PEOPLE v. PHILIPS (2006)

Appeal by the defendant, by permission, from an order of the County Court, Nassau County (Belfi, J.), entered January 31, 2003, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same court rendered April 10, 2000, convicting him of rape in the first degree, sodomy in the first degree (two counts), and attempted sodomy in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the order is affirmed.

Contrary to the defendant's contention, the County Court properly denied, without a hearing, those branches of his motion which were to vacate his judgment of conviction on the ground that the People did not disclose various statements made by witnesses (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64;  Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215).

 By pleading guilty, the defendant forfeited his right to seek review of any alleged Rosario or Brady violation (see People v. Land, 304 A.D.2d 774, 757 N.Y.S.2d 779;  People v. Knickerbocker, 230 A.D.2d 753, 646 N.Y.S.2d 171;  People v. Thompson, 174 A.D.2d 702, 704, 571 N.Y.S.2d 553).   We reject the defendant's contention that, since he did not waive his right to appeal, the Brady claim is subject to review (cf. People v. Mack, 53 N.Y.2d 803, 806, 439 N.Y.S.2d 912, 422 N.E.2d 572;  People v. Land, supra ).   We also reject the defendant's contention that he did not forfeit his Brady claim because he entered into a Serrano/alford plea and thus did not admit guilt (cf. people v. green, 75 N.Y.2d 902, 904-905, 554 N.Y.S.2d 821, 553 N.E.2d 1331, cert. denied 498 U.S. 860, 111 S.Ct. 165, 112 L.Ed.2d 130;  People v. Thompson, supra at 704, 571 N.Y.S.2d 553).

 The County Court properly rejected the defendant's claims relating to alleged newly-discovered evidence.  CPL 440.10(1)(g) is limited, by its very terms, to evidence discovered “since the entry of a judgment based upon a verdict of guilty after trial.”   The defendant pleaded guilty, so the statute does not apply here (see People v. Sides, 242 A.D.2d 750, 751, 661 N.Y.S.2d 863).