People v. Brito

2018 NY Slip Op 1395

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2018
• Docket: 5857 4840/13
• Status: Published

Opinion

People v Brito (2018 NY Slip Op 01395)

People v Brito

2018 NY Slip Op 01395

Decided on March 1, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 1, 2018
Acosta, P.J., Friedman, Richter, Kapnick, JJ.

5857 4840/13

[*1]The People of the State of New York, Respondent,

v

Winnis Brito, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Anokhi A. Shah of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Megan DeMarco of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J. at suppression hearing; Michael J. Obus, J. at plea and sentencing), rendered December 4, 2014, convicting defendant of criminal possession of a weapon in the second degree and sentencing him to a term of four years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal, which forecloses his suppression and sentencing claims. The plea court's oral colloquy with defendant concerning the waiver, which avoided conflating the right to appeal with the rights normally forfeited upon a guilty plea, met or exceeded the minimum standards for such a colloquy (see People v Bryant, 28 NY3d 1094 [2016]). Furthermore, after consulting with counsel, defendant also signed a written waiver that supplemented the oral waiver.

Regardless of whether defendant made a valid waiver of his right to appeal, we reject his suppression and sentencing claims. The police conducted a lawful protective sweep of an apartment while executing a bench warrant for another person, and frisked defendant based on reasonable suspicion. The record fails to support defendant's claim that the sentencing court misunderstood the lawful scope of sentencing, and we perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 1, 2018

CLERK