Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Fisher

New York Court of Appeals

February 14, 2017

The People & c., Respondent,
v.
Kevin Fisher, Appellant.

          Matthew A. Wasserman, for appellant.

          Luis A. Morales, for respondent.

          RIVERA, J.

         Defendant 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 [1997]), People v O'Toole (22 N.Y.3d 335');">22 N.Y.3d 335 [2013]), and People v Berkowitz (50 N.Y.2d 333');">50 N.Y.2d 333 [1980]). Therefore, the Appellate Division order affirming the judgment should be affirmed.

         I.

         Defendant 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.

         Roche 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.

         The 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 [1961]), not Brady v Maryland (373 U.S. 83, 87 [1963]), and the court permitted cross-examination on the content of the prosecutor's notes [1]. 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.

         Roche 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.

         The 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.

         After 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 [2015]).

         II.

         A 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 [3]). 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 [2016]). 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.