PEOPLE v. ARIAS (2023)

Judgment, Supreme Court, New York County (Gregory Carro, J. at dismissal motion and related proceedings;  Thomas Farber, J. at plea and sentencing), rendered December 8, 2017, convicting defendant of manslaughter in the first degree, and sentencing him to a term of five years, unanimously affirmed.

By pleading guilty, defendant forfeited review of his claims that the evidence presented to the grand jury was legally insufficient, and that the grand jury proceedings were impaired by the prosecutor's failure to disclose to the grand jury a witness's prior inconsistent testimony (see People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000];  People v. Hernandez, 198 A.D.3d 487, 152 N.Y.S.3d 592 [1st Dept. 2021], lv denied 37 N.Y.3d 1146, 159 N.Y.S.3d 349, 180 N.E.3d 513 [2021]).  The alleged error did not rise to the level of impairment of the integrity of the grand jury proceedings.  This was not a case like People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447 (1984), where the indictment was based solely on perjured testimony.  “Inconsistency in the evidence does not warrant a conclusion that perjury was committed” (People v. Fisher, 244 A.D.2d 191, 191, 664 N.Y.S.2d 277 [1997], lv denied 91 N.Y.2d 891, 669 N.Y.S.2d 6, 691 N.E.2d 1032 [1998]), and defendant has not explained why testimony by a witness who has made a prior inconsistent statement could not be considered “competent” evidence to support an indictment.

Moreover, the only relief defendant requests is reduction of his conviction to the lesser included offense of second-degree assault, and he expressly requests this Court to affirm his conviction if it does not grant that remedy.  Since we do not find that reducing the conviction would be the appropriate remedy, we affirm on this basis as well (see e.g. People v. Teron, 139 A.D.3d 450, 29 N.Y.S.3d 175 [1st Dept. 2016]).

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]), which forecloses review of his excessive sentence claim.  In any event, we perceive no basis for reducing the five-year term of postrelease supervision.