PEOPLE v. DILIONE (2026)

Judgment, Supreme Court, New York County (James Burke, J.), rendered February 6, 2019, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him to a term of 23 years;  and order, same court (Abraham Clott, J.), entered on or about December 11, 2023, which denied his first CPL 440.10 motion to vacate judgment;  and order, same court (Abraham Clott, J.), entered on or about February 25, 2025, which denied his second CPL 440.10 motion to vacate judgment, unanimously affirmed.

The court providently denied without a hearing defendant's CPL 440.10 motion in which he claimed that the integrity of the grand jury proceedings was impaired by prosecutorial misconduct.  This claim was procedurally barred, because defendant filed a prior CPL 440.10 motion in which he could have raised the same claim (see CPL 440.10[3][c];  People v Holguin, 216 AD3d 436, 437–438 [1st Dept 2023], lv denied 40 NY3d 935 [2023] ).  As an alternative holding, there was no impairment of the integrity of the grand jury proceeding warranting dismissal (see CPL 210.35[5];  People v Darby, 75 NY2d 449, 455 [1990];  People v Green, 178 AD3d 603, 604 [1st Dept 2019], lv denied 35 NY3d 970 [2020] ), the murder charge was supported by ample competent evidence (see People v Crowder, 44 AD3d 330, 330 [2007], lv denied 9 NY3d 1005 [2007] ), and “it cannot be said that the only grand jury evidence connecting defendant with the murder was later proven to be false or incorrect” (Green, 178 AD3d at 604;  compare People v Pelchat, 62 NY2d 97, 106–107 [1984], with Green, 178 AD3d 603).

The court also providently exercised its discretion in denying without a hearing defendant's motion in which he asserted that the People suborned perjury at the Huntley hearing by eliciting from the detectives that they were conducing a missing person investigation until the victim's body was found, and that his counsel was ineffective in impeaching the People's witnesses and in litigating the emergency exception.  That exception permits the police to question a defendant after his right to counsel has attached (see People v Kimes, 37 AD3d 1, 16 [1st Dept 2006], lv denied 8 NY3d 881 [2007] ).  To apply the emergency doctrine, the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for assistance to protect life or property, and the search must not be primarily motivated by intent to arrest and seize evidence (People v Doll, 21 NY3d 665, 670–671 [2013], cert denied 572 US 1022 [2014] ).  Here, as the motion court and the suppression court concluded, credible police testimony established that until the victim's body was found, the police viewed their investigation into the victim's disappearance primarily as a missing person investigation.  The detective's testimony at the hearing was consistent with his testimony before both grand juries and his police report and other police documents that his main purpose in speaking with defendant was to obtain information which would enable the police to find the victim alive.  Even if the police believed that the victim might have been murdered and dismembered, it remained objectively reasonable (see Doll, 21 NY3d at 670) at that early stage of the investigation for the detectives to act on the possibility that the victim might still be alive.  The bloody clothing and other items found in garbage bags heightened the urgency to find the victim as quickly as possible and provided justification for the police to believe that there was an emergency, even if they did not know its exact nature (see generally People v Mitchell, 39 NY2d 173, 178 [1976], cert denied 426 US 953 [1976] ).  We find that defendant received effective assistance of counsel at the suppression hearing under state and federal standards (see People v Benevento, 91 NY2d 708, 713–714 [1998];  Strickland v Washington, 466 US 668 [1984] ).

The court providently exercised its discretion in denying defendant's motion to withdraw his guilty plea, upon his written motion submitted by his new counsel the day before his scheduled sentencing proceeding and supplemented with an oral statement.  Contrary to defendant's claim, supported only by defendant's own affidavit, that his prior counsel's misadvice coerced him to plead guilty, the record establishes that defendant knowingly, intelligently, and voluntarily pleaded guilty after a thorough allocution in which he admitted his guilt (see People v Aziz, 211 AD3d 492, 492 [1st Dept 2022];  People v Nunez, 78 AD3d 503, 503–504 [1st Dept 2010], lv denied 16 NY3d 799 [2011] ).