People v. Dixon , 939 N.Y.S.2d 199 ( 2012 )

McCarthy, J.

Appeal from a judgment of the County Court of Greene County (Lalor, J.), rendered February 23, 2010, convicting defendant upon his plea of guilty of the crime of burglary in the first degree.

An identified individual and three masked men committed a home invasion, binding several adults with duct tape, taking items from the house, hitting the victim with a gun and dragging him outside. The situation ended when police arrived and the assailants fled. Defendant was charged in a 26-count indictment for being a participant in this incident. He entered a plea of guilty to one count of burglary in the first degree in satisfaction of all charges. The plea agreement required him to admit his status as a second felony offender, waive his right to appeal and agree not to testify at the trials of any of his codefendants, in exchange for the People recommending a sentence of 8V2 years in prison and five years of postrelease supervision. His three codefendants pleaded guilty under the same terms. County Court denied defendant’s motion to withdraw his plea and sentenced him in accordance with the plea agreement. Defendant appeals.

The People and County Court did not deprive defendant of his right to a fair trial by entering into and approving of plea agreements with the codefendants. “[D]ue process may be violated when the prosecution’s conduct deprives a defendant of exculpatory testimony . . . [, but] such conduct is not a deprivation of a defendant’s right to call witnesses where the proposed evidence is not shown to be exculpatory” (People v Sharpe, 70 AD3d 1184, 1186 [2010], lv denied 14 NY3d 892 [2010]; see People v Davis, 39 AD3d 873, 874 [2007], lv denied 9 NY3d 842 [2007]; People v Warren, 27 AD3d 496, 497-498 [2006], lv denied 7 NY3d 796 [2006]). Defendant now complains of the People’s conduct in conditioning each of his three codefendants’ pleas on their refraining from testifying at trial for any of the codefendants. Defendant did not, however, raise this complaint prior to entering his plea. At the plea proceedings, defendant admitted his guilt and made no statements asserting his innocence (compare People v Shapiro, 50 NY2d 747, 757-758 [1980]). He raised this argument for the first time just prior to sentencing, at which time he stated that none of the witnesses had identified him and that he pleaded guilty because the court told one of his codefendants that he could not testify at defendant’s trial. While the implication was that the codefendant would testify in defendant’s favor and say that defendant was not one of the masked intruders, defendant did not explicitly state what the codefendant’s testimony would be or even identify which codefendant he was referring to. Nothing in the record indicates that any of the codefendants would offer testimony that would exculpate defendant, and even now defendant can only speculate as to what any codefendant’s possible testimony might be (compare People v Davis, 39 AD3d at 874, with People v Turner, 45 AD2d 749, 749-750 [1974]).¹ Defendant knowingly and intelligently pleaded guilty and admitted his participation in the burglary, and he failed to show that any codefendant would offer exculpatory testimony.² Therefore, while we do not encourage the type of plea agreements fashioned by the People here, defendant’s due process rights were not violated, and County Court did not err in denying his motion to withdraw his plea (see People v Phillips, 71 AD3d 1181, 1183 [2010], lvs denied 15 NY3d 755 [2010]; People v Sharpe, 70 AD3d at 1186).

Defendant’s valid waiver of appeal precludes any challenge to his sentence as harsh or excessive (see People v Thomas, 71 AD3d 1231, 1233 [2010], lv denied 14 NY3d 893 [2010]).

Rose, J.P, Malone Jr. and Stein, JJ., concur.

1 . While the dissent notes that such exculpatory information would not normally be revealed at plea proceedings, defendant could have mentioned specific information at the sentencing proceeding when he raised this issue.

2 . If defendant can now obtain exculpatory statements from one or more codefendants — or be rebuffed in an attempt to obtain such statements — he could possibly demonstrate that the People’s plea agreements with his codefendants operated to deprive him of his right to a fair trial. Based upon such information, he could then seek relief pursuant to CPL article 440.