People v. Brockway

• Decision Date: 31 March 2017
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Steven P. BROCKWAY, Defendant–Appellant. (Appeal No. 1.).

148 A.D.3d 1815

51 N.Y.S.3d 306

The PEOPLE of the State of New York, Respondent,

v.Steven P. BROCKWAY, Defendant–Appellant. (Appeal No. 1.).

Supreme Court, Appellate Division, Fourth Department, New York.

March 31, 2017.

Betzjitomir Law Office, Bath (Susan Betzjitomir of Counsel), for Defendant–Appellant.

Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), for Respondent.

PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him, upon an Alford plea, of burglary in the second degree (Penal Law § 140.25[2] ). In appeal No. 2, he appeals from a judgment convicting him, upon a plea of guilty, of tampering with a witness in the third degree (§ 215.11 [2] ).

We reject defendant's contention in appeal No. 1 that his claim of actual innocence may be reviewed on direct appeal following his Alford plea. A claim of actual innocence "must be based upon reliable evidence which was not presented at the [time of the plea]" (People v. Hamilton, 115 A.D.3d 12, 23, 979 N.Y.S.2d 97 ), and thus must be raised by a motion pursuant to CPL article 440 (see generally id. at 26–27, 979 N.Y.S.2d 97 ). Moreover, a plea of guilty " ‘should not be permitted to be used as a device for a defendant to avoid a trial while maintaining a claim of factual innocence’ " (People v. Conway, 118 A.D.3d 1290, 1290, 988 N.Y.S.2d 337, quoting People v. Plunkett, 19 N.Y.3d 400, 406, 948 N.Y.S.2d 233, 971 N.E.2d 363 ), and we conclude that the same is true of an Alford plea (see generally Matter of Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501 ). Even assuming, arguendo, that defendant's contention survived the plea, we conclude that defendant has "failed to demonstrate [his] factual innocence" (People v. Caldavado, 26 N.Y.3d 1034, 1037, 22 N.Y.S.3d 159, 43 N.E.3d 369 ; see People v. Larock, 139 A.D.3d 1241, 1244, 31 N.Y.S.3d 665, lv. denied

28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 ).

Defendant had over $15,000 in cash on his person when he was arrested on the charges in appeal No. 1. He contends that this money was unrelated to the charged crimes, and that the People's refusal to return it left him unable to retain counsel and denied him his right to counsel of his choice (see generally

Luis v. United States, ––– U.S. ––––, ––––, 136 S.Ct. 1083, 1089, 194 L.Ed.2d 256 ; United States v. Gonzalez–Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 ). Although this contention survives defendant's plea (see People v. Griffin, 20 N.Y.3d 626, 630–632, 964 N.Y.S.2d 505, 987 N.E.2d 282 ), we conclude that it is encompassed by the waiver of the right to appeal set forth in the "settlement agreement" signed by defendant in connection with the guilty plea. That agreement provided that, for the purpose of resolving potential civil forfeiture claims available to the District Attorney under CPLR article 13–A, the cash was subject to forfeiture as the proceeds or instrumentality of a crime (see CPLR 1311[1] ; see generally Morgenthau v. Citisource, Inc., 68 N.Y.2d 211, 217–218, 508 N.Y.S.2d 152, 500 N.E.2d 850 ), and defendant "waive[d] any right of appeal he may have regarding the forfeiture of the property." In any event, even assuming that the waiver did not encompass defendant's contention that he was denied his right to counsel of his choice as the result of the People's refusal to return the cash, we conclude that his contention is unpreserved for our review (see People v. Kamp, 129 A.D.3d 1339, 1341, 14 N.Y.S.3d 163, lv. denied 26 N.Y.3d 969, 18 N.Y.S.3d 605, 40 N.E.3d 583 ; People v. Sims, 105 A.D.3d 415, 416, 963 N.Y.S.2d 23, lv. denied 21 N.Y.3d 1009, 971 N.Y.S.2d 261, 993 N.E.2d 1284 ; see generally People v. Tineo, 64 N.Y.2d 531, 535–536, 490 N.Y.S.2d 159, 479 N.E.2d 795 ). While defendant repeatedly questioned why the money was not being returned to him, he never made the specific argument that County Court should order it returned to protect his right to counsel of his choice (see CPL 470.05[2] ), nor did he request a hearing to test the People's assertion that the money was related to the charged crimes (cf. Kaley v. United States, ––– U.S. ––––, ––––, 134 S.Ct. 1090, 1095, 188 L.Ed.2d 46 ).

Defendant further contends in appeal No. 1 that the court should have directed that the grand jury minutes be disclosed to him. Even assuming, arguendo, that this contention survives his plea (cf. People v. Ippolito, 114 A.D.3d 703, 703, 979 N.Y.S.2d 406 ), we conclude that he failed to show the requisite "compelling and particularized need" for disclosure of the minutes to overcome the statutory presumption of grand jury secrecy (People v. Robinson, 98 N.Y.2d 755, 756, 751 N.Y.S.2d 843, 781 N.E.2d 908 ; see People v. Eun Sil Jang, 17 A.D.3d 693, 694, 793 N.Y.S.2d 540 ; see generally CPL 190.25[4][a] ). His related constitutional claim is unpreserved for our review (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 ), and it is without merit in any event (see generally Robinson, 98 N.Y.2d at 756–757, 751 N.Y.S.2d 843, 781 N.E.2d 908 ). Defendant's contention in appeal No. 1 that the People violated their Brady obligation is forfeited by his guilty plea and is in any event without merit (see People v. Chinn, 104 A.D.3d 1167, 1168, 960 N.Y.S.2d 788, lv. denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 ). Defendant has not established that the People had access to his text messages prior to his plea or that those messages are exculpatory (see

People v. Hotaling, 135 A.D.3d 1171, 1173, 23 N.Y.S.3d 715 ; see generally People v. Santorelli, 95 N.Y.2d 412, 421–422, 718 N.Y.S.2d 696, 741 N.E.2d 493 ), and his " ‘speculation concerning the existence of [allegedly exculpatory video evidence] is insufficient to establish a ... Brady violation’ " (People v. Bryant, 298 A.D.2d 845, 846, 748 N.Y.S.2d 628, lv. denied 99 N.Y.2d 556, 754 N.Y.S.2d 208, 784 N.E.2d 81 ; see People v. Burton, 126 A.D.3d 1324, 1325–1326, 5 N.Y.S.3d 750, lv. denied 25 N.Y.3d 1199, 16 N.Y.S.3d 521, 37 N.E.3d 1164 ; People v. Johnson, 60 A.D.3d 1496, 1497, 876 N.Y.S.2d 282, lv. denied 12 N.Y.3d 926, 884 N.Y.S.2d 707, 912 N.E.2d 1088 ).

We further conclude in appeal No. 1 that the court properly refused to suppress evidence recovered from defendant's vehicle without conducting a hearing. It was apparent from information available to defendant at the time of his request that the search of his vehicle was based on the automobile exception to the warrant requirement, i.e., probable cause to believe that the vehicle contained evidence of the charged crimes (see People v. Jackson, 52 A.D.3d 1318, 1319, 860 N.Y.S.2d 368, lv. denied 11 N.Y.3d 737, 864 N.Y.S.2d 396, 894 N.E.2d 660 ; People v. Brown, 24 A.D.3d 884, 886, 806 N.Y.S.2d 262, lv. denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377 ; see generally People v. Blasich, 73 N.Y.2d 673, 678–680, 543 N.Y.S.2d 40, 541 N.E.2d 40 ). Inasmuch as defendant made no allegations questioning the applicability of that exception, he "did not raise any factual issue warranting a hearing" (People v. Thomason, 37 A.D.3d 304, 305, 831 N.Y.S.2d 131 ; see generally CPL 710.60 [3 ]; People v. Mendoza, 82 N.Y.2d 415, 421–422, 604 N.Y.S.2d 922, 624 N.E.2d 1017 ).

Even assuming, arguendo, that defendant's request for dismissal of the indictment in each appeal based on police misconduct survives his pleas and is preserved for our review (cf. People v. Zer, 276 A.D.2d 259, 259, 714 N.Y.S.2d 257, lv. denied 96 N.Y.2d 837, 729 N.Y.S.2d 458, 754 N.E.2d 218 ), we conclude that the record does not establish any misconduct sufficiently egregious to warrant that relief (see People v. Peterkin, 12 A.D.3d 1026, 1027, 785 N.Y.S.2d 620, lv. denied 4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142 ; People v. Ranta, 203 A.D.2d 307, 307, 610 N.Y.S.2d 283, lv. denied 83 N.Y.2d 970, 616 N.Y.S.2d 23, 639 N.E.2d 763, reconsideration denied 85 N.Y.2d 979, 629 N.Y.S.2d 739, 653 N.E.2d 635 ; cf. People v. Isaacson, 44 N.Y.2d 511, 518–519, 406 N.Y.S.2d 714, 378 N.E.2d 78, rearg. denied 45 N.Y.2d 776, 408 N.Y.S.2d 1027, 380 N.E.2d 350 ).

Defendant's further contention in appeal No. 1 that the court erred in accepting his Alford plea in the absence of " ‘strong evidence of actual guilt’ " in the record is not preserved for our review because he failed to move to withdraw his plea or to vacate the judgment of conviction (People v. Elliott, 107 A.D.3d 1466, 1466, 965 N.Y.S.2d 899, lv. denied 22 N.Y.3d 996, 981 N.Y.S.2d 2, 3 N.E.3d 1170 ; see People v. Heidgen, 22 N.Y.3d 981, 981–982, 979 N.Y.S.2d 553, 2 N.E.3d 921 ; see also People v. Sherman, 8 A.D.3d 1026, 1026, 778 N.Y.S.2d 376, lv. denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837 ). In any event, we conclude that the record contains the requisite evidence of guilt to support the plea (see People v. Richardson, 132 A.D.3d 1313, 1316, 17 N.Y.S.3d 245, lv. denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 ;

Elliott, 107 A.D.3d at 1466, 965 N.Y.S.2d 899 ; People v. Stewart, 307 A.D.2d 533, 534, 763 N.Y.S.2d 688 ). Defendant's remaining challenges to the voluntariness of his plea in each appeal are likewise unpreserved for our review (see generally People v. Gilbert, 111 A.D.3d 1437, 1437, 974 N.Y.S.2d 874, lv. denied 22 N.Y.3d 1138, 983 N.Y.S.2d 497, 6 N.E.3d 616 ; Sherman, 8 A.D.3d at 1026, 778 N.Y.S.2d 376 ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).

Defendant further contends with respect to...