People v. Stokes

211 A.D.3d 1243

179 N.Y.S.3d 825

The PEOPLE of the State of New York, Respondent,

v.James E. STOKES, Appellant.

113143

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

Calendar Date: November 21, 2022

Decided and Entered: December 15, 2022

Matthew C. Hug, Albany, for appellant.

P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal, by permission, from an order of the Supreme Court (Roger D. McDonough, J.), entered October 26, 2021 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and criminal sale of a firearm in the third degree, without a hearing.

Following a jury trial, defendant was convicted of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and criminal sale of a firearm in the third degree and was sentenced, as a second felony offender, to an aggregate prison term of 14 years followed by five years of postrelease supervision. Upon defendant's direct appeal, this Court affirmed ( 141 A.D.3d 1032, 36 N.Y.S.3d 307 [3d Dept. 2016], lv denied 28 N.Y.3d 1075, 47 N.Y.S.3d 234, 69 N.E.3d 1030 [2016] ). In October 2020, defendant brought a pro se motion pursuant to CPL 440.10 seeking to vacate the judgment of conviction.¹ Supreme Court denied the motion without a hearing, and defendant appeals, by permission, from the court's resulting order.

Preliminarily, we reject defendant's assertion that the People's failure to respond to his CPL 440.10 motion amounted to a concession of the facts alleged therein, thereby compelling Supreme Court to summarily grant the motion. Consistent with the provisions of CPL 440.30(1)(a), "the People may – but are not required to – file an answer denying or admitting any or all of the allegations of the motion papers" ( People v. Miller, 199 A.D.3d 1058, 1060, 156 N.Y.S.3d 546 [3d Dept. 2021] [internal quotation marks and citation omitted], lv denied 37 N.Y.3d 1147, 159 N.Y.S.3d 341, 180 N.E.3d 505 [2021] ). Hence, the People's failure to file an answer or otherwise respond to defendant's motion did not require Supreme Court to grant it (see People v. Anderson, 104 A.D.3d 968, 972, 960 N.Y.S.2d 548 [3d Dept. 2013], lv denied 21 N.Y.3d 1013, 971 N.Y.S.2d 495, 994 N.E.2d 391 [2013] ; People v. Hoffler, 74 A.D.3d 1632, 1635 n. 4, 906 N.Y.S.2d 115 [3d Dept. 2010], lv denied 17 N.Y.3d 859, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ).

As to the merits, defendant's present motion is premised upon newly discovered evidence of prosecutorial misconduct – namely, the People's failure to disclose an alleged "plea deal" involving a particular trial witness and her then boyfriend, as well as the People's purported failure to disclose the witness’ complete criminal history. According to defendant, the People did not disclose the witness’ "rap sheet" but, instead, provided defendant's trial counsel with a typewritten list of the witness’ criminal convictions. Absent from this list, defendant contends, was the witness’ misdemeanor conviction for endangering the welfare of a child. Defendant further asserts that both the witness in question and her then boyfriend, the latter of whom allegedly sold the weapon at issue to defendant, received a favorable "plea deal" in return for their cooperation in the prosecution of defendant. Defendant maintains that the People's asserted omissions, which he did not discover until some point after sentencing, give rise to a Brady violation and warrant vacatur of his conviction. We disagree.

As for the existence of the purported plea deal, defendant acknowledges that the People did not call the witness’ boyfriend to testify at trial, and defendant's unsubstantiated assertion that the witness in question received favorable treatment in exchange for her testimony is undermined by the record, which reflects that the witness was sentenced upon her conviction of endangering the welfare of a child more than six months before she testified on behalf of the People. Additionally, the witness was cross-examined by defendant's trial counsel regarding whether she received "some kind of favorable treatment" in exchange for providing authorities with "information about a gun," in response to which she indicated that she "wasn't getting [anything] out of it." In light of such testimony, and absent any other evidence to support the existence of the alleged plea deal, defendant's allegation in this regard is insufficient to warrant the requested relief (see CPL 440.30[4][d] ).

We reach a similar conclusion with respect to the asserted Brady violation. To be sure, "the People are required to timely disclose all exculpatory and material evidence, including evidence that could be used to challenge the credibility of a crucial prosecution witness" ( People v. Slivienski, 204 A.D.3d 1228, 1239, 166 N.Y.S.3d 392 [3d Dept. 2022] [internal quotation marks and citation omitted], lv denied 38 N.Y.3d 1136, 172 N.Y.S.3d 854, 193 N.E.3d 519 [2022] ). A defendant seeking to establish a Brady violation "must demonstrate 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. Wideman, 192 A.D.3d 1384, 1387, 145 N.Y.S.3d 194 [3d Dept. 2021] [internal quotation marks and citation omitted], affd 38 N.Y.3d 1067, 171 N.Y.S.3d 28, 190 N.E.3d 1160 [2022] ; accord People v. Houze, 177 A.D.3d 1184, 1187, 115 N.Y.S.3d 141 [3d Dept. 2019], lv denied 34 N.Y.3d 1159, 120 N.Y.S.3d 259, 142 N.E.3d 1161 [2020] ).

The People concede that the evidence at issue – the witness’ conviction of endangering the welfare of a child – is impeaching in nature, and there is no question that defendant specifically requested, as relevant here, "the criminal records of the People's witnesses." Although the parties debate whether the witness’ entire criminal record, including the subject conviction, was in fact disclosed to defendant prior to trial, this factual dispute is not dispositive. Where, as here, a defendant makes a specific request for undisclosed evidence, the materiality element is satisfied...