People v. Kelly

• Decision Date: 21 September 2022
• Docket Number: 2018–09896,Ind. No. 1561/13
• Citation: 208 A.D.3d 1250,174 N.Y.S.3d 269 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Lorenzo KELLY, appellant.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1250
174 N.Y.S.3d 269 (Mem)

The PEOPLE, etc., respondent,
v.
Lorenzo KELLY, appellant.

2018–09896
Ind. No. 1561/13

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

Submitted—February 1, 2022
September 21, 2022

Marianne Karas, Thornwood, NY, for appellant.

Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Libbi L. Vilher of counsel), for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

208 A.D.3d 1251

Appeal by the defendant, by permission, from so much of an order of the Supreme Court, Nassau County (Patricia A. Harrington, J.), entered July 20, 2018, as denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Philip M. Grella, J.) rendered September 18, 2014, convicting him of aggravated driving while intoxicated, driving while intoxicated per se, driving while intoxicated, driving while ability impaired by the combined influence of drugs and alcohol, driving while ability impaired by drugs, aggravated vehicular assault (two counts), vehicular assault in the first degree (two counts), vehicular assault in the second degree (two counts), assault in the first degree (two counts), assault in the second degree (two counts), assault in the third degree, reckless endangerment in the first degree, reckless driving, leaving the scene of an incident without reporting (two counts), aggravated unlicensed operation of a motor vehicle in the first degree (two counts), and aggravated unlicensed operation of a motor vehicle in the second degree (two counts), upon his plea of guilty, and imposing sentence.

ORDERED that the order is affirmed insofar as appealed from.

Contrary to the Supreme Court's determination, the defendant did not forfeit his right to seek review of an alleged Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ) by pleading guilty (see

174 N.Y.S.3d 270

People v. Fisher, 28 N.Y.3d 717, 722, 49 N.Y.S.3d 344, 71 N.E.3d 932 ; People v. Wilson, 159 A.D.3d 1600, 1601, 72 N.Y.S.3d 748 ). To the extent that our prior decisions hold that a defendant forfeits the right to seek review of an alleged Brady violation by pleading guilty (see e.g. People v. Slater, 141 A.D.3d 677, 678, 35 N.Y.S.3d 452 ; People v. Nelson, 137 A.D.3d 948, 948, 26 N.Y.S.3d 481 ; People v. Leach, 115 A.D.3d 677, 679, 981 N.Y.S.2d 445, affd 26 N.Y.3d 1154, 28 N.Y.S.3d 355, 48 N.E.3d 497 ; People v. Huggins, 105...