Defendant moves to vacate his judgment of conviction for criminal possession of a controlled substance in the first degree. His principal claim is that the District Attorney did not timely disclose that the arresting officers had engaged in wrongdoing connected to the 30th Precinct corruption scandal of the 1990s, and that the untimely disclosure of that information prevented him from moving before sentencing to reopen his suppression hearing on the ground of newly-discovered evidence. Defendant's claim is a legally valid one, but this court rules that he forfeited that claim by absconding to avoid being sentenced under his guilty plea. Defendant's other claims do not entitle him to any post-judgment relief. Consequently, defendant's motion is denied.

Defendant's pretrial Mapp/Huntley hearing occurred on October 16, 1992 before a now retired Justice of this court. Police officers Henry Delarosa and James Velez testified for the prosecution. According to their testimony, on March 1, 1992, they were working in the 30th Precinct. Both officers were in uniform and in a marked radio patrol car. At 6:15 p.m., the officers stopped a livery cab for an alleged violation of the Vehicle and Traffic Law. Defendant was sitting in the backseat, behind the driver. According to Delarosa, defendant attempted to kick two kilograms of cocaine underneath the seat in front of him. Delarosa seized the cocaine and placed defendant under arrest.

In a written decision and order dated November 20, 1992, the court denied the motion to suppress. On January 8, 1993, defendant pleaded guilty to criminal possession of a controlled [*2]substance in the first degree, a class A-I felony offense, in exchange for a promise that he could withdraw that guilty plea and plead guilty to a class A-II felony offense. The promise was conditioned on, among other things, the defendant's appearing in court on the scheduled sentence date of February 19, 1993. Defendant failed to appear for sentencing on that date, and the court issued a bench warrant for his arrest.

Defendant remained a fugitive until September 14, 2000, when he was arrested on a new drug charge. When arrested, defendant provided the police with a false name. On April 29, 2002, defendant was sentenced on this case in accordance with the terms of his guilty plea. He was not allowed to withdraw his guilty plea and plead guilty to a class A-II felony offense. He was sentenced on the class A-I felony offense to an indeterminate prison term of from fifteen years to life.

After sentence, defendant was informed by the District Attorney that the two officers who had arrested him had been involved in the 30th Precinct corruption scandal. He filed a motion to vacate his judgment of conviction on the ground that the District Attorney had failed to disclose to the defense, at the time of the hearing and up until the time of sentence, information that both officers were suspected of wrongdoing in connection with that scandal. The motion alleged that Delarosa had been "implicated" in the 30th Precinct investigation and was later dismissed from the New York City police force. The motion also alleged that Velez had been convicted of three counts of perjury in the first degree for falsely testifying at the Grand Jury, at a pretrial suppression hearing, and at trial in the case of People v Monzon.

In response to defendant's motion, the District Attorney denied knowing, at the hearing or before the guilty plea, that either officer had engaged in any misconduct unrelated to defendant's case. The District Attorney also denied knowing that Delarosa or Velez had engaged in misconduct in defendant's case. Lastly, the District Attorney denied having knowledge of any corruption within the 30th Precinct until September 23, 1993, when police officer George Nova was first debriefed.

This court held a proceeding on February 16, 2006, to learn when the District Attorney learned that Delarosa and Velez had engaged in the misconduct that led to their being dismissed from the police force. Assistant District Attorney Andrew Heffner, Chief of the Corruption Unit for the District Attorney's Office, appeared at that proceeding, and supplied that information to this court.

At the proceeding, Heffner stated that the District Attorney learned about the arresting officers' misconduct in 1994 after police officers Joseph Walsh and Kevin Nannery of the 30th Precinct were arrested. Both officers cooperated with the District Attorney after being arrested and identified numerous police officers who had engaged in misconduct. As a result of their cooperation, Velez was convicted in 1995 of perjury for having testified falsely in a criminal case at the grand jury, at a pretrial suppression hearing, and at trial. Their cooperation also resulted in Delarosa's being found guilty, on September 5, 1995, at a Police Department hearing, of having made false statements in connection with an arrest made in 1993. Delarosa was terminated from employment as a police officer in 1995 or 1996.

Heffner acknowledged that the personnel records of Delarosa and Velez also contained allegations of misconduct for incidents that allegedly had occurred before defendant's pretrial hearing and guilty plea. These allegations were known to the District Attorney at the time of the [*3]pretrial suppression hearing, but they had not been substantiated and were separate from the allegations connected to the 30th Precinct scandal. Heffner explained that the Police Department conducts an investigation before determining whether to declare an allegation substantiated or unsubstantiated. The number and nature of these unsubstantiated allegations is not part of this record. This court has decided not to require the District Attorney to provide further data about those allegations.

Due process prohibits the prosecution from suppressing evidence favorable to the defense when that evidence is material either to guilt or to punishment.^[FN1] The rule against suppressing favorable evidence includes impeachment evidence for a witness whose reliability might well determine guilt.^[FN2] Under this rule, favorable evidence is material if there is a reasonable probability that the outcome of the trial would have been different if the favorable evidence had been disclosed.^[FN3] In New York, the prosecution's duty to disclose favorable evidence, such as impeachment evidence, extends to pretrial suppression hearings.^[FN4]

In this case, the record establishes that the District Attorney did not suppress, at the time of the pretrial hearing or before the guilty plea, evidence that the arresting officers had been implicated in the 30th Precinct corruption scandal. The District Attorney first learned about the corruption in the 30th Precinct in September of 1993, and the information received then did not implicate either officer who arrested defendant. The earliest time at which the District Attorney could have obtained evidence of misconduct by Delarosa or Velez was in early 1994, when law enforcement authorities debriefed the first of the two officers who would later provide information about the misconduct of Delarosa and Velez. The prosecution, thus, did not possess that information at the time of the pretrial suppression hearing or before defendant pleaded guilty.

Nevertheless, the District Attorney did learn about the officers' wrongdoing before defendant was sentenced in 2000. Defendant claims that the District Attorney's failure to disclose that evidence, when he was returned to court upon the warrant's being executed, prevented him from moving before sentencing to reopen the suppression hearing on the ground of new evidence. In deciding that claim, however, this court cannot overlook that defendant had absconded long before the District Attorney had obtained that information, and that defendant would have had no right to move to reopen the suppression hearing if he had been sentenced in 1993. This court therefore rules that defendant forfeited that right lest he receive a benefit from absconding before sentence.

A defendant who has pleaded guilty cannot move to reopen a suppression hearing on the [*4]ground of new evidence after the court imposes sentence. After pleading guilty, a defendant may move up until the time of sentence to reopen a pretrial suppression hearing on the ground of newly-discovered evidence.^[FN5] But no such motion is permitted after the court enters the judgment of conviction at sentencing.^[FN6] Vacatur of a judgment of conviction on the ground of newly-discovered evidence "is expressly conditioned upon the existence of a verdict of guilt after trial."^[FN7] A guilty plea bars post-judgment relief on that ground.^[FN8]

In this case, to allow defendant to reopen his suppression motion on the ground of newly-discovered evidence would be to reward him for not returning to court to be sentenced. If defendant had returned to court in 1993 and been sentenced, the arresting officers' corrupt conduct would have been discovered too late to provide a legal basis for moving under the CPL to reopen his suppression hearing. The only reason that defendant had not been sentenced on his guilty plea when the District Attorney learned about the officer's corrupt conduct was because he had delayed his sentencing by absconding.

Forfeiture analysis rests on the principle that public policy prohibits a defendant from benefitting from his own misconduct.^[FN9] For instance, a defendant's misconduct can result in the forfeiture of the right to be present at trial,^[FN10] the right to a decision on a pending speedy trial motion,^[FN11] the right to cross-examination,^[FN12] and even the right to counsel at trial.^[FN13] Notably, the First Department has held that a defendant who absconds can be denied the ameliorative benefit [*5]of a change in sentencing law that occurred after he had pleaded guilty and absconded before sentencing.^[FN14]

To avoid the unjust result of rewarding defendant for having absconded, this court rules that he forfeited his right to reopen the suppression hearing based on exculpatory impeachment evidence that the prosecution obtained after he had absconded. Although none of the forfeiture cases exactly fit this case, a forfeiture finding upholds the principle that the defendant may not benefit from his wrongdoing. A defendant who absconds to avoid sentencing cannot be allowed to relitigate a pretrial suppression hearing on the ground of newly-discovered evidence when he would not have had a legal basis to do so if he had returned to court to be sentenced as required by the guilty plea.

Defendant cannot invoke the common-law writ of error coram nobis to vacate his judgment of conviction on the ground of newly-discovered evidence. Even if the adoption of CPL Article 440 did not abolish the common-law writ of error coram nobis, the only precedent for vacating a judgment entered upon a guilty plea on the ground of newly-discovered evidence is when the new evidence supports a claim of factual innocence.^[FN15] Defendant makes no such claim here; he claims that the new evidence serves as general impeachment of the police testimony about how the police seized the cocaine from the livery cab. The legality of the police conduct is wholly separate from whether defendant possessed the cocaine as he admitted in the guilty plea. No question exists here that defendant knowingly possessed the cocaine on March 1, 1992.

Defendant is not entitled to post-judgment relief on the ground that the judgment was procured by fraud in the form of police perjury at the suppression hearing.^[FN16] Defendant offers no direct evidence that the police officers lied at the suppression hearing in this case. He contends only that their corrupt conduct and lying in other cases circumstantially proves that they had lied in his case. But evidence of wrongdoing in other cases does not, standing alone, tend to substantiate that the police officers actually lied at defendant's suppression hearing.^[FN17]

Lastly, the District Attorney had no duty to disclose the unsubstantiated allegations of misconduct that had been filed against the officers at the time of the suppression hearing. These allegations were unsubstantiated because they either were under investigation by the Internal Affairs Bureau or had been determined to be unfounded after an investigation. The District [*6]Attorney has no duty to disclose allegations of police misconduct until after the Internal Affairs Bureau has had a reasonable period of time to determine whether the charges are founded. Anything less potentially jeopardizes the Internal Affairs Bureau's ability to investigate allegations of police misconduct. And after the Internal Affairs Bureau has determined the allegation to be unfounded, the allegation provides no more of a basis for conducting cross-examination than does a criminal allegation that ends in an acquittal or a dismissal on the merits.^[FN18] Consequently, the District Attorney did not violate the Brady rule by not disclosing those allegations to defendant.

Accordingly, defendant's motion is denied.

Dated: July 14, 2006

J.