People v. Kevin Fisher


AD1 order dated July 3, 2014, affirming judgment of conviction. Decision below: 119 AD3d 426, 988 NYS2d 187. Rivera, J., granted leave October 5, 2015.
ISSUES PRESENTED: (1) Whether defendant should have been permitted to withdraw, prior to sentencing, his guilty plea to hindering prosecution, where the person he admitted rendering criminal assistance to was acquitted of the underlying felony prior to trial. (2) Whether defendant’s guilty plea was knowing and voluntary where the People did not disclose interview notes with their primary witness that undercut the People’s case. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)

Issue Before the Court: Where a defendant pleads guilty to hindering prosecution based on rendering assistance on an underlying crime, does the co-defendant’s acquittal render the defendant innocent and his admission of guilt a legal nullity?   


Held: In a unanimous decision authored by Judge Rivera, the Court answers “no.” Hindering prosecution does not require proof that the assisted person was ever arrested or convicted, and the People may satisfy their burden by relying on the defendant’s admissions that the assisted person committed the crime.  Further, cases involving conspiracy, criminal facilitation, and accomplice liability, all hold that criminality of one defendant is not required to establish criminality of another.  Defendant’s rule would have “the perverse result of treating as innocent a defendant who stymies an investigation . . . because those efforts lead to the assisted person’s acquittal.” 


CAL Observes: This Court of Appeals has not yet confronted whether post-conviction claims of actual innocence in plea cases are legally cognizable on 440 motions. (The Second Department has said they are.)  Fisher on the one hand reaffirms that pre-sentencing claims of actual innocence can support a motion to withdraw a guilty and are subject to an abuse of discretion standard of review, but also reiterates that a plea “marks the end of a criminal case, not a gateway to further litigation.” No reading the tea leaves here to see which way this Court will go if confronted with that issue.