
    The People of the State of New York, Respondent, v James Kinney, Appellant.
    [967 NYS2d 365]
   Order, Supreme Court, New York County (Patricia Nunez, J.), entered May 24, 2012, which denied defendant’s CPL 440.10 motion to vacate a judgment of the same court and Justice, rendered April 27, 2009, convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony drug offender, to a term of three years, unanimously affirmed.

The court properly denied defendant’s CPL 440.10 (1) (h) motion to vacate the judgment, made on the ground that it was obtained in violation of his right to disclosure of exculpatory evidence under Brady v Maryland (373 US 83 [1963]). More than a year after defendant’s guilty plea, it was learned that a police chemist, who retested the drugs in this case after the original testing chemist had retired, had committed misconduct in unrelated cases. There was no Brady violation, because at the time of defendant’s conviction, the People had neither actual nor imputed possession of, or access to, information about misconduct by this particular chemist (see People v Santorelli, 95 NY2d 412, 421 [2000]; People v Ortega, 40 AD3d 394, 395 [1st Dept 2007], lv denied 9 NY3d 992 [2007]; see also People v Vasquez, 214 AD2d 93, 99-102 [1st Dept 1995], lv denied 88 NY2d 943 [1996]). In any event, the alleged nondisclosure could not have materially affected defendant’s decision to plead guilty (see People v Martin, 240 AD2d 5, 8-9 [1st Dept 1998], lv denied 92 NY2d 856 [1998]). Timely discovery and disclosure of the retesting chemist’s misconduct would have provided defendant with little or no reason to reject a favorable plea offer and go to trial. The People would have called the retired chemist to testify, or had the drugs retested by a third chemist, or both, and the tainted chemist’s involvement would have created minor issues, at most, about the identity of the drugs. Concur — Mazzarelli, J.P., Renwick, Manzanet-Daniels, Gische and Clark, JJ.  