This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 15
The People &c.,
            Respondent,
        v.
Kevin Fisher,
            Appellant.




          Matthew A. Wasserman, for appellant.
          Luis A. Morales, for respondent.




RIVERA, J.:
          Defendant Kevin Fisher challenges the denial of his
motion to withdraw his guilty plea to one count of hindering
prosecution in the second degree (Penal Law § 205.60).   The
courts below properly rejected defendant's claims that his plea
is constitutionally infirm and that his codefendant's acquittal


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of the underlying felony renders defendant innocent.    Neither
claim is supported by existing precedent, and his innocence
theory is counter to this Court's holdings in People v Chico (90
NY2d 585 [1997]), People v O'Toole (22 NY3d 335 [2013]), and
People v Berkowitz (50 NY2d 333 [1980]).    Therefore, the
Appellate Division order affirming the judgment should be
affirmed.


                                 I.
            Defendant was charged with hindering prosecution in the
first degree and criminal possession of a weapon in the third
degree for providing and hiding a gun used by codefendant Clovis
Roche in a fatal shooting.    On the eve of trial, defendant
pleaded guilty to the lesser included offense of hindering
prosecution in the second degree, in satisfaction of the
indictment.    At the plea colloquy, he admitted under oath that he
rendered criminal assistance to Roche, who had committed murder
in the second degree, and that defendant knew and believed Roche
had engaged in conduct constituting second-degree murder.      As
part of his plea, defendant waived his right to appeal.
            Roche proceeded to trial.   The People's sole eyewitness
was the brother of the victim, who testified that he was at his
brother's apartment with several other people when a dispute
arose and Roche shot his brother.     The brother's assertion that
he told the police that Roche was the shooter contradicted the


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trial testimony of a detective who said the brother told her that
he had not seen the shooting, but was consistent with later
statements the brother made to other police officers, the
prosecutor, and the grand jury.
           The evening after the brother testified, the prosecutor
discovered handwritten notes of his pre-trial interview with the
brother.   The notes included "blurbs" indicating that the brother
was "unsure," "saw punches thrown," Roche "starts pulling out
gun," the victim "grabbed gun," and that another person in the
apartment "was punching" Roche.   Roche's defense counsel conceded
the notes should have been disclosed under People v Rosario (9
NY2d 286, 289 [1961]), not Brady v Maryland (373 US 83, 87
[1963]), and the court permitted cross-examination on the content
of the prosecutor's notes.*   Thereafter, defense counsel
attempted to impeach the brother with the notes and referred to
them in summation as evidence that the brother was lying on the
stand and that he had not seen the shooting.
           Roche testified in his defense that he never intended
to shoot the victim, and only displayed the gun to persuade him
and the others to leave the apartment.   According to Roche, the
victim grabbed for the gun, the two men fell back into the



     *
       Rosario disclosures, codified by CPL 240.45, include any
statements made by a witness who will testify at trial, while
Brady disclosures consist of any exculpatory evidence or
information favorable to defendant, which is material to guilt or
punishment.

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bedroom, and the gun accidently went off twice while they
struggled.   Although the gun was never recovered, Roche admitted
that he got it from defendant.    Despite Roche's denial of any
intent to use the gun, the trial court granted defense counsel's
request to charge on self-defense.
          The jury acquitted Roche of the felony charges of
murder in the second degree and criminal possession of a weapon
in the second degree, but convicted him of the misdemeanor count
of criminal possession of a weapon in the fourth degree.
          After Roche's acquittal on the felony counts, and prior
to defendant's sentencing, defendant moved to withdraw his plea
pursuant to CPL 220.60 (3).   The court denied the motion and
sentenced defendant in accordance with the plea agreement.     The
Appellate Division affirmed (People v Fisher, 119 AD3d 426 [1st
Dept 2014]).   A Judge of this Court granted leave to appeal
(People v Fisher, 26 NY3d 1008 [2015]).


                                  II.
          A determination on a defendant's motion to withdraw a
plea prior to sentencing is left to the sound discretion of the
court (CPL 220.60 [3]).   We review the denial of such a motion
for abuse of discretion as a matter of law (People v Manor, 27
NY3d 1012, 1013-1014 [2016]).    Here, defendant challenges the
trial court's denial of his motion to withdraw his plea on two
grounds: 1) the plea was not voluntary, knowing and intelligent


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because he entered the plea without benefit of the prosecutor's
notes, which are exculpatory and would have materially affected
defendant's decision to plead guilty; and 2) defendant is
innocent of hindering prosecution due to Roche's acquittal of the
underlying felony of second-degree murder.    We conclude that the
notes are not exculpatory and, regardless, would not have
materially affected defendant's decision to plead.    Further, the
acquittal of Roche does not render defendant's admission of guilt
a legal nullity.    Therefore, the trial court did not abuse its
discretion in denying defendant's motion.


                                 A.
          Under well-established federal and state constitutional
principles, suppression of "favorable evidence in the People's
possession which is material to either guilt or punishment" is a
violation of a defendant's federal and state due process rights
(People v Bryce, 88 NY2d 124, 128 [1996], citing Brady, 373 US at
87 and People v Vilardi, 76 NY2d 67, 73 [1990]).    To establish
that the People violated these rights, "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 Fuentes, 12 NY3d
259, 263 [2009]).    The Appellate Division Departments and the
United States Court of Appeals for the Second Circuit have held


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that in cases where a defendant pleads guilty and the People have
suppressed exculpatory evidence, the defendant must establish
that the evidence would have materially affected the decision to
plead rather than go to trial (see People v Martin, 240 AD2d 5, 9
[1st Dept 1998]; People v Armer, 119 AD2d 930 [3d Dept 1986];
Tate v Wood, 963 F2d 20, 24 [2d Cir 1992]).
          Here, the notes do not refer to defendant’s acts or
intention, and, as such, they do not directly or expressly
provide evidence favorable to defendant by negating or placing in
doubt his criminal acts.   Nor do the notes support a theory that
Roche acted in self-defense, as defendant claims.   To the extent
the notes reveal the brother told the prosecutor he saw Roche
pull out a gun and then saw the victim grab it, the notes are
inculpatory as to Roche.   Specifically, the notes indicate that
Roche was pulling the gun from his belt and not merely displaying
it as he testified at trial.   The notes also made it appear as if
the victim acted in self-defense and not the other way around.
Given that the notes are not favorable to defendant by
exculpating him or Roche, we reject defendant's contention that
the notes would have materially affected his decision to plead
guilty.


                                B.
          Defendant's alternative argument -- that the People
cannot establish a necessary element of hindering prosecution --


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is partially foreclosed by his guilty plea to the extent he
challenges the sufficiency of the evidence in his case (People v
Plunkett, 19 NY3d 400, 405 [2012]).    However, we may consider his
claim that Roche's acquittal renders defendant innocent of the
crime to which he pleaded guilty, along with his argument that
the People are collaterally estopped from further prosecution of
defendant (People v Taylor, 65 NY2d 1, 5 [1985]; People v Dixon,
29 NY2d 55, 57 [1971]).
          A defendant is guilty of hindering prosecution in the
second degree when the defendant "renders criminal assistance to
a person who has committed a class B or class C felony" (Penal
Law § 205.60).   In People v Chico (90 NY2d 585, 588 [1997]), a
case involving first-degree hindering prosecution, the Court held
that "the People must prove the underlying class A felony was
committed," but made clear that "the statute does not require
proof that the assisted person was ever arrested or convicted."
Other than the class of the underlying felony and the fact that
first-degree hindering prosecution has the added element that the
defendant knew or believed that the assisted person engaged in
the conduct constituting a class A felony, first- and second-
degree hindering prosecution share the same elements.
Accordingly, the rules set forth in Chico apply equally to the
lesser included offense.
          Contrary to defendant's suggestion, the People may
satisfy their burden to establish defendant's guilt beyond a


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reasonable doubt by relying on the defendant's admissions that
the assisted person committed the crime.    Indeed, Chico
specifically permits such evidence, as the Court held the
defendant's eyewitness account that the assisted person stalked
and fatally shot the victim was evidence against the defendant
establishing the underlying felony of intentional murder (id. at
589).   Similarly, the elements of second-degree hindering
prosecution were established at defendant's plea allocution when
he admitted rendering criminal assistance to Roche, who defendant
further admitted had committed second-degree murder.    As in
Chico, defendant's statements established the commission of the
underlying felony (see id.).
           Defendant argues that the court abused its discretion
in denying his motion to withdraw his guilty plea because his
guilt is inextricably tied to Roche's criminal liability,
rendering him innocent if Roche is acquitted.    Defendant's
argument is at odds with the holding in Chico that a defendant's
criminal culpability is not dependent on the assisted person's
arrest or conviction (id. at 588).     Further, defendant's argument
is based on a flawed legal premise because "an acquittal is only
a finding of reasonable doubt, not a finding that [the person
tried] is in fact innocent" (O'Toole, 22 NY3d at 338).
           In that vein, Roche's acquittal of the murder and
conviction of weapon possession suggests the jury determined
there was reasonable doubt as to whether he harbored the


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requisite intent to cause the victim's death or acted in self-
defense.   Of course, the jury rendered that verdict without the
benefit of defendant's plea and his admission that Roche
committed murder.   The jury may also have exhibited "mercy" in
Roche's case (id.), or engaged in unsanctioned jury nullification
(People v Goetz, 73 NY2d 751, 752 [1988]["there is nothing to
prevent a petit jury from acquitting although finding that the
prosecution has proven its case," although it is "not a legally
sanctioned function of the jury and should not be encouraged by
the court"]).
           Defendant's position is further undermined by cases
involving conspiracy, criminal facilitation, and accomplice
liability, which hold that criminality of one defendant is not
required to establish criminality of another (see Berkowitz, 50
NY2d at 343; People v Oleksowicz, 101 AD2d 119 [2d Dept 1984];
People v Rasero, 62 AD2d 845, 851 [1st Dept 1978]).   Defendant
seeks to distinguish these cases on the ground that the statutes
for those crimes expressly provide that acquittal is no defense
(Penal Law §§ 105.30, 115.10, 20.05).   We are unpersuaded.   In
Chico this Court made plain that the assisted person's conviction
is not a required element of the crime (Chico, 90 NY2d at 588).
As with the unilateral theory of criminal liability for
conspiracy, the legal status of the assisted person -- the
principal in this case -- is immaterial to defendant's criminal
liability for hindering prosecution (People v Schwimmer, 47 NY2d


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1004, 1005 [1979]).
          Fundamentally, the reasoning of Berkowitz for
permitting prosecution of one defendant when a coconspirator is
acquitted applies just as forcefully to cases of hindering
prosecution:
          "In most cases there will be significant
          disparities in the proof which is available
          against each of two defendants . . . . Hence,
          the acquittal of one of two defendants . . .
          does not mean that the People will
          necessarily be unable to prove the guilt of
          the other defendant beyond a reasonable
          doubt"
(id. at 346).
          Defendant's supporting assertion, that collateral
estoppel bars the People's continued prosecution of a defendant
following the assisted person's acquittal, is based on a
misapplication of the doctrine.    Collateral estoppel applies in a
criminal case to prevent one party from "relitigat[ing] issues
which have already been decided against" that party (id. at 343,
quoting People v Lo Cicero, 14 NY2d 374, 380 [1964]).   Assuming
without deciding there was an identity of the parties (see
Berkowitz, 50 NY3d at 345), collateral estoppel could not apply
because defendant pleaded guilty prior to Roche's acquittal,
meaning that no previously determined facts were relitigated at
defendant's sentencing.


                                  C.
          The logical basis for rejecting defendant's proposed

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rule -- an assisted person's acquittal forecloses any finding of
a defendant's criminal liability for hindering prosecution -- is
rooted in the nature of the crime itself.   The intended goal of
hindering prosecution is the assisted person's evasion of
criminal liability for the underlying felony.   The more effective
a defendant's attempts to obstruct law enforcement, the more
likely the assisted person will escape prosecution or be
acquitted.   Defendant's rule would have the perverse result of
treating as innocent a defendant who stymies an investigation,
hides evidence -- as in this case -- or otherwise sabotages the
prosecution, because those efforts lead to the assisted person's
acquittal.   Such an outcome would undermine the purpose of the
statute: to hold accountable those who successfully or
unsuccessfully interfere and to discourage such conduct (see
Penal Law § 205.50).   Additionally, in cases where the assisted
person is being prosecuted, a defendant charged with hindering
prosecution could plead guilty, with the intent of withdrawing
the plea if the assisted person is acquitted.   This is in
contradiction of this Court's rule that, whenever possible, a
guilty plea is treated as final (People v Ramos, 63 NY2d 640, 643
[1984]; see also People v Thomas, 53 NY2d 338, 344-5 [1981]).
          We recognize the concerns implicit in defendant's
argument that permitting his guilty plea to stand appears to
grant the People two bites at the apple to establish the
commission of the underlying felony.   However, we do not view


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defendant's conviction based on his voluntary plea as relaxing
the People's heavy burden to establish guilt beyond a reasonable
doubt for every person accused with a crime (People v Johnson, 94
NY2d 600, 610 [2000]).   The result might be different if a
defendant asserted a supported claim of actual innocence in that
he did not provide assistance, or if a defendant established that
the assisted person was wrongly accused of a felony committed by
someone else (see People v McKennion, 27 NY2d 671 [1970]
[defendant who claims innocence before sentencing after pleading
guilty entitled to hearing or withdrawal of plea if there is an
assertion with factual support that plea was based on
misunderstanding or mistake]; cf. Dixon, 29 NY2d at 56 [court has
discretion not to withdraw guilty plea made knowingly and
tactically when defendant makes unsupported claim of innocence
before sentencing]).   In both those situations the defendant
would not have hindered the prosecution of a felony committed by
the assisted person.   Neither case is presented here, and
defendant has never claimed that he did not take the gun from the
scene of a homicide he had just observed Roche commit.


                               III.
          A plea "marks the end of a criminal case, not a gateway
to further litigation" (Plunkett, 19 NY3d at 405).   As a
consequence, "a motion to withdraw a guilty plea will not be
granted merely for the asking" (Alexander, 97 NY2d at 485).     "A


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defendant is not entitled to withdraw his guilty plea based on a
subsequent unsupported claim of innocence, where the guilty plea
was voluntarily made with the advice of counsel following an
appraisal of all the relevant factors," which can include the
strength of the evidence against defendant and hope of a reduced
charge and sentence (Dixon, 29 NY2d at 57).        We conclude the
court neither abused its discretion in denying defendant's motion
to withdraw his plea, nor improperly rejected defendant's attempt
to relitigate his guilt.    Accordingly, the order of the Appellate
Division should be affirmed.
*   *   *   *   *   *   *    *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Rivera. Chief Judge DiFiore
and Judges Abdus-Salaam, Stein, Fahey and Garcia concur. Judge
Wilson took no part.

Decided February 14, 2017




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