June 20, 2013
The People of the State of New York, Respondent,
James Kinney, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Dylan Cerling of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
Mazzarelli, J.P., Renwick, Manzanet-Daniels, Gische, Clark, JJ.
Order, Supreme Court, New York County (Patricia Nunez, J.), entered May 24, 2012, which denied defendant's CPL 440.10 motion to vacate a judgment of the same court and Justice, rendered April 27, 2009, convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony drug offender, to a term of three years, unanimously affirmed.
The court properly denied defendant's CPL 440.10(1)(h) motion to vacate the judgment, made on the ground that it was obtained in violation of his right to disclosure of exculpatory evidence under Brady v Maryland (373 U.S. 83 ). More than a year after defendant's guilty plea, it was learned that a police chemist, who retested the drugs in this case after the original testing chemist had retired, had committed misconduct in unrelated cases. There was no Brady violation, because at the time of defendant's conviction, the People had neither actual nor imputed possession of, or access to, information about misconduct by this particular chemist (see People v Santorelli, 95 N.Y.2d 412, 421 ; People v Ortega, 40 A.D.3d 394, 395 [1st Dept 2007], lv denied 9 N.Y.3d 992 ; see also People v Vasquez, 214 A.D.2d 93, 99-102 [1st Dept 1995], lv denied 88 N.Y.2d 943 ). In any event, the alleged nondisclosure could not have materially affected defendant's decision to plead guilty (see People v Martin, 240 A.D.2d 5, 8-9 [1st Dept 1998], lv denied 92 N.Y.2d 856 ). Timely discovery and disclosure of the retesting chemist's misconduct would have provided defendant with little or no reason to reject a favorable plea offer and go to trial. The People would have called the retired chemist to testify, or had the drugs retested by a third chemist, or both, and the tainted chemist's involvement would have created minor issues, at most, about the identity of the drugs.