People v. Bray

154 A.D.2d 692

Opinions

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered February 9, 1988, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

Following a Mapp hearing, at the conclusion of which that branch of the defendant’s omnibus motion which was to suppress physical evidence was denied, the defendant agreed to withdraw his previously entered plea of not guilty and to plead guilty to the only count of the indictment, criminal possession of a weapon in the third degree. At the plea allocution, the court, after ascertaining that the defendant had sufficient time to consult with his attorney, inquired of the defendant as follows: "Do you understand that in pleading guilty you’re giving up constitutional rights that you have, for instance, the right to remain silent, the right to have a trial by jury or the Court, whichever you would prefer, the right to confront and cross-examine witnesses, the right to produce any witnesses you might wish to produce, the right to make the People prove you guilty beyond a reasonable doubt, your right to have this Court give you written findings of fact and conclusions of law in reference to the Mapp and Dunaway hearings that you have; you are waiving your right to go to the Appellate Division or any other court in reference to that hearing; do you understand that”?

The defendant responded affirmatively and, after a sufficient factual predicate was established, his plea was accepted and he was adjudicated a persistent violent felony offender. The promised sentence of six years’ to life imprisonment was subsequently imposed.

On appeal the defendant challenges the suppression court’s determination. The People argue that the defendant should be precluded from doing so because he waived his right to appellate review as a condition of his guilty plea. We conclude that, upon this record, the defendant’s purported waiver of his right to appeal from the denial of his motion to suppress was ineffectual and that the defendant is entitled to appellate review of that determination.

It is now well established that a defendant may waive both his statutory right to seek review of an adverse determination of a suppression motion (see, People v Williams, 36 NY2d 829), and the right to appeal generally (see, People v Smith, 74 NY2d 1) as part of a negotiated plea bargain. However, as with waivers in general, in order to be enforceable the waiver "must not only be voluntary but also knowing and intelligent. * * * As with plea and sentence bargains generally, prudence suggests that the terms and conditions of the agreement and the defendant’s understanding of them, be placed upon the record to facilitate appellate review” (People v Smith, 74 NY2d 1, 11, supra). This standard has not been met at bar. The defendant was never specifically informed that, in addition to the panoply of rights he was automatically waiving as a consequence of his guilty plea, acceptance of his plea was being further conditioned upon his waiver of his statutory right to seek review of the suppression court’s determination, a right which, absent such waiver, would survive a guilty plea (see, CPL 710.70 [2]; cf., People v Smith, 74 NY2d 1, supra; People v Williams, 143 AD2d 162; People v Barnett, 136 AD2d 555). Indeed, the record does not contain any indication that the parties even discussed the issue, or that the prosecutor intended the waiver to be a condition of the plea offer (cf., People v Williams, supra; People v Smith, 133 AD2d 864). It would appear that the condition here was imposed pro forma by the plea court, and it is not clear that the defendant understood that his plea of guilty was intended to preclude him from raising the propriety of the hearing court’s determination to deny suppression on appeal. In this regard plea and sentencing courts should take heed of the following advice, recently imparted by the Court of Appeals: "[I]n overseeing the process, the court must also consider the reasonableness and the appropriateness of the bargain (see, Santobello v New York, 404 US 257, 262, supra; Brady v United States, 397 US 742, 748-749; People v Farrar, 52 NY2d 302, 306, supra) and its effect on 'the integrity of the criminal justice system’ before accepting it (People v McConnell, 49 NY2d 340, 346, supra). Manifestly, an unfair bargain or one coerced to conceal error or misconduct does not meet these standards and is subject to vacatur on direct appeal or by appropriate posttrial proceedings” (People v Smith, 74 NY2d 1, 11, supra).

The dissent’s reliance upon People v Ricciardi (121 AD2d 407) and People v McGourty (125 AD2d 417) is misplaced. In Ricciardi (supra), the defendant, on the record, knowingly and voluntarily withdrew all his pretrial motions, pending and decided. Similarly, in McGourty (supra), the defendant unequivocally waived his right to seek appellate review of his suppression motion. Under those circumstances, this court held that the defendants’ claims on appeal that their waivers were not knowing were unpreserved for appellate review because the defendants never moved to vacate their pleas or to set aside their convictions on that basis. Here, in contrast, the insufficiency of the defendant’s purported waiver is apparent from the record itself and no further motion was necessary to preserve this issue for appellate review.

On the record before us, the evidence is insufficient to support the conclusion that the defendant agreed to waive his right to appeal from the denial of his motion to suppress with full appreciation of its consequences (cf., People v Seaberg, 74 NY2d 1), and accordingly, the defendant is entitled to a review of the merits of the suppression court’s determination.

Upon such review, we conclude that the police conduct in stopping the defendant and his companion was not unlawful (see, People v Carrasquillo, 54 NY2d 248; People v Cantor, 36 NY2d 106). Moreover, the evidence adduced at the hearing supports the court’s conclusion that the defendant’s act of drawing and subsequently discarding the gun, "was not a direct and spontaneous response to the detention, but was rather an independent calculated act which was not provoked by the police activity and was thus attenuated from it (see, People v Boodle, 47 NY2d 398, cert denied 444 US 969; People v Townes, 41 NY2d 97; cf., People v Wilkerson, 64 NY2d 749)” (People v Payne, 128 AD2d 559, 560). Since the gun was not seized as a consequence of the police conduct complained of, suppression thereof was not warranted (see, Wong Sun v United States, 371 US 471, 487). Bracken, J. P., Brown and Harwood, JJ., concur.