Anthony A. Scarpino, Jr., District Attorney, White Plains, NY
(Raffaelina Gianfrancesco and Richard Longworth Hecht of
counsel), for respondent.
Atwell, East Hampton, NY, for appellant.
E. CHAMBERS, J.P., SHERI S. ROMAN, ROBERT J. MILLER, BETSY
DECISION & ORDER
by the defendant from a judgment of the County Court,
Westchester County (Zambelli, J.), rendered October 21, 2014,
convicting him of robbery in the first degree (four counts),
grand larceny in the fourth degree (two counts), petit
larceny (two counts), criminal possession of stolen property
in the fifth degree, resisting arrest, reckless endangerment
in the second degree, speeding, reckless driving, and
unlawful fleeing of a police officer in a motor vehicle in
the third degree, upon a jury verdict, and imposing sentence.
The appeal brings up for review the denial, after a hearing,
of that branch of the defendant's omnibus motion which
was to suppress physical evidence.
that the judgment is affirmed.
defendant was convicted of robbery in the first degree and
other crimes upon, among other evidence, eyewitness testimony
establishing that he and two other individuals robbed the
owner of a car wash at gunpoint. The defendant was
apprehended after leading the police on a high-speed car
chase and subsequent chase on foot. The guns used during the
robbery and some of the proceeds of the crime were found on
the defendant's person and in the car in which the
defendant and his two cohorts had fled.
omnibus motion, the defendant sought, inter alia, to suppress
the guns recovered from the getaway car. After a hearing, the
County Court denied suppression. Upon conviction after trial,
the defendant moved to set aside the verdict pursuant to CPL
330.30(3) on the ground of newly discovered evidence, namely
that the prosecution committed a Brady violation
(see Brady v Maryland, 373 U.S. 83) by failing to
disclose that, pursuant to a joint investigation by the
Yonkers Police Department's Internal Affairs Division and
the Westchester County District Attorney's Office, it was
discovered that Detective Christian Koch, who testified at
the suppression hearing, made material, false statements in a
search warrant affidavit in an unrelated case. The County
Court denied the motion, finding, inter alia, that the
defendant failed to establish that a Brady violation
establish a Brady violation, a 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 (see
Strickler v Greene, 527 U.S. 263, 281-282). While it is
undisputed that the purported Brady material was
favorable to the defendant for the purpose of impeaching
Detective Koch's testimony (see People v
Garrett, 23 N.Y.3d 878, 886), the defendant failed to
show that the People suppressed the purported Brady
material. Although the People are charged with knowledge of
exculpatory information in the possession of the local
police, notwithstanding the trial prosecutor's own lack
of knowledge (see People v Santorelli, 95 N.Y.2d
412, 421; People v Wright, 86 N.Y.2d 591, 598),
" [a] police officer's secret knowledge of his own
prior illegal conduct in [an] unrelated case [ ] will not be
imputed to the prosecution for Brady purposes where
the People had no knowledge of the corrupt officer's
"bad acts" until after... trial'"
(People v Garrett, 23 N.Y.3d at 887-888, quoting
People v Johnson, 226 A.D.2d 828, 829; see
People v Vasquez, 214 A.D.2d 93, 95; see e.g. People
v Kinney, 107 A.D.3d 563, 564; People v
Longtin, 245 A.D.2d 807, 810, affd 92 N.Y.2d
640). Here, the People did not discover Detective Koch's
false statements until after the trial had ended.
the County Court properly denied the defendant's motion
to set aside the verdict pursuant to CPL 330.30(3).
defendant also contends that the County Court erred in
denying that branch of his omnibus motion which was to
suppress physical evidence. He argues that the suppression
hearing testimony of Detective Koch, that he saw in plain
view a hand-held machine gun on the backseat of the vehicle
that the defendant had been driving, was tailored to nullify
constitutional objections. Initially, the defendant's
contention is unpreserved for appellate review, as he never
raised this specific contention at the suppression hearing
(see CPL 470.05; People v Taylor, 120
A.D.3d 519). In any event, it is without merit. " The
credibility determinations of a hearing court following a
suppression hearing are accorded great deference on appeal,
and will not be disturbed unless clearly unsupported by the
record'" (People v Kelly, 131 A.D.3d 484,
485, quoting People v Hobson, 111 A.D.3d 958, 959).
Here, there is no support for the defendant's contention
that Detective Koch's hearing testimony was incredible,
patently tailored to nullify constitutional objections, or
otherwise unworthy of belief (see generally People v
Dunbar, 104 A.D.3d 198). Detective Koch's testimony
concerning his observation of the machine gun in plain view
was corroborated by Captain Peter Butler, who testified to
having seen the machine gun in plain view a short time after
Detective Koch's observation, and by photographs of the
machine gun on the backseat of the vehicle.
defendant's remaining contention is without merit.
CHAMBERS, J.P., ROMAN, MILLER and ...