People v. Olivier

48 A.D.3d 486, 849 N.Y.S.2d 790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 2008
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Holdman, J.), rendered June 15, 2006, 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 (Brennan, J.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

Contrary to the People’s contention, the defendant’s waiver of his right to appeal was ineffective, as there is no indication in the record “that defendant understood the distinction between the right to appeal and other trial rights forfeited incident to a guilty plea” (People v Moyett, 7 NY3d 892, 893 [2006]; see People v Lopez, 6 NY3d 248, 257 [2006]; People v Shemack, 40 AD3d 890 [2007]).

According great deference to the credibility determinations of the hearing court (see People v Rivera, 27 AD3d 489, 490 [2006]; People v Bell, 18 AD3d 881 [2005]), based upon the evidence adduced at the suppression hearing, we find no error in the hearing court’s determination (see People v Little, 309 AD2d 767 [2003]; United States v McFadden, 238 F3d 198 [2001], cert denied 534 US 898 [2001]). Spolzino, J.P., Miller, Dillon and McCarthy, JJ., concur.