People v. Roundtree

220 A.D.3d 1049

198 N.Y.S.3d 788

The PEOPLE of the State of New York, Respondent,

v.Rashaun ROUNDTREE, Appellant.

111898, 113342

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 5, 2023

Decided and Entered: October 19, 2023

James A. Bartosik Jr., Glenmont, for appellant, and appellant pro se.

Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), for respondent.

Before: Lynch, J.P., Clark, Aarons, Pritzker and Ceresia, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeals (1) from a judgment of the County Court of Clinton County (William A. Favreau, J.), rendered September 5, 2019, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree (four counts), criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the fourth degree, and (2) by permission, from an order of said court, entered February 14, 2022, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

On January 25, 2018, the narcotics division of the City of Plattsburgh Police Department, through a confidential informant, conducted two controlled buys of cocaine from Sarah Provost. Police conducted a third controlled buy from Provost through another confidential informant on January 30, 2018 and, later that day, obtained a search warrant for Provost's residence. While executing the warrant late that night, police observed defendant sitting alone on the living room couch, next to a baggie containing three suboxone strips and a small amount of a substance later confirmed to be crack cocaine; Provost and another woman were found in a different area of the residence. As defendant was being arrested, he reached into his pockets and discarded, among other things, some of the serialized money that was used in the controlled buys. Defendant was arrested and charged by felony complaint with criminal possession of a controlled substance in the third degree, stemming from the crack cocaine found during the execution of the warrant.

Defendant was arraigned and represented by assigned counsel. He rejected an initial plea offer of four years in prison followed by three years of postrelease supervision (hereinafter PRS). Defendant then retained counsel. On May 9, 2018, he was charged in a single-count indictment (hereinafter the first indictment) with criminal possession of a controlled substance in the third degree, stemming from the crack cocaine found during the execution of the search warrant. The same day, Provost was charged in a four-count indictment with charges stemming from the two controlled buys completed on January 25, 2018, and attorney Joseph Mucia was assigned to represent her. Defendant and Provost were charged separately and their cases were assigned to different judges.

Prior to defendant's arraignment on the first indictment, his retained counsel sought to be relieved due to a breakdown in the attorney-client relationship, which motion was granted. County Court set bail in the amount of $50,000 cash/$100,000 bond and adjourned arraignment for a week. At the next appearance, Mucia was assigned to represent defendant; defendant was arraigned, entered a plea of not guilty and, on Mucia's motion, defendant's bail was reduced to $25,000 cash/$50,000 bond. Mucia then filed discovery demands, a demand for a bill of particulars and an omnibus motion, and the People filed responsive papers. The People amended the prior plea offer to explicitly satisfy defendant's other known but uncharged crimes, to wit, the three controlled buys conducted in January 2018. Defendant rejected the amended offer at an appearance on September 4, 2018, where the People advised defendant of their intent to present evidence to a second grand jury to consider additional charges against him. By letter dated September 11, 2018, Mucia sought to be relieved as counsel for both Provost and defendant, noting that Provost had been subpoenaed to testify against defendant before the second grand jury. The court relieved Mucia from representing defendant, who was assigned attorney Justin Herzog. Mucia was also relieved from representing Provost and, on October 2, 2018, she appeared before the second grand jury represented by new counsel, waived immunity and provided testimony.

Defendant was thereafter charged in an eight-count superseding indictment with three counts of criminal possession of a controlled substance in the third degree (counts 1, 3 and 5) and three counts of criminal sale of a controlled substance in the third degree (under an acting in concert theory) (counts 2, 4 and 6) – one of each count for each of the three controlled buys completed in January 2018 – and a count of criminal possession of a controlled substance in the fourth degree (count 7) and criminal possession of a controlled substance in the third degree (count 8) stemming from the crack cocaine found during the execution of the search warrant. Defendant was arraigned on the superseding indictment on October 23, 2018. Soon after, Herzog filed discovery demands, a demand for a bill of particulars and an omnibus motion, and the People filed responsive papers. On November 9, 2018, Provost pleaded guilty to two counts of criminal sale of a controlled substance in the third degree.

At an appearance on January 3, 2019, defendant rejected a plea offer to resolve the superseding indictment – providing for an aggregate prison term of eight years followed by three years of PRS – and expressed frustration at feeling like Provost was being rewarded while he was punished disproportionately. Soon after, County Court issued an order on defendant's omnibus motion, among other things, denying defendant's request for a Mapp hearing. On January 14, 2019, Provost was sentenced to five years of probation. After posting bail, defendant appeared before the court in March 2019, where Herzog sought to be relieved upon learning that a former client was on the People's witness list. County Court relieved Herzog, and defendant was assigned attorney Michael Phillips. Then, on May 2, 2019, defendant rejected an amended offer – an aggregate prison term of seven years followed by three years of PRS – and, instead, pleaded guilty to the entire indictment. At that time, the People committed to seek a sentence of no more than seven years, so long as defendant continued to appear and was not arrested while awaiting sentencing.

Prior to the sentencing, defendant was arrested on new charges in Orange County.¹ He was transported to Clinton County, where County Court revoked his bail and adjourned sentencing. During the adjournment, defendant sent the court three letters seeking leniency highlighting, among other things, that Provost was the principal during the controlled buys and received a no-prison sentence. During the September 5, 2019 sentencing hearing, defendant admitted to being a second felony drug offender and again sought leniency based on, among other things, Provost's no-prison sentence. The People, in turn, sought a harsher sentence – an aggregate prison term of 10 years followed by three years of PRS – due to defendant's new arrest. County Court expressly declined to consider the new arrest and sentenced defendant to an aggregate prison term of 10 years followed by three years of PRS, along with fines amounting to $38,000. In 2021, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10, alleging ineffective assistance of counsel and Brady violations by the People, a motion which the People opposed. County Court denied the motion without an evidentiary hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his motion to vacate.

On the appeal from his CPL 440.10 motion, defendant argues that his plea was not knowing, voluntary and intelligent due to alleged Brady violations stemming from the People's failure to disclose Provost's cooperation agreement, her plea bargain and the transcript of her plea hearing. "To 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" ( People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 [2009] [citation omitted]; see People v. Slivienski, 204 A.D.3d 1228, 1239, 166 N.Y.S.3d 392 [3d Dept. 2022], lv denied 38 N.Y.3d 1136, 172 N.Y.S.3d 854, 193 N.E.3d 519 [2022] ). Inasmuch as "the existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles" ( People v. Novoa, 70 N.Y.2d 490, 496, 522 N.Y.S.2d 504, 517 N.E.2d 219 [1987] [internal quotation marks and citation omitted]; see People v. Lalonde, 160 A.D.3d 1020, 1026, 74 N.Y.S.3d 638 [3d Dept. 2018], lv denied 31 N.Y.3d 1118, 81 N.Y.S.3d 378, 106 N.E.3d 761 [2018] ; People v. Hotaling, 135 A.D.3d 1171, 1172, 23 N.Y.S.3d 715 [3d Dept. 2016] ), and the People concede that they failed to disclose Provost's cooperation agreement or the attendant information, we focus our inquiry on the materiality of such evidence. "Where, as here, a defendant makes a specific request for undisclosed evidence, the materiality element is satisfied only if there exists a reasonable possibility that such evidence would have changed the result of the proceeding" ( People v. Stokes, 211 A.D.3d 1243, 1245, 179 N.Y.S.3d 825 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted], lv denied 39 N.Y.3d 1143, 188 N.Y.S.3d 444, 209 N.E.3d 1273 [2023] ; see People v. McGhee, 36 N.Y.3d 1063, 1065, 142 N.Y.S.3d 863, 166 N.E.3d 1041 [2021] ).²

On this record, defendant was first made aware that the People sought to have...