconduct by officers assigned to the 30th Precinct, the arresting officer's precinct. No further details have been provided by either defense counsel or the Assistant District Attorney as to the basis for the administrative action taken against the officer.

Defendant's counsel asserts that a principal factor in defendant's decision to plead guilty was an assessment of the likelihood that the People would prevail on a motion to suppress. Counsel further asserts that had he known that the arresting officer was the subject on the ongoing investigation he would have recommended against entering a plea of guilty and that defendant tells him that he would have followed counsel's advice and rejected the plea offer.

Defendant's initial motion papers simply asserted that information about the officer's being the subject of an investigation should have been disclosed to defense counsel prior to the entry of defendant's guilty plea and that defendant was denied effective assistance of counsel by reason of counsel not being provided with this information. The People responded to defendant's motion by affirmation asserting that the first arrests of officers who were the subject of the 30th Precinct investigation did not occur until April 14, 1994 and the arresting officer in this case was not subjected to administrative action until May 4, 1994, both events well after defendant's plea. The People further state that they were unaware of any wrongdoing on the part of that officer as of the date defendant entered his plea.

Defendant replied to the People's response by asserting that the prosecutor "knew or should have known" of the misconduct by the officer which resulted in his discipline at the time of defendant's arrest, February 5, 1994. The basis for the assertion is the widespread notoriety that surrounded the Mollen Commission's investigation of officers in the 30th Precinct which began in 1992 and produced public hearings in 1993. While acknowledging in a footnote that he does not know what information was actually possessed by the prosecutor in February, defense counsel, in the body of his reply, now contends that the prosecutor should be charged with knowledge of any information about the officer possessed by the Mollen Commission. Accordingly, defendant asserts that the prosecutor violated his obligation to disclose exculpatory material.

The People further responded by affirmation to defendant's reply by asserting again that neither the assigned Assistant District Attorney or any other member of the Office of the Special Narcotics Prosecutor knew when defendant entered his plea that the officer in question was the subject of an investigation. The People further assert that even had they known of information about the investigation of the officer, such information would have at most constituted impeachment material relevant to the factual issues to be litigated at trial and defendant waived his right to litigate those issues by pleading guilty.

New York's highest court has never considered the question of whether a defendant waives the claim that the prosecutor has failed to disclose exculpatory material where defendant raises that claim after a plea of guilty. In People v. Jones, 44 N.Y.2d 76, 404 N.Y.S.2d 85, 375 N.E.2d 41 (1978), cert. denied, 439 U.S. 846, 99 S.Ct. 145, 58 L.Ed.2d 148, the Court found it unnecessary to decide this question when it held that defendant was not denied due process where the prosecutor failed to disclose prior to defendant's plea that the victim of the crime had died. The Court held that such information was "nonevidentiary information" which may have had a bearing on defendant's tactical decision as to whether to proceed to trial, but was not exculpatory material within the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. People v. Jones, supra, 44 N.Y.2d at 79-81, 404 N.Y.S.2d 85, 375 N.E.2d 41. The Court noted, in a footnote, that it was not expressing a view on what remedy would be appropriate had the prosecutor failed to disclose exculpatory evidence, but suggested that the appropriate remedy "might be limited to disciplinary proceedings." People v. Jones, supra, at 82, 404 N.Y.S.2d 85, 375 N.E.2d 41, fn.

The Appellate Divisions, Second and Third Department, however, have reached conflicting conclusions as to whether a defendant waives claims that a prosecutor failed to disclose exculpatory material when pleading guilty. In People v. Day, 150 A.D.2d 595, 541 N.Y.S.2d 463 (Second Department 1989), the Court held that, by pleading guilty, defendant waived his contention that the prosecutor failed to turn over exculpatory material prior to the plea. The Court held that "the plea does signal an agreement not to litigate the factual elements of the crime charged" and the materials not disclosed by the prosecution "go to the issue of factual guilt, which, while appropriate for litigation at a trial, are waived by a plea of guilty." People v. Day, supra, at 600, 541 N.Y.S.2d 463. Accord, People v. Thompson, 174 A.D.2d 702, 571 N.Y.S.2d 553 (Second Department 1991).

The Third Department, on the other hand, has expressed the view a claim of a violation of "Brady rights" is not waived by a plea of guilty. See, People v. Armer, 119 A.D.2d 930, 932, 501 N.Y.S.2d 203 (Third Department 1986), where the Court, while denying defendant's motion to withdraw his plea, held that a defendant must be permitted to withdraw his plea if the prosecutor failed to disclose exculpatory material and if there is a reasonable probability that defendant would not have pleaded guilty had the material been disclosed. See also, People v. Ortiz, 127 A.D.2d 305, 308, 515 N.Y.S.2d 317 (Third Department 1987), appeal denied, 70 N.Y.2d 652, 518 N.Y.S.2d 1045, 512 N.E.2d 571 where the court denied defendant's claim, but stated, "based on the analysis set forth by the Court of Appeals in People v. Pelchat, 62 N.Y.2d 97, 108, 476 N.Y.S.2d 79, 464 N.E.2d 447, a claim of a violation of Brady rights should not be deemed waived by a guilty plea." People v. Ortiz, supra, 127 A.D.2d at 308, 515 N.Y.S.2d 317. The Court's reference to People v. Pelchat however, does not provide authority for the Court's dicta, as the Court of Appeals, in People v. Pelchat, supra, had held that a plea may be vacated where the indictment was based on false testimony and this fact was known to the prosecutor. The Court specifically found it unnecessary to address the Brady issue raised by the claim that the prosecutor failed to disclose that the witness had recanted his grand jury testimony. See, People v. Pelchat, supra, 62 N.Y.2d at 109, 476 N.Y.S.2d 79, 464 N.E.2d 447.

Accordingly, there is a split in the positions of the Appellate Divisions which have considered the question presented here and the Court of Appeals has not addressed the question. Federal courts, however, have specifically ruled on this issue. In Miller v. Angliker, 848 F.2d 1312 (2nd Cir.1988), cert. denied, 488 U.S. 890, 109 S.Ct. 224, 102 L.Ed.2d 214, the Court held that a plea may be vacated if the prosecutor has failed to disclose exculpatory material which is required to be disclosed and if there is a reasonable probability that either counsel would have recommended against the plea or defendant would, irregardless of counsel's recommendation, not have entered the plea of guilty had the material been disclosed. Accord, Tate v. Wood, 963 F.2d 20 (2nd Cir.1992).

The rationale of these Federal decisions is that when a defendant admits guilt and pleads guilty the defendant has given up the right to put the prosecution to the burden of proving guilt. Due process requires that a waiver of that right to proceed to trial can only be validly obtained where the prosecution has disclosed exculpatory material required to be disclosed so that defendant and counsel can make an informed decision as to their estimate of whether the prosecution will likely prevail at trial. It is one thing for defendant and counsel to miscalculate the nature and persuasiveness of the prosecution's case. It is another for defendant and counsel to act without the benefit of information which is required to have been...