PEOPLE v. DELAROSA (2008)

 Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15[4] ).   Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus failed to preserve for our review his challenge to the voluntariness of his plea (see People v. Aguayo, 37 A.D.3d 1081, 829 N.Y.S.2d 350, lv. denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660).   We agree with defendant that, by pleading guilty, he did not forfeit his contention that the People failed to disclose exculpatory evidence prior to the entry of his Alford plea (see generally People v. Hansen, 95 N.Y.2d 227, 230-231, 715 N.Y.S.2d 369, 738 N.E.2d 773).   “ ‘[T]he law ․ appears to be settled ․ [that] Brady material must be disclosed in time for its effective use at trial ․ or at a plea proceeding’ ” (People v. Reese, 23 A.D.3d 1034, 1036, 803 N.Y.S.2d 852, lv. denied 6 N.Y.3d 779, 811 N.Y.S.2d 347, 844 N.E.2d 802, quoting United States v. Coppa, 267 F.3d 132, 135 [emphasis omitted] ), and it would undermine Brady's disclosure requirements if a defendant were deemed to have waived a Brady issue by entering an Alford plea without the knowledge that the People possessed exculpatory evidence.   Nevertheless, we conclude that there was no Brady violation based on the prosecutor's failure to provide defendant with the written statement of a witness inasmuch as it was duplicative of comments made by the witness during a 911 call that was recorded and disclosed to defendant before he entered his plea.  “Brady does not ․ require prosecutors to supply a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature” (People v. Doshi, 93 N.Y.2d 499, 506, 693 N.Y.S.2d 87, 715 N.E.2d 113;  see People v. LaValle, 3 N.Y.3d 88, 110, 783 N.Y.S.2d 485, 817 N.E.2d 341;  People v. Terry, 19 A.D.3d 1039, 1040, 797 N.Y.S.2d 670, lv. denied 5 N.Y.3d 833, 804 N.Y.S.2d 48, 837 N.E.2d 747).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: