Opinion
KA 01-00797.
November 21, 2003.
Appeal from an order of Monroe County Court (Marks, J.), entered March 6, 2001, which denied the motion of defendant pursuant to Cpl 440.10 to vacate his judgment of conviction.
Michael P. Stacy, Rochester, for Defendant-Appellant.
Darrin Singleton, Defendant-Appellant Pro Se.
Howard R. Relin, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Plaintiff-Respondent.
Before: Present: Pigott, Jr., P.J., Green, Scudder, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his pro se motion pursuant to CPL article 440 seeking to vacate the judgment convicting him of two counts each of burglary in the first degree (Penal Law § 140.30, [4]) and attempted robbery in the first degree (§§ 110.00, 160.15 [2], [4]). We previously affirmed that judgment of conviction ( People v. Singleton, 286 A.D.2d 877, lv denied 97 N.Y.2d 658). In support of his motion, defendant submitted the transcript of the plea proceeding of one of his alleged accomplices. Defendant contended that the transcript constituted newly discovered evidence and that the verdict would have been more favorable to him had the transcript been received at trial ( see CPL 440.10[g]); that he received ineffective assistance of counsel ( see 440.10 [1][h]); and that the People committed a Brady violation by failing to turn over the transcript to defendant ( see 440.10 [1][f]). We conclude that County Court properly denied the motion. The transcript does not constitute newly discovered evidence because it could have been produced at trial by defendant with due diligence ( see 440.10 [1][g]; People v. Ulrich, 265 A.D.2d 884, 886, lv dismissed 94 N.Y.2d 799; People v. Beckett, 162 A.D.2d 1000, 1001, lv denied 76 N.Y.2d 852). Defendant was aware that the accomplice had pleaded guilty and, indeed, defendant had obtained the transcript of another accomplice's plea proceeding prior to trial. We agree with the court that defendant did not support his contention concerning ineffective assistance of counsel with sufficient "nonrecord facts" ( People v. Satterfield, 66 N.Y.2d 796, 799). Furthermore, although we agree with defendant that the transcript of the accomplice's plea proceeding was exculpatory, we disagree that there was a Brady violation. The People are not required to turn over evidence where, as here, defendant "knew of, or should reasonably have known of, the evidence and its exculpatory nature" ( People v. Doshi, 93 N.Y.2d 499, 506; see People v. Quinones, 228 A.D.2d 796, 798).