County Court, Clinton County, April 20, 2021

Noreen McCarthy, Keene Valley, for defendant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nichole Sands of counsel), for plaintiff.

On February 24, 2017, the Clinton County grand jury indicted defendant Rudolph Franklin charging him with robbery in the second degree, in violation of Penal Law § 160.10 (2) (b); criminal use of a firearm in the second degree, in violation of Penal Law § 265.08 (2); and grand larceny in the fourth degree, in violation of Penal Law § 155.30 (1). On May 24, 2017, defendant pleaded guilty to robbery in the second degree, criminal use of a firearm in the second degree and petit larceny in satisfaction of the indictment. On July 18, 2017, defendant was sentenced to a determinate term of 14 years in state prison, followed by five years of postrelease supervision.

By notice of motion dated February 3, 2021, defendant Rudolph Franklin seeks, among other things, an order pursuant to Criminal Procedure Law § 440.10 (1) (h) vacating said judgment based upon the People's alleged Brady violations. In support of his motion, defendant submitted a memorandum of law dated February 3, 2021; two affirmations of his current attorney, Noreen McCarthy, Esq., dated February 3, 2021; an affidavit of Eric Schulz dated April 6, 2020; an affirmation of defendant's trial counsel, William Meconi, Esq., dated October 6, 2020; and an affidavit of defendant, dated September 9, 2020. In opposition to the motion, the People submitted an affirmation of Assistant District Attorney Nichole Sands, Esq., dated March 18, 2021. Attorney McCarthy filed an untimely reply affirmation which was not considered by the court.

The People allege that during the evening of December 11, 2016, defendant and Eric B. Schulz used handguns when robbing a convenience store located in downtown Plattsburgh, New York. On December 14, 2016, defendant was arrested in connection with the armed robbery. On March 1, 2017, the People served voluntary discovery regarding this action, including a CPL 710.30 notice, which stated, among other things, that the People intended to offer the testimony of Eric Schulz,{**72 Misc 3d at 212} who would identify defendant as being present at the scene of the crime. As part their voluntary disclosure, the People provided defendant with additional information indicating [*2]that Mr. Schulz made statements inculpating defendant with respect to the armed robbery. Mr. Schulz is the only witness specified to date by the People who can positively identify defendant as being one of the perpetrators of the robbery.

Defendant alleges that the People possessed and failed to disclose to defendant prior to the time that he entered his plea three items of Brady information: (1) Mr. Schulz's handwritten note dated February 23, 2017, in which Mr. Schulz states that he did not wish to cooperate with the District Attorney's Office; (2) a statement made by Mr. Schulz, on the record in the courtroom on April 4, 2017, in which Mr. Schulz states "any and all statements I made were false"; and (3) a statement made by Mr. Schulz, on the record in the courtroom on May 23, 2017, in which Mr. Schulz states that he acted alone in committing the robbery and that defendant was not involved.

With respect to the first item, Mr. Schulz states in his affidavit that he gave the note to his trial attorney, Matthew Waite, Esq., with instructions to deliver it to the Clinton County District Attorney's Office. Although Attorney McCarthy states in her affidavit that Attorney Waite confirmed delivery to her, there is no sworn statement from Attorney Matthew Waite confirming the delivery of the note to the District Attorney's Office. Thus, defendant failed to provide any proof from any individual who had firsthand knowledge that Mr. Schulz's letter was actually delivered to the District Attorney's Office. Furthermore, defendant offers no explanation as to why he did not provide an affidavit from Attorney Waite confirming delivery. On the other hand, the People failed to file an affidavit from anyone who was employed by the District Attorney's Office at the time that this case was pending who had firsthand knowledge of the prosecution of this case. If the resolution of this motion turned on whether or not this note was actually delivered to the District Attorney's Office, the court would conduct an evidentiary hearing. (See CPL 440.30 [5].) The court finds that it need not resolve that factual issue given the undisputed nature of the second and third items listed above. (See CPL 440.30 [3].)

With respect to the second item, it is undisputed that on April 4, 2017, Mr. Schulz stated in the open courtroom in the presence of an assistant district attorney that "any and all {**72 Misc 3d at 213}statements I made were false." It is undisputed that the People did not disclose Mr. Schulz's statement to defendant prior to defendant's guilty plea.

With respect to the third item, it is undisputed that on May 23, 2017, Mr. Schulz stated in the open courtroom in the presence of an assistant district attorney that he acted alone when committing the robbery and that defendant was not involved. At that time, the court expressly asked Mr. Schulz, "Was Rudy Franklin also involved in the robbery?" And Mr. Schulz replied, "No, Your Honor." At that time, the assistant district attorney present stated that Mr. Schulz's statement is "inconsistent with the evidence offered to the Grand Jury and the defendant's statement under oath at the police department in the presence of his lawyer." (See aff of defendant, exhibit 8, at R-46.) It is undisputed that the People did not disclose Mr. Schulz's statement to defendant prior to defendant's guilty plea.

CPL 440.10 (1) (h) provides:

"[a]t 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: . . .

"(h) [t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States."

For the reasons that follow, the court finds that defendant has shown that the judgment in this case was obtained in violation of his rights under the New York State and United States [*3]Constitutions, and accordingly, the judgment must be vacated. It is axiomatic under New York State and federal jurisprudence that prosecutors have a duty to disclose to the defense exculpatory material in their control. (People v Simmons, 36 NY2d 126, 131 [1975], citing Giglio v United States, 405 US 150, 153-154 [1972]; Brady v Maryland, 373 US 83, 87 [1963].) Based upon requirements of due process and fairness, the so-called Brady rule prohibits prosecutors from suppressing evidence favorable to the defense which is material to either guilt or to punishment. (People v Garrett, 23 NY3d 878, 884 [2014].)

However, the mere breach of the broad duty of a prosecutor to disclose favorable evidence will not offend due process unless all of the elements of a Brady violation are met. (Id. at 884-885, citing Strickler v Greene, 527 US 263, 281 [1999].) To be successful on a Brady claim, courts have repeatedly held{**72 Misc 3d at 214} that a defendant must meet the following standard: "(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." (Id. [citations omitted]; see also People v Fuentes, 12 NY3d 259, 263 [2009]; People v Mangarillo, 152 AD3d 1061 [3d Dept 2017].)

Elaborating further, courts have held that the "favorability" element is established if the undisclosed evidence tends to either show that defendant is not guilty or if it impeaches a government witness (People v Garrett, 23 NY3d at 886). The court finds that both of Mr. Schulz's open court statements were "favorable" to defendant, in that they were a combination of exculpatory evidence and impeachment evidence. This is so because the statements tended to establish defendant's innocence and tended to be contrary to Mr. Schulz's earlier statements to police, and thus useful for credibility purposes.

With regards to the "suppression" element, both a negligent or a deliberate nondisclosure may deny due process, and good faith will not rescue even a negligent failure to disclose unrequested, highly material, exculpatory evidence (People v Giuca, 33 NY3d 462, 473 [2019]). Both of Mr. Schulz's statements were made in the presence of an assistant district attorney. Indeed, his May 23, 2017 statement was made in the presence of the assistant district attorney who was prosecuting defendant's case. Thus, the People had exculpatory/impeachment evidence in their control and custody such that the duty to disclose was triggered. The failure to abide by this duty, whether deliberate or negligent, amounted to suppression of evidence favorable to defendant.

Finally, with regard to the "materiality" element, in the absence of a specific request for the undisclosed material by defendant, as is the case in the instant motion, materiality is established if it can be said that there is a "reasonable probability" that the result would have been different had the evidence been disclosed, which, in the context of a guilty plea, requires inquiry into whether or not defendant would have decided to forgo a trial and enter a guilty plea had the evidence been disclosed. (See People v Giuca, 33 NY3d at 473-474; see also People v Mangarillo, 152 AD3d at 1065; People v Kinney, 107 AD3d 563, 564 [1st Dept 2013].)

With respect to the "materiality" element, the People claim that the evidence against defendant was so overwhelming that{**72 Misc 3d at 215} there was no reasonable probability that the result in this proceeding, defendant's decision to plead guilty, would have been different had the exculpatory/impeachment evidence been disclosed. The court disagrees. The People's proffered evidence against defendant, excluding Mr. Schulz's testimony, consisted of a store employee who gave a general physical description of the perpetrators, one of which generally matched defendant; a GPS monitoring bracelet worn by defendant which placed defendant within 300 [*4]feet of the crime scene at about the time the crime was committed; store photographs of the perpetrators, faces partially obscured; video footage of a vehicle in the vicinity of the robbery that matched the body type of defendant's vehicle; the fact that defendant was stopped by investigating detectives on the day following the crime and was observed to have a large amount of currency consisting of $10 and $20 bills in his wallet; and the fact that defendant referred investigating detectives to alibi witnesses, none of whom confirmed being with defendant on the night in question.

While the circumstantial evidence in this matter can be fairly characterized as persuasive, this court is compelled to conclude that had defendant known of Mr. Schulz's statement, there exists a reasonable probability that defendant would have exercised his right to a trial rather than entering a guilty plea. The store employee's description was vague. The store's photographs of the perpetrators were fuzzy and of limited value with respect to identification. The video footage of a vehicle in the vicinity of the robbery that matched defendant's vehicle is also of limited value given that the People have not identified any particularly unusual characteristics of defendant's vehicle. The fact that defendant operates a taxi within the City of Plattsburgh lessens the value of the GPS readings because it would be very common for defendant to be in the downtown area while working. Similarly, the fact that defendant is a taxi driver lessens the significance of the fact that he was found with several $10 and $20 bills in his possession at the time that he was stopped. To be clear, the court is of the opinion that the evidence proffered by the People may be legally sufficient to support a conviction and a reasonable jury could convict upon the proffered evidence. But the evidence is not overwhelming, and an experienced defense attorney might well advise his client that without Mr. Schulz's testimony, defendant stands a reasonable possibility of succeeding at trial. Furthermore, when evaluating the same evidence and believing{**72 Misc 3d at 216} that Mr. Schulz intends to testify against defendant at trial, an experienced defense attorney may well advise his client that he has no reasonable possibility of success at trial. In short, whether or not the People have an eyewitness that positively identifies defendant as the perpetrator of the robbery is critically important to the decision as to whether or not the plea offer should be accepted.

While the court does not give significant weight to self-serving or conclusory statements made in affidavits, defendant clearly states in his affidavit of September 9, 2020, that he would not have pleaded guilty had he known of the Brady evidence.

Based on the foregoing, defendant has successfully shown Brady violations which resulted in a deprivation of due process and a judgment being obtained against him in violation of his rights under both the Federal and New York State Constitutions. As a result of all of the foregoing, defendant's plea of guilty was rendered invalid as it was not made knowingly, voluntarily and intelligently. (See Brady v United States, 397 US 742, 747 [1970], citing Boykin v Alabama, 395 US 238, 242 [1969].)

The court has reviewed the various arguments advanced by the People, including but not limited to: the instant motion being procedurally barred; that recantation evidence is an unreliable form of evidence (see People v Mangarillo, 152 AD3d at 1065); and that the material suppressed was "nonevidentiary" and therefore due process concerns were not implicated (see People v Jones, 44 NY2d 76 [1978]). To the extent not specifically addressed herein, the court found these arguments to be either without merit, or not affecting the court's ultimate conclusions. Further, in light of the above findings and determinations, the court need not address defendant's other arguments.

Accordingly, it is hereby ordered that pursuant to CPL 440.30 (3), defendant's motion dated February 3, 2021, is granted, without hearing, for the reasons set forth herein and on the grounds set forth in CPL 440.10 (1) (h), to wit, that the underlying judgment was obtained in violation of defendant's rights under the New York State and United States Constitutions; and it is further ordered that the underlying judgment, comprised of the conviction and sentence imposed thereon, is hereby vacated and the Office of the Clerk of the Court is{**72 Misc 3d at 217} hereby directed to take all actions necessary to effectuate said vacatur.