People v. Fisher
| Decision Date | 14 February 2017 |
| Citation | 71 N.E.3d 932,49 N.Y.S.3d 344,28 N.Y.3d 717 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Kevin FISHER, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Richard M. Greenberg, Office of the Appellate Defender, New York City (Matthew A. Wasserman of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Luis Morales and Alan Gadlin of counsel), for respondent.
Defendant Kevin Fisher challenges the denial of his motion to withdraw his guilty plea to one count of hindering prosecution in the second degree (Penal Law § 205.60 ). The courts below properly rejected defendant's claims that his plea is constitutionally infirm and that his codefendant's acquittal of the underlying felony renders defendant innocent. Neither claim is supported by existing precedent, and his innocence theory is counter to this Court's holdings in People v. Chico , 90 N.Y.2d 585, 665 N.Y.S.2d 5, 687 N.E.2d 1288 (1997), People v. O'Toole , 22 N.Y.3d 335, 980 N.Y.S.2d 350, 3 N.E.3d 687 (2013), and People v. Berkowitz , 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 (1980). Therefore, the Appellate Division order affirming the judgment should be affirmed.
Defendant was charged with hindering prosecution in the first degree and criminal possession of a weapon in the third degree for providing and hiding a gun used by codefendant Clovis Roche in a fatal shooting. On the eve of trial, defendant pleaded guilty to the lesser included offense of hindering prosecution in the second degree, in satisfaction of the indictment. At the plea colloquy, he admitted under oath that he rendered criminal assistance to Roche, who had committed murder in the second degree, and that defendant knew and believed Roche had engaged in conduct constituting second-degree murder. As part of his plea, defendant waived his right to appeal.
Roche proceeded to trial. The People's sole eyewitness was the brother of the victim, who testified that he was at his brother's apartment with several other people when a dispute arose and Roche shot his brother. The brother's assertion that he told the police that Roche was the shooter contradicted the trial testimony of a detective who said the brother told her that he had not seen the shooting, but was consistent with later statements the brother made to other police officers, the prosecutor, and the grand jury.
The evening after the brother testified, the prosecutor discovered handwritten notes of his pretrial interview with the brother. The notes included "blurbs" indicating that the brother was "unsure," "saw punch thrown," Roche "starts pulling out gun," and the victim "grabbed gun" and "was punching" Roche. Roche's defense counsel conceded the notes should have been disclosed under People v. Rosario , 9 N.Y.2d 286, 289, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961), not Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the court permitted cross-examination on the content of the prosecutor's notes.* Thereafter, defense counsel attempted to impeach the brother with the notes and referred to them in summation as evidence that the brother was lying on the stand and that he had not seen the shooting.
Roche testified in his defense that he never intended to shoot the victim, and only displayed the gun to persuade him and the others to leave the apartment. According to Roche, the victim grabbed for the gun, the two men fell back into the bedroom, and the gun accidentally went off twice while they struggled. Although the gun was never recovered, Roche admitted that he got it from defendant. Despite Roche's denial of any intent to use the gun, the trial court granted defense counsel's request to charge on self-defense.
The jury acquitted Roche of the felony charges of murder in the second degree and criminal possession of a weapon in the second degree, but convicted him of the misdemeanor count of criminal possession of a weapon in the fourth degree.
After Roche's acquittal on the felony counts, and prior to defendant's sentencing, defendant moved to withdraw his plea pursuant to CPL 220.60(3). The court denied the motion and sentenced defendant in accordance with the plea agreement. The Appellate Division affirmed (People v. Fisher, 119 A.D.3d 426, 988 N.Y.S.2d 187 [1st Dept.2014] ). A Judge of this Court granted leave to appeal (People v. Fisher, 26 N.Y.3d 1008, 20 N.Y.S.3d 549, 42 N.E.3d 219 [2015] ).
A determination on a defendant's motion to withdraw a plea prior to sentencing is left to the sound discretion of the court (CPL 220.60 [3] ). We review the denial of such a motion for abuse of discretion as a matter of law (People v. Manor, 27 N.Y.3d 1012, 1013–1014, 35 N.Y.S.3d 272, 54 N.E.3d 1143 [2016] ). Here, defendant challenges the trial court's denial of his motion to withdraw his plea on two grounds: (1) the plea was not voluntary, knowing and intelligent because he entered the plea without benefit of the prosecutor's notes, which are exculpatory and would have materially affected defendant's decision to plead guilty; and (2) defendant is innocent of hindering prosecution due to Roche's acquittal of the underlying felony of second-degree murder. We conclude that the notes are not exculpatory and, regardless, would not have materially affected defendant's decision to plead. Further, the acquittal of Roche does not render defendant's admission of guilt a legal nullity. Therefore, the trial court did not abuse its discretion in denying defendant's motion.
Under well-established federal and state constitutional principles, suppression of "favorable evidence in the People's possession which is material to either guilt or punishment" is a violation of a defendant's federal and state due process rights (People v. Bryce, 88 N.Y.2d 124, 128, 643 N.Y.S.2d 516, 666 N.E.2d 221 [1996], citing Brady, 373 U.S. at 87, 83 S.Ct. 1194 and People v. Vilardi, 76 N.Y.2d 67, 73, 556 N.Y.S.2d 518, 555 N.E.2d 915 [1990] ). To establish that the People violated these rights, "defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" (People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 [2009] ). The Appellate Division Departments and the United States Court of Appeals for the Second Circuit have held that in cases where a defendant pleads guilty and the People have suppressed exculpatory evidence, the defendant must establish that the evidence would have materially affected the decision to plead rather than go to trial (see People v. Martin, 240 A.D.2d 5, 9, 669 N.Y.S.2d 268 [1st Dept.1998] ; People v. Armer, 119 A.D.2d 930, 501 N.Y.S.2d 203 [3d Dept.1986] ; Tate v. Wood, 963 F.2d 20, 24 [2d Cir.1992] ).
Here, the notes do not refer to defendant's acts or intention, and, as such, they do not directly or expressly provide evidence favorable to defendant by negating or placing in doubt his criminal acts. Nor do the notes support a theory that Roche acted in self-defense, as defendant claims. To the extent the notes reveal the brother told the prosecutor he saw Roche pull out a gun and then saw the victim grab it, the notes are inculpatory as to Roche. Specifically, the notes indicate that Roche was pulling the gun from his belt and not merely displaying it as he testified at trial. The notes also made it appear as if the victim acted in self-defense and not the other way around. Given that the notes are not favorable to defendant by exculpating him or Roche, we reject defendant's contention that the notes would have materially affected his decision to plead guilty.
Defendant's alternative argument—that the People cannot establish a necessary element of hindering prosecution—is partially foreclosed by his guilty plea to the extent he challenges the sufficiency of the evidence in his case (People v. Plunkett, 19 N.Y.3d 400, 405, 948 N.Y.S.2d 233, 971 N.E.2d 363 [2012] ). However, we may consider his claim that Roche's acquittal renders defendant innocent of the crime to which he pleaded guilty, along with his argument that the People are collaterally estopped from further prosecution of defendant (People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985] ; People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329 [1971] ).
A defendant is guilty of hindering prosecution in the second degree when the defendant "renders criminal assistance to a person who has committed a class B or class C felony" (Penal Law § 205.60 ). In People v. Chico , 90 N.Y.2d 585, 588, 665 N.Y.S.2d 5, 687 N.E.2d 1288 (1997), a case involving first-degree hindering prosecution, the Court held that "the People must prove that the underlying class A felony was committed," but made clear that "the statute does not require proof that the assisted person was ever arrested or convicted." Other than the class of the underlying felony and the fact that first-degree hindering prosecution has the added element that the defendant knew or believed that the assisted person engaged in the conduct constituting a class A felony, first- and second-degree hindering prosecution share the same elements. Accordingly, the rules set forth in Chico apply equally to the lesser included offense.
Contrary to defendant's suggestion, the People may satisfy their burden to establish defendant's guilt beyond a reasonable doubt by relying on the defendant's admissions that the assisted person committed the crime. Indeed, Chico specifically permits such evidence, as the Court held the defendant's eyewitness account that the assisted person stalked and fatally shot the victim was evidence against the defendant establishing the underlying felony of intentional murder (id. at 589, 665 N.Y.S.2d 5, 687 N.E.2d 1288 ). Similarly, the elements of second-degree hindering prosecution were established at ...
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