PEOPLE v. CORDERO (2024)

Judgment, Supreme Court, New York County (Neil E. Ross, J.), rendered August 8, 2019, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fourth degrees, and sentencing him to an aggregate term of five years’ probation, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  There is no basis for disturbing the jury's credibility determinations.  Defendant's participation in the drug transaction was established by evidence that he acted as a lookout during the sale (see People v. Fuentes, 246 A.D.2d 474, 474, 668 N.Y.S.2d 184 [1st Dept. 1998], lv denied 91 N.Y.2d 941, 671 N.Y.S.2d 721, 694 N.E.2d 890 [1998]).

The absence of defendant's counsel from the plea proceeding and related discussions of his codefendant did not deprive defendant of his constitutional right to counsel (see People v. Montgomery, 293 A.D.2d 369, 370, 740 N.Y.S.2d 332 [1st Dept. 2002], lv denied 98 N.Y.2d 712, 749 N.Y.S.2d 9, 778 N.E.2d 560 [2002];  see also People v. Bogan, 78 A.D.3d 855, 911 N.Y.S.2d 166 [2d Dept. 2010], lv denied 16 N.Y.3d 742, 917 N.Y.S.2d 623, 942 N.E.2d 1048 [2011]).  Contrary to defendant's contention, his counsel did not “walk out” of the joint hearing in the middle of the calendar call, but rather left the courtroom only after the court had effectively adjourned defendant's case for a new trial date, subsequent to defendant's declining of a plea offer.  Defendant was not entitled to an adjournment to have counsel appear when the codefendant made statements that purportedly exculpated defendant during the plea discussion.  Defendant's due process claims regarding the codefendant's plea are unavailing, as it was not fundamentally unfair for the court to require the codefendant to allocute to acting in concert with his codefendants as a condition of a lower plea offer (see People v. Shervington, 25 A.D.3d 628, 629, 807 N.Y.S.2d 144 [2d Dept. 2006], lv denied 6 N.Y.3d 818, 812 N.Y.S.2d 457, 845 N.E.2d 1288 [2006]).  Further, there was reason to believe that the exculpatory statements were false.

The prosecutor fulfilled her obligations under (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963]).  “To make out a successful Brady claim, a defendant must show 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. Garrett, 23 N.Y.3d 878, 885, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014] [internal quotation marks omitted]).  The prosecutor timely disclosed the exculpatory statements 15 months before the commencement of defendant's trial (see People v. LaValle, 3 N.Y.3d 88, 111, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004] [disclosure timely where defense had one week before trial to subpoena witnesses]).  In any event, the statements were not material.