[*1]
People v Connell
2015 NY Slip Op 51109(U) [48 Misc 3d 1213(A)]
Decided on July 13, 2015
Criminal Court Of The City Of New York, Bronx County
Montano, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 13, 2015
Criminal Court of the City of New York, Bronx County


The People of the State of New York, Plaintiff,

against

Vivian Connell, Defendant.




2015BX009566



Appearances of Counsel



The People — Robert T. Johnson, District Attorney, Bronx County by Joelle P. Morabito, Assistant District Attorney



Defendant — The Legal Aid Society by Erin Tomlinson


Armando Montano, J.

Defendant moves for an order permitting him to withdraw his guilty plea on the grounds of newly discovered evidence.



By superseding information filed with the Court on March 11, 2015, defendant was charged with Forcible Touching (PL § 130.52), Assault in the Third Degree (PL §120.00[1]), Resisting Arrest (PL § 205.30), Harassment in the Second Degree (PL §240.26[1]), and Disorderly Conduct (PL § 240.20[1]). According to the superseding information, on February 27, 2015 at approximately 6:00 p.m. inside a bodega located at 1669 Metropolitan Avenue in Bronx County, defendant allegedly grabbed Tyquala Smith by the arms and placed them behind her back and rubbed his crotch against her. As Ms. Smith pushed defendant away, he repeatedly came towards her yelling. Defendant also allegedly spat in Ms. Smith's face, struck her in the face with a closed fist, scratched her in the face, and pulled her hair out of her head. As a result of defendant's actions, Ms. Smith suffered substantial pain and soreness to the face, scratches to her nose and left cheek, and soreness and a large bald spot on her head.



The People offered defendant a plea to Forcible Touching with a sentence of fifteen (15) days jail and completion of a court-monitored substance abuse program. On March 13, 2015, defendant appeared before the Hon. Rodriguez-Morick and entered a plea of guilty to Forcible Touching and was sentenced to fifteen days jail and a conditional discharge. The matter was thereafter adjourned to April 10, 2015 for compliance.



After defendant completed his jail sentence, he asserts that he was contacted by an acquaintance, who indicated that he was in possession of a cell phone video recording of the alleged incident on February 27, 2105. Prior to this conversation, neither defendant nor his counsel was aware of the existence of this cell phone recording.



Defense counsel asserts that this cell phone recording depicts what appears to be the entire encounter between defendant and Ms. Smith. Contrary to the allegations set forth in the superseding information, the cell phone recording only shows defendant and Ms. Smith engaging in a verbal altercation which escalates into a physical altercation that ends with Ms. Smith sitting on top of defendant. Defense counsel avers that at no point in the recording is there any sexual contact between defendant and Ms. Smith.



After viewing the cell phone recording, defense counsel asserts that she contacted Assistant District Attorney ("ADA") Morabito regarding the existence and contents of the cell phone recording. In light of this newly discovered evidence, defense counsel asked ADA Morabito if she would consent to 1) defendant's withdrawal of his guilty plea to the charge of Forcible Touching and 2) defendant entering a plea of guilty to Assault in the Third Degree with the same previously imposed sentence of 15 days in jail and completion of a court-monitored substance abuse program. ADA Morabito indicated that the People would object to the withdrawal of the guilty plea.



Defendant urges this Court to exercise its discretion and permit him to withdraw his guilty plea. At the very least, defendant contends that the existence of the cell phone recording warrants the granting of an evidentiary hearing to determine whether the recording provides tenable evidence of possible innocence requiring vacatur of the guilty plea.



In opposition, the People note that defendant does not challenge the sufficiency of his plea. In fact, the People contend that the record demonstrates and defendant does not deny that his plea was knowingly, intelligently, and voluntarily made. The People also argue that according to the plain language of CPL § 440.10(g), vacatur of a judgment of conviction on the grounds of newly discovered evidence is expressly condition upon a guilty verdict after trial. Here, there was no such guilty verdict. Instead, defendant pled guilty and made factual allocution to each element of the offense of Forcible Touching prior to trial. In the absence of a guilty verdict after trial, the People aver that defendant's judgment of conviction cannot be vacated.



Should this Court overlook the procedural impropriety of the instant motion, the People argue that defendant's arguments for vacatur do not satisfy the requirements for the withdrawal of a guilty plea based upon newly discovered evidence. The evidence 1) must have been discovered after trial; 2) could not have been discovered prior to trial with due diligence; and 3) probably would have changed the outcome of the trial in defendant's favor. The People assert that this cell phone recording could have been discovered with due diligence before defendant entered his plea. In addition, the People argue that it cannot be said with any certainty that this video would have changed the finding of guilt as the video does not capture the moment in time during which defendant committed the offense charged.



Although withdrawal of a guilty plea lies in the sound discretion of the Court, a defendant cannot move to withdraw his guilty plea after the imposition of sentence. CPL § 220.60(3). Once sentence has been imposed and gone into execution, the Court lacks jurisdiction to permit a defendant to withdraw a plea of guilty. Dodd v. Martin, 248 NY 394 (1928); People v. Forlano, 19 AD2d 365 (1st Dept. 1963). Since defendant has already completed his jail sentence and is in the process of completing the court-monitored substance abuse program, defendant cannot withdraw his guilty plea pursuant to CPL § 220.60(3).



In order to obtain the relief requested, defendant must move to vacate his conviction pursuant to CPL § 440.10.



CPL § 440.10(1)(g) provides that:



At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: [n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence. (Emphasis added).



Even if this Court were to grant defendant's request for a hearing in order to provide him with an opportunity to show the cell phone recording, the outcome of such a hearing would have no bearing on the determination of the instant motion. Vacatur of a judgment of conviction based upon newly discovered evidence can only occur where the defendant has been found guilty after a trial. "The applicability of this provision is expressly conditioned upon the existence of a verdict of guilty rendered after trial. Thus, the absence of such a verdict precludes the relief provided thereunder. People v. Latella, 112 AD2d 321, 322 (2d Dept. 1985).



Notwithstanding the fact that defendant's request for relief is procedurally barred by CPL § 440.10(1)(g), defendant has also failed to satisfy the due diligence requirement. In his moving papers, defendant asserts that neither he nor his counsel was aware of the existence of the cell phone recording as he was unable to provide the names of any witnesses to the incident to assist in an investigation. However, defendant makes no showing as to what efforts were made, if any, to locate any witnesses prior to the entry of a guilty plea. "The fact that the defense did not discover the eyewitness sooner does not necessarily warrant the conclusion that he could not have been discovered earlier." Id. at 323.



Accordingly, defendant's motion for an order permitting him to withdraw his guilty plea is denied.



This constitutes the decision of this Court.



Dated:July 13, 2015

Bronx, New York

_______________________________



Hon. Armando Montano