Justice Dominic Massaro
Lizardi sought vacatur of a judgment of conviction arguing prosecutors committed a discovery violation under Criminal Procedure Law §240.20(1)(c). He and codefendants, Santos, Ventura and Gonzalez, were charged with criminal possession of a weapon after officers stopped their vehicle and found a revolver under the front passenger seat where Lizardi was seated. Lizardi pleaded guilty to criminal possession of a weapon and to attempted criminal possession of a weapon under an unrelated indictment. An assistant district attorney received a report from a case he was assigned to, the murder of one Perez, stating the firearm in Lizardi’s case fired the bullet recovered from Perez, but he did not inform Lizardi or his counsel. Lizardi was later charged for Perez’s murder. The court stated Lizardi received the ballistic report indicating the gun and ammunition were operable, finding no violation of prosecutors’ disclosure obligations under §240.20. Also, it stated a violation of §240.20 would be a statutory violation, and not a basis for vacatur under §440.10 unless there was a constitutional violation under §440.10(1)(h) or the judgment was procured by duress or fraud on the court or prosecutions’ part. Thus, vacatur was denied.
