Prosecutor not required to disclose newly discovered evidence after guilty plea
People v Ortega, 2007 NY Slip Op 04220 [available here]
Mr. Ortega pleaded guilty to first-degree criminal possession of a controlled substance back in 1993, after a suppression hearing that challenged the arresting officers' assertions that the drugs he was alleged to have possessed were observed in plain view during a traffic stop. Sentence was not imposed on the guilty plea until 2002 because Mr. Ortega absconded. In 1994, "the officers who testified at the hearing were implicated in an investigation of corruption . . . [o]ne officer was convicted of perjury, and the other dismissed from the Police Department for making false statements." (Ortega, 2007 NY Slip Op 04220.)
Defense counsel made a 440.10 motion to vacate his conviction, arguing that the prosecutor should have informed Mr. Ortega of the corruption probe involving the officers in his case as Brady material and/or as "newly discovered evidence" under CPL 440.10. (Id. at __.) The First Department disagreed on both scores.
As to the Brady violation, the Court noted that the perjury and corruption allegations against the officers did not come to light until after Mr. Ortega took his guilty plea, and thus the "information regarding the misconduct of these officers . . . was not in the People's actual or constructive possession until after defendant's guilty plea (and after his originally scheduled sentence, which was postponed only because he absconded)." (Id. at __.) The Court noted that the prosecutor's Brady obligations might have survived the defendant's conviction if the disputed evidence "tend[ed] to exonerate the defendant" and if the defendant had "contested his guilt at a trial", but that no such obligation extends beyond conviction if the "case involves the prosecution's post-conviction acquisition of impeachment material, relating to a Fourth Amendment issue, where a defendant chose not to litigate his guilt and does not contest it on appeal." (Id. at __.)
This is a bit silly. After conviction but before the defendant was sentenced, the People became aware of evidence that, if introduced at the suppression hearing, may well have resulted in the suppression of the drugs Mr. Ortega was alleged to have possessed. But because the evidence at issue did not totally "exonerate" the defendant (it only gutted the credibility of the police officers upon whose words the entire suppression finding rested), and because Mr. Ortega did not take his case to trial, his guilty plea must stand. Really? Why not apply a standard more familiar to a traditional Brady analysis--if there is a reasonable possibility that the evidence at issue would have 1) effected the defendant's decision to plead guilty, or 2) resulted in a different outcome at the suppression hearing, then the People must disclose it. Why introduce elements in the context of a Brady violation after a guilty plea--i.e. a showing of actual innocence and a requirement that defendant protest his innocence at trial--that are not required to establish a Brady violation after trial?
The Court also rejected Ortega's "newly discovered evidence" argument, holding that CPL 440.10[g] (allowing the trial court to grant a new trial based on newly discovered evidence) "applies only to convictions after trial." (Id. at __.) And a writ of error coram nobis is not available, because such a writ only "survive[d] the enactment of the Criminal Procedure Law with respect to matters that statute does not address" and, according to the Court, "the power to set aside a judgment on the basis of newly discovered evidence has been codified." (Id. at __.) So the First Department, in the same paragraph, holds, 1) that section 440.10 of the CPL does not apply to situations where new evidence is discovered after a guilty plea and the defendant wants his plea back on that basis, and 2) the writ of error coram nobis is not available to Mr. Ortega (who wants to set aside his guilty plea based on newly discovered evidence) because section 440.10 of the CPL already addresses this issue. (Id. at __.) Heads I win, tails you lose.
Trial courts should err on side of granting a suppression hearing "despite a perceived pleading deficiency"
People v Rivera, 2007 NY Slip Op 04238 [available here]
In his motion to suppress drugs and money found after his arrest, the defendant essentially denied being involved in the drug sale and likewise denied acting suspiciously. The trial court refused to have a hearing, holding that defendant's general denial was not enough to create a factual dispute. The First Department reversed, noting that "defendant's denial that he was participating in a drug transaction, which alleged event was the only basis for the probable cause to arrest and search him and the car he was sitting in at the time, was clearly sufficient to warrant a hearing on his motion." (Rivera, 2007 NY Slip Op 04238.) The Court then took the unusual step of admonishing trial courts to err on the side of granting a suppression hearing. "Moreover, while technically not part of the test for determining the sufficiency of a defendant's factual allegations, given that CPL 710.60 merely permits, but does not mandate summary denial, the interest of judicial economy militates in favor of the court's conducting a hearing on the suppression motion in the exercise of its discretion despite a perceived pleading deficiency." (Id. at __.) A very useful decision.