15:11 86157688235 5&0 COURT 81/12 COUNTY COURT: NEW YORK COUNTY or ROCKLAND a I THE PEOPLE OF THE STATE or NEW YORK ?against? DECISION AND ORDER Ind. No. 2016?189 IRA BERNSTEIN, Defendant. -Under Indictmentho. 2016-198, Defendant was charged with one count of Conspiracy in the Second Degree (Penal Law 5105.15), one count of Criminal Solicitation in the second Degree (Penal Law two counts of Conspiracy in the Fourth Degree (Penal Law ?105.10), and two counts of Criminal Solicitation in the Fourth Degree (Penal Law 'As set forth in the Indictment, it was alleged that, on or about and between April 4, 2016 and May 2, 2016, the defendant, in Rockland County, individually and while aiding and abetting and acting in concert with another, with intent that conduct constituting a Class A Felony and a Class or Felony be performed, namely Murder in the Second Degree and Assault in the First Degree, agreed with another person to perform that conduct; and with intent that another person engage in.said Conduct constituting a Class A Felony and a 'Class or Felony be performed, solicited, requested, commanded, importuned, or attempted to cause such other person to perform such conductl In essence, Defendant was accused with conspiring, along with his co? 4/26x?2818 15:11 RUGKLAND 8&0 COURT PAGE I defendant, to hire a ?hit man? to kill his wife and to assault two insurance adjusters who were investigating his business practices. On June 21,.2016, Defendant was arraigned on the Indictment. He pled not guilty. On January 9, 2017, Defendant entered a plea of guilty on an amended indictment to one count of Conspiracy in the Second Degree (Penal Lee ?105.15).and two counts of Conspiracy in the Fourth Degree (Penal Law At the time of the plea, Defendant was placed under oath and was fully allocuted by the court. other things, during the plea proceedings, Defendant testified that no one had coerced, forced, or threatened 'him plead guilty, that he was entering the three pleas of guilty freely and voluntarily and because it was? what he wanted to do, and that he-was pleading guilty to the counts noted above because he was in fact guilty of those counts. Defendant. also 'testified 'that, other :then i?us court's ?promise regarding his_sentence, no one had made any other representations or promised him anything else in order to get him to plead guilty. 'Toward the end of the plea proceedings, the Assistant District Attorney set forth the specific factual allegations underlying the crimes to which Defendant pled guilty. Defendant then testified that he understood those factual allegations and that they were? true and accurate in every respect.' Following an adjournment for a pre?sentence investigation, on .May Defendant ?was 8df28f2818 15:11 8457888238 5&0 COURT PQGE 83X12 sentenced, as promised, to an indeterminate term of imprisonment of five to fifteen years on the Conspiracy in the Second Degree count, and concurrent sentences of one year each on the two Conspiracy in the Fourth Degree counts. Defendant now_moVes, pursuant to CPL Article 440, for an order granting vacatur of his conviction on the ground that'?the plea and judgment were improperly procured? and ?dismissing the Indictment due to violations pursuant to Brady The People urge the court to summarily deny befendant?s motion.l With respect to the motion to vacate the plea, the People assert-that Defendant pled guilty to Ithe three aforementioned counts knowingly, . voluntarily, and intelligently; that he freely admitted his guilt on each of those counts; and, finally, that he was not coerced in Iany way in order to enter those guilty pleas. With respect to the ?Brady motion,? the People argue that there was no such violation and, in fact, they, had provided all relevant exculpatory information to Defendant prior to his plea. CPL 440.30 provides 1. A motion to vacate a judgment pursuant to section 440.10 of this article and a motion to set aside a sentence pursuant to section 440.20 of this article must be made in writing and upon reasonable notice to the people. Upon the motion, a.defendant who is in a position adequately to raise more than one ground should raise lDefendanthas not requested a hearing in oonneccion with this motion. 3 . 54/ HUI I3 'the-allegations of the moving papers. Ithereof upon the defendant or his or .3. Upon considering the merits of the motion, 15:11 8457888235 5&0 COURT she intends to If the motion is every -such' ground upon which he or challenge the judgment or sentence. based upon the existence or occurrence of facts, motion papers must Contain sworn allegations thereof, whether by the defendant or by another person or persons. Such sworn allegations may be based upon personal ?knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. The defendant may further submit documentary evidence or information supporting or tending to support The people may file must serve a copy her counsel, if any, an answer denying or admitting any or all of the allegations of the motion papers, and may further submit documentary evidence or information refuting or tending to refute such allegations. After all papers of both parties have been filed, and after? all documentary evidence or information, if any, has been submitted, the court must consider the same for the purpose ascertaining whether the motion is'determinable_without a hearing to resolve questions of fact. with. the court, and iJ1 such. case ?Jc'vb'k'i?l'k 2. If git appears by conceded? or' uncontradicted allegations of the moving papers or of the answer, or'by unquestionable documentary proof, that .there are circumstances which require denial thereof pursuant to subdivision two of section 440.10 or subdivision two of section 440.20, the court must summarily deny the motion.' If it appears that there are circumstances authorizing, though not requiring, denial thereof pursuant to subdivision three of section 440.10 or subdivision three of section 440.20, the court may in its discretion either summarily deny the motion, or proceed to consider the merits thereof. - the court must grant it without conducting a hearing and vacate the judgment or set aside the sentence, as the case may be, if: . The moving papers allege a ground constituting legal basis for the motion; and Such ground, occurrence of facts, is supported by Sworn allegations thereof; and - the- of- if based upon the existence or- PAGE 84f12 64/ 25518 1. a I 8457888235 lb:ll 8&0 COURT The sworn allegations of fact essential to support the motion are either conceded by the people.to be true or are conclusively substantiated by unquestionable documentary proof. 4. Upon considering the merits of the motion, the court may deny it without conducting a hearing if: The moving papers do not allege constituting legal baSis for the motion; or The motion is based upon the existence or occurrence any ground .of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or An allegation of fact essential to support the motion is conclusively refuted 37 unquestionable documentary proof; or An allegation of fast essential to support the motion (1) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that. such allegation is true. - 5. If the court does not determine the motion pursuant to subdivisions two, three or four, it conduct a hearing and Inake findings of fact essential to the determination thereof..The defendant has a right to be present at such hearing but may waive such right in writing. If he does not so waive it and if he is confined in a prison-or other institution of this state, the court must cause him to be produced at such hearing. 6. At such a hearing, the defendant has the burden of proving by'a preponderance of the evidence every fact essential to support the motion. 7. Regardless of whether a hearing was conducted, the court, upon determining the motion, must set forth on the record its findings of fact, its conclusions of law and the reasons for its determination. THE CONTENTIONS OF THE PARTIES Coercion PAGE 85/12 Defendant first argues that his plea of guilty to Conspiracy 15:11 8457688236 5&0 COURT PAGE 65/12 in the Second Degree and to two counts of Conspiracy in the Fourth Degree was coerced. In his Affidavit, Defendant asserts that, following his arraignment on the Indictment, his girlfriend, co- defendant Kelly Gribeluk (?Gribeluk?), was permitted to plead guilty 'Uo the same charges j11 exchange for" her agreement 'to cooperate against Defendant. Her agreement provided, inter alia, that she would testify against Defendant at trial, if required, in -return for a promise of leniency at sentencing. According to Defendant, when Gribeluk attempted to back out of the murder conspiracy, she was threatened by the ?hit man" whom she had hired to kill Defendant's wife. Defendant asserts that Gribeluk notified the prosecution about the threat, but the prosecutor, according to Defendant, did Inot believe Gribeluk and told her that' her cooperation-deal would be jeopardized by such testimony. Defendant continues that Gribeluk subsequently informed Defendant that she would not testify truthfully at trial regarding his planned trial Idefenses of? duress and renunciation. in order In: preserve her cooperation deal with the People: Gribeluk also, according to Defendant, pressured him to plead guilty to eliminate the prosecutor?s need for her testimony and thereby" preserve -her cooperation deal. In support of his argument, Defendant submits an Affidavit- from Gribeluk which details her wish, after arranging the ?hit? on 84/28/2818 15:11 86157888235 RUGKLAND COURT PAGE 87?le Defendant's wife, to renounce that plan. IShe then recounts that, once she sought to renounce the plot, there were alleged threats by the purported ?hit man," cooperator Markensy Louissant, to Gribeluk to pressure her to continue with the plot. Gribeluk further avers that her participation in another plot, an assault on two insurance intestigators investigating Defendant for' Medicaid fraud, was actually an attempt to ?appease? the ?hit man" (and several associated ?hit hen?) by-substituting those acts (and the pay therefor) for the ?hit? on Defendantis wife. When, according to Gribeluk, she told the prosecutor about the aboye threats, he did not_believe her, and told her that she was in danger of having her cooperation agreement terminated. According to her Affidavit, Gribeluk, fearing that her cooperation agreement would be lost, then began to urge Defendant to plead guilty so that she would not have to testify to such threats at trial thus jeopardizing her bargain. with the _prosecution. Gribeluk: claine that Defendant feared that she would lie at trial by failing to testify to the threats and thus undermine his defenses. Allegedly, under this coercion, Defendant then plead guilty. The People properlydassert in opposition that the plea minutes provide clear eyidence that Defendant?s.assertions of coercion by Gribeluk (or anyone else) are actually false. As noted at length above, Defendant was specifically asked by this court, under oath 04/ 2th? 2618 15:11 5&0 COURT PAGE 88/12 and in the presence of current counsel, if anyone had coerced, forced, or threatened him plead guilty. Defendant?s unequivocal answer was The Court then asked if he was entering his pleas of guilty freely and voluntarily and because that was what he wanted to do, and he answered ?yes.? The court next asked Defendant if he was pleading guilty because he was . in fact guilty of those counts; Defendant?s answer once again was that he was. IFinally the Assistant District Attorney detailed the underlying facts in the instant matter, after which the court asked Defendant if the recitation was true and accurate, and Defendant agreed that it was. As noted above, and as the People also properly point out, CPL 440.30(2) provides If it appears by Conceded or uncontradicted allegations of the moving papers or of the answer,. or by_ unquestionable documentary proof, that there are circumstances which require denial thereof pursuant to subdivision two of section 440.10 or subdivision two of section 440.20, the court must summarily deny the motion. The court may thus deny the motion without a hearing_based on unquestionable documentary proof .that belies a defendant?s contentions. Such unquestionable' documentary proof, where a defendant asserts that he was coerced, can consist of the minutes of a plea allocution in which the defendant states unequivocally that he has not coerced into pleading guilty. People Thomas, 131 15:11 8457888238 SEC COURT PAGE 88f12 551 (2mi Dept 2015); People v?Lewis, 129 637 (lm Dept aff?g 45 Misc3d 396 [Supreme Court, Bronx County, 2014]), iv den 26 1009 (2015)2 People Ryder, 136 1109 Dept 2016), iv den 27 1005 (2016); People vBrown, 702 (3rd Dept 2005), iv den 6 774 (2006); People Sayles, l7 hD3d 924 Dept generally People Caccavale, 537 Dept 20l7??denial without a hearing on claim of actual innocence); People Lewis, 139 Aosa 571 (15? Dept 2016);. Peoples Nowlin, 145 1447, 1449 (4th Dept 2016?eproper to deny'motion summarily where Defendant's.assertions that his drug court contract did not bar his referrest,were contradicted by the record); Defendant, when specifically allocuted by the court regarding whether he was coerced into pleading guilty, stated that he was not. In sum, the record evidence presents clear documentary proof?-the minutes of Defendant?s plea alloCution?ethat he entered the instant pleas freely, voluntarily, of his own free will, and because he nae, in fact, guilty of those charges. Thus, the motion to set aside the plea and sentence for coercion must be summarily denied. (Brady claim) Defendant next contends that he had viable defenses of duress and renunciation had he gone to trial. In his own Affidavit, Defendant states that he never consented to hiring a ?hit man? to 15:11 8457688238 COURT PAGE 16/12 kill his wife and, when apprised by Gribeluk that she had done so, urged her to cancel the agreement. What followed, according to Defendant's affidavit, was threats to Gribeluk, and through. Gribeluk to Defendant, by the,?hit man,? to coerce them to continue with the In time, according to Defendant, Gribeluk was arrested (before she could formally renounce) and she agreed to cooperate with the prosecution against Defendant in exchange for leniency. -Whenl'Gribeluk told the prosecutor that. she was _threatened by the ?hit man? to continue with the ?hit,? she was told that she could not testify to threats made by the ?hit man? or her deal with the prosecution would be revoked. According to Defendant, to preserve her cooperation deal, Gribeluk.resolved that she would not testify to those'facts at trial. Defendant claims that Gribeluk's purported resolution not to testify to the ?truth? at trial??coercion by the purported hit man to continue with the hit??in effect, is a determination to falsify evidence. In order to establish a Brady'violation, a defendant must prove: (1) the evidence at issue is_favorable to him or her; (2) the evidence was suppressed by the State,_either willfully or inadvertently; and (3) pmejudice ensued because the suppressed evidence was material -(see Strickler Greene, 527 US at 281?282, 119 1936; People Hayes, 17 46, 50, 926 382, 950 118; People_v Fuentes, 12 at 263, 878 373, 907 286; People Levelle, 3 88, 110, 783 485, 817 341). . People _v Wagstaffe, 120 1351, 1364 (2nd Dept 2014). Conceding for the sake of argument materiality, the court 10 15:11 8457888236 ROCKLAND 8&0 COURT PQGE 11/12 notes that the refusal of a person to testify to particular facts is more in the nature of concealment, rather than fabrication, of evidence. Contrary to Defendant?s assertion, failure by the People to disclose that they? disbelieved. Gribeluk: cannot be 51 Brady \violation because their act of declining to believe the asserted coercion and/or renunciation inculpated, rather than exculpated, Defendant. Concealment by _Gribeluk is also hardly a Brady violation since the decision to conceal the purported defenses of duress and renunciation was made by Gribeluk herself, and not the People. Notably, the People aver that they urged Gribeluk to tell the truth regarding her interactions with Defendant and the ?hit~ .man.?l Further, as the Affidavits of both Gribeluk and Defendant make clear, the decision by Gribeluk not to testify was made known to Defendant immediately and well prior to his plea of guilty. In addition, ?there 'was no Brady violation 'because, even before Gribeluk's decision not to testify regarding the defenses, Defendant was obviously aware and in possession of the facts of_the purported defenses. 'Most importantly, it is uncontested that the People affirmatively advised Defendant by letter, as soon as they became aware that Gribeluk claimed both coercion_by the ?hit?man?- and that she planned to renounce her part in the plot. Thus, Defendant fails on his burden to demonstrate that either Gribeluk?s actions in declining-to testify, or the People?s declining to believe her claims 3of coercion, were 11 zU/ rain 54?: (?688235 COURT PAGE 12/12 evidence was suppressed by the and thus. Brady?violations. His claim also fails because he was fully aware of the arguably exculpatory information long before he pled guilty. Therefore, his motion must be denied. Based upon the foregoing, it is hereby ORDERED, that Defendant?s motion, pursuant to pursuant Article 440, to vacate his conviction due to coercion and falsified evidence, is hereby denied. The foregoing shall constitute the Decision and Order of the Court. Dated: New City, New York April 20, 2018 . DAVID s. ZUCKERMAN, J.C.C. TO: HON. THOMAS P. ZUGIBE I District Attorney, Rockland County One South Main Street, Suite 500 New City, New York 10956 BY: Richard K. Moran, Esq. Executive Assistant District Attorney JEFFREY T. MILLMAN, ESQ. Phillipe Millman 148 South Liberty Drive Stony Point, NY 10980 12