Defendant John Cocuzza stands convicted upon his plea of guilty, entered May 9, 2016, to one count of disorderly conduct (PL § 240.20 [7]). This plea was entered in full satisfaction of a felony complaint charging defendant with 17 counts of tampering with public records in the first degree (PL § 175.25, "D" felonies), 17 counts of falsifying business records in the second degree (PL § 175.03 [3], "A" misdemeanors), 17 counts of tampering with public records in the second degree (PL § 175.20, "A" misdemeanors), and 17 counts of official misconduct (PL § 190.00 [2]), "A" misdemeanors). Those charges stemmed from allegations that defendant, while working at the Rockland County Jail as a corrections officer, falsified records to reflect he conducted physical checks of inmates when he had not in fact conducted those checks. By Notice of Motion and Affirmation dated November 2, 2020, defendant moves to vacate the judgment pursuant to CPL § 440.10. The People oppose the motion.

Criminal Procedure Law § 440.10 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, as raised here by defendant in his moving papers, on the grounds that: (1) "[t]he judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or on behalf of a court or a prosecutor"; and (2) "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or the United States." CPL § 440.10 (1)(b) and CPL § 440.10 (1)(h). A CPL § 440.10 motion is not a vehicle for a second appeal or a substitute for an appeal not taken. See People v. Cooks, 67 NY2d 100, 103, 500 N.Y.S.2d 503 (1986); CPL §§ 440.10 (2)(a) and (2)(c).

CPL § 440.10 (2) sets forth the circumstances under which a court must deny a motion to [*2]vacate a judgment. A motion to vacate a judgment must be denied when the judgment is: (1) appealable at the time of the making of the motion and sufficient facts appear on the record to permit adequate review; or (2) notwithstanding the existence of a sufficient factual record, no appellate review occurred owing to the defendant's unjustifiable failure to raise such ground on appeal. CPL §§ 440.10 (2)(a) and (2)(c). CPL § 440.10 (3) also establishes a court's permissive authority to deny the motion. A motion to vacate a judgement may be denied, as relevant here, if facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing an adequate basis for review of such ground or issue upon an appeal from the judgment and the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal. CPL § 440.10 (3)(a).

Where the motion to vacate is not procedurally barred by the applicable provisions of CPL § 440.10 (2) or CPL § 440.10 (3), the court must consider the motion on the merits. CPL § 440.30 (2)(b); People v. Harris, 109 AD2d 351, 491 N.Y.S.2d 678 (2d Dept. 1985), lv. denied, 66 NY2d 919, 498 N.Y.S.2d 1034 (1985)(Table). The court may upon reaching the merits deny the motion without a hearing if the moving papers: (1) do not allege any ground constituting a legal basis for the motion.; or (2) do not contain sworn allegations substantiating or tending to substantiate all essential facts. CPL §§ 440.30 (4)(a) and (4)(b); People v. Dogan, 37 NY3d 1007, 152 N.Y.S.3d 674(Mem) (2021); People v. Wright, 27 NY3d 516, 35 N.Y.S.3d 286 (2016). The court may also deny the motion summarily if an essential factual allegation "(i) is contradicted by a court record or is made solely by the defendant and is unsupported by any other affidavit or evidence and (ii) under these and all other circumstances attending the case, there is no reasonable possibility that such allegation is true. CPL § 440.30 (4)(d).

In his moving papers the defendant advances two claims. He first contends that his guilty plea was procured by duress under CPL § 440.10 (1)(a). Although not directly stated, defendant also contends, in effect, that his guilty plea was unconstitutionally entered under CPL § 440.10 (1)(h) in that it was not knowing, intelligent and voluntary. Defendant next asserts his guilty plea was procured in violation of his First Amendment rights.

A. Duress Claim and Voluntariness of the Plea

Defendant's essential argument is that his plea was involuntary because it was coerced by the prosecution by duress.^[FN1] At the outset, this claim is procedurally barred. A guilty plea ordinarily terminates a criminal case. People v. Taylor, 65 NY2d 1, 489 N.Y.S.2d 152 (1985). Defendant could have raised this claim on direct appeal and failed to do so. The record of the guilty plea contains a full allocution and defendant could have challenged the voluntariness of his plea on appeal based on the record, and by unjustifiably failing to do so defendant is barred from challenging the voluntariness of that plea in a CPL § 440.10 motion. CPL § 440.10 (2)(c).

Defendant's primary claim is that his guilty plea was procured under duress imposed upon him by the Rockland County District Attorney charging him with 61 crimes, 17 of which were felonies, at the "behest" of Rockland County Sheriff Louis Falco. Defendant also faced [*3]disciplinary charges filed against him by the Sheriff's Department. He adds that stress, family discord, and financial pressure caused by the criminal and administrative charges coerced his guilty plea, including his agreement to resign from his position as a Rockland County corrections officer. The backdrop to all this is defendant's allegation that Falco sought to punish him for supporting his electoral opponent by charging him, or, more accurately, inducing the Rockland County District Attorney to file criminal charges against him. Defendant claims that this constituted duress on the part of the prosecution under CPL § 440.10 (1)(a) and, by extension, rendered his plea involuntary under CPL § 440.10 (1)(h).

Defendant's allegation that his conviction and guilty plea was procured by duress and thus involuntary may also be barred under CPL § 440.10 (1)(c) as the facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record providing a basis for review. Clearly, the pressure and stress cited by defendant existed at the time of the plea and, as defendant states in his affidavit, he was well aware that in the past other officers had engaged in the same conduct he did and had not been disciplined or charged with crimes. (This fact links into defendant's selective prosecution claim, which will be addressed infra). Thus, defendant was positioned to raise this issue with the court via motion or in open court before or during his guilty plea. He failed to do so. Moreover, defendant did not file this motion until nearly 4 ½ years after his guilty plea, and almost four (4) years after he sued Sheriff Falco and Rockland County on the same grounds. ^[FN2] This absence of due diligence warrants denial of defendant's motion. People v. Friedgood, 58 NY2d 467, 462 N.Y.S.2d 406 (1983)(inadequate explanation for the three-year delay in bringing the motion is insufficient, as a matter of law, to satisfy the due diligence requirement of CPL § 440.10 [3][a]); People v. Holguin, 216 AD3d 436, 188 N.Y.S.3d 49 (1st Dept. 2023)(defendant failed to establish that he made his motion with due diligence after the discovery of new evidence given the delay of years involved); see also, People v. Cuadrado, 9 NY3d 362, 850 N.Y.S.2d 375 (2007).

On the merits, Defendant's claim that his guilty plea was involuntary also must be denied. The record clearly demonstrates defendant knowingly, intelligently and voluntarily pleaded guilty and received a very favorable plea agreement. Defendant pleaded guilty to one count of disorderly conduct (Penal Law § 240.20 [7]), a noncriminal violation, to cover 17 felony and 51 misdemeanor charges. Defendant also agreed to resign his position as a corrections officer, which he did prior to his plea, and the Court sentenced him to a $125.00 fine and a mandatory $125.00 surcharge.

The Court fully allocuted defendant who affirmed he had enough time to discuss the case with his attorney. Defendant then agreed to waive his rights by pleading guilty, including his right: (1) to a trial; (2) to cross-examine and challenge the prosecution's witnesses; (3) to call witnesses on his own behalf; (4) to challenge any physical or scientific evidence; and (5) to [*4]testify on his own behalf. Defendant's plea allocution also shows he was factually guilty of falsifying records ^[FN3] and, significantly, no one threatened him or forced him to plead guilty, or that any other promises were made to him other than those placed on the record. Defendant's plea colloquy clearly demonstrates the voluntariness of the plea, especially given the dismissal of all 68 criminal charges. People v. Brown, 235 AD2d 563, 652 N.Y.S.2d 332 (3d Dept. 1997); People v. Santiago, 227 AD2d 657, 641 N.Y.S.2d 471 (3d Dept. 1996).

Additionally, defendant's moving papers do not contain sufficient sworn allegations substantiating or tending to substantiate all the essential facts as required by CPL § 440.30 (1). See also CPL § 440.30 (4)(b). Defendant claims the district attorney coerced his plea by duress, but only presents that claim in a conclusory fashion in his self-serving affidavit; that claim is unsupported by any other affidavit or evidence and is directly contradicted by defendant's on-the-record guilty plea and allocution. Defendant presents no evidence that the district attorney's office engaged in any form of improper coercion at the behest of Falco or that Falco improperly induced the district attorney to prosecute him. Hence, defendant's motion on this ground is denied. People v. Dorgan, supra; People v. Wright, supra.

In another unsupported conclusory allegation defendant claims, as set forth in his affidavit, that he was pressured to plead guilty because he had trouble paying for his attorney, he was concerned for his wife, who also worked at the jail, and that the "whole situation was causing a tremendous stress and discord amongst his family." Importantly, defendant provides no evidence as to threats to, or retaliation against, his wife. As to allegations of financial and family stress caused by the charges, that stress is no different than the types of stress criminal defendants face in every criminal case. The pressure to which defendant now contends he was subjected to amounts to the type of situational coercion faced by almost all defendants offered a plea deal and does not undermine the voluntariness of the guilty plea. People v. Miazga, 171 AD3d 1358, 100 N.Y.S.3d 389 (3d Dept. 2019); People v. Sparbanie, 158 AD3d 942, 71 N.Y.S.3d 669, lv. denied, 31 NY3d 1087 (2018). The same holds true for defendant's resignation of his corrections officer position, a common plea bargain provision for any public official charged with crimes relating to their employment. Therefore, defendant's motion to vacate his judgment on the ground it was involuntary and procured by duress is denied.

B. Defendant's First Amendment Claim

Defendant's First Amendment claim is also procedurally barred because it is record based and could have been raised on appeal or, with due diligence, could readily have been made to appear on the record before the trial court. CPL §§ 440.10 (2)(c) and (3)(a). See People v. Cooks, supra. Defendant, at a minimum, strongly suspected he was being singled out because of his opposition to the re-election of Falco, and he and his attorneys had ample opportunity to follow up on those suspicions. Thus, defendant's failure to appeal or move to vacate his guilty plea waives both his First Amendment rights, and his motion to vacate his judgment under CPL § 440.10 is barred. People v. Alexander, 19 NY3d 203, 947 N.Y.S.2d 386 (2012); People v. Miller, 102 AD3d 813, 814, 957 N.Y.S.2d 890 (Mem) (2d Dept. 2013).

Moreover, defendant's First Amendment claim — that he was prosecuted for offenses committed by other correction officers who were not prosecuted because he publicly supported [*5]Falco's election opponent — is a selective prosecution defense. As is the case throughout defendant's motion, this is yet another unsupported conclusory allegation of prosecutorial misconduct and retaliation and is insufficient to require an evidentiary hearing. CPL § 440.30 (4)(b). Most importantly, by pleading guilty defendant waived all factual defenses involving allegations of vindictive or selective prosecution (see People v. Rodriguez, 79 AD2d 539, 433 N.Y.S.2d 584 (1st Dept. 1980), order aff'd, 55 NY2d 776, 777, 447 N.Y.S.2d 246 [1982]), or allegations of prosecutorial misconduct (see People v. Di Raffaele, 55 NY2d 234, 240, 448 N.Y.S.2d 448 [1982]). See also, People v. Stephens, 122 AD2d 606, 505 N.Y.S.2d 280 (4th Dept. 1986). Consequently, defendant's CPL § 440.10 application must also be denied as his guilty plea waived his right to challenge his conviction based on selective prosecution or violation of his First Amendment rights. People v. Chevalier, 226 AD2d 925, 641 N.Y.S.2d 433 (3d Dept. 1996).

Parenthetically, although not explicitly raised by defendant, his citing to his federal civil case before Judge Briccetti is in effect a claim of newly-discovered evidence, whether phrased that way or not. First, Briccetti's Opinion and Order is a denial of a motion for summary judgment, not a dispositive finding that defendant's First Amendment rights had been violated. It simply indicates there is a factual issue and does not find any specific fact. In addition, Briccetti's ruling is based on information conveyed to him, at least in part, from defendant and from an arbitration ruling to which defendant was a party. Hence, the ruling itself does not constitute newly discovered evidence.

Critically, any claim of newly discovered evidence expressly applies only to a verdict of guilty after trial. CPL § 440.10 (g). Here, defendant pleaded guilty and therefore any claim that defendant's conviction should be vacated based on Briccetti's ruling or any other asserted newly discovered evidence must be denied.

Lastly, as was the case with defendant's duress claim, he did not file this motion until nearly 4 ½ years after his guilty plea, and almost four (4) years after he sued Falco. This absence of due diligence warrants denial of defendant's motion. People v. Friedgood, supra; People v. Holguin, supra.

C. Conclusion

For the reasons stated, defendant's motion to vacate the judgment of conviction pursuant to CPL § 440.10 is denied in its entirety, without a hearing.

The foregoing constitutes the decision and order of the Court.