Matthew A. Wasserman, for appellant.
A. Morales, for respondent.
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');">90 N.Y.2d 585 ),
People v O'Toole (22 N.Y.3d 335');">22 N.Y.3d 335 ), and
People v Berkowitz (50 N.Y.2d 333');">50 N.Y.2d 333 ).
Therefore, the Appellate Division order affirming the
judgment should be affirmed.
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.
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.
evening after the brother testified, the prosecutor
discovered handwritten notes of his pre-trial interview with
the brother. The notes included "blurbs" indicating
that the brother was "unsure, " "saw punches
thrown, " Roche "starts pulling out gun, " the
victim "grabbed gun, " and that another person in
the apartment "was punching" Roche. Roche's
defense counsel conceded the notes should have been disclosed
under People v Rosario (9 N.Y.2d 286, 289 ),
not Brady v Maryland (373 U.S. 83, 87 ), 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.
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 accidently 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.
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.
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');">119 A.D.3d 426 [1st Dept 2014]). A Judge of this
Court granted leave to appeal (People v Fisher, 26
N.Y.3d 1008 ).
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 ). 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 ). 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