People v. Turner
This text of People v. Turner (People v. Turner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
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People v Turner
2026 NY Slip Op 02557
April 24, 2026
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v
ROBERT TURNER, DEFENDANT-APPELLANT.
Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department
Decided on April 24, 2026
241 KA 23-00922
Present: Whalen, P.J., Bannister, Smith, Nowak, And Delconte, JJ.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. KEANE, DISTRICT ATTORNEY, BUFFALO (APRIL J. ORLOWSKI OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Betty Calvo-Torres, A.J.), rendered April 3, 2023. The judgment convicted defendant upon a plea of guilty of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the fourth degree.
[*1]It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, that part of the omnibus motion seeking to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]). We reverse.
Preliminarily, we agree with defendant that, under "the totality of the circumstances" presented here, his waiver of the right to appeal is invalid (People v Thomas, 34 NY3d 545, 559 [2019], cert denied 589 US 1302 [2020]; see People v Nixon, — AD3d —, — [Apr. 24, 2026] [4th Dept 2026] [decided herewith]). Consistent with our "responsibility to oversee the [plea] process and to review the record to ensure that the defendant's waiver of the right to appeal reflects a knowing and voluntary choice" (People v Callahan, 80 NY2d 273, 280 [1992]; see Thomas, 34 NY3d at 559), we must look at "all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement" (Thomas, 34 NY3d at 559-560 [internal quotation marks omitted]), and, as necessary, "address our concern that trial judges may encourage the use of appeal waivers in order to insulate their decisions from appellate review and thus avoid reversals" (Nixon, — AD3d at — [internal quotation marks omitted]). Thus, pursuant to the long-standing principle that "[n]ot only must judges actually be neutral, they must appear so as well" (People v Novak, 30 NY3d 222, 226 [2017]), "where a waiver of the defendant's right to appeal is a condition of a court-initiated plea agreement that does not require the People's consent, the waiver is invalid and unenforceable unless it is apparent from the record that the court had a distinct and proper reason to demand the waiver and foreclose judicial review at the time the demand was made" (Nixon, — AD3d at —).
Here, according to the testimony at the suppression hearing, two Buffalo Police Department officers received a dispatch report to respond to a residential address based on an anonymous 911 phone tip that an older Black man was knocking on the front door of that residence and arguing with a woman. The anonymous caller further reported overhearing the woman say to the man "why would you pull out a gun." The officers responded to the location and observed defendant, "an older [B]lack male on the [front] porch of [a neighboring house]." One of the officers approached defendant and asked if he could "pat him down." Although the officer testified that defendant unequivocally responded "yes" to his search request, the officer's [*2]body-worn camera (BWC) footage—which was admitted during the suppression hearing—instead records defendant responding, albeit faintly, to the officer's request with a question, namely, "For what?" The officer nonetheless proceeded to frisk defendant, and he recovered a handgun from defendant's jacket. A subsequent search of defendant incident to his arrest recovered narcotics. Following the hearing, Supreme Court denied suppression, concluding that "[t]he fact that the [BWC] failed to make an audible recording of defendant's response does not contradict or refute [the officer's] testimony" as to defendant's consent to a frisk.
Defendant thereafter pleaded guilty to the indictment upon his understanding that the court would impose the minimum sentence, to run concurrently, on both counts. While plea discussions were conducted off the record, defense counsel appropriately made a record of the fact that, although defendant requested to preserve his right to appeal the adverse suppression ruling, "the [c]ourt will not accept that . . . [and] will require [defendant] to waive all suppression issues except for illegalities in sentencing and other illegalities that would survive a waiver of appeal." Neither the court nor the prosecutor objected to, or otherwise qualified, defense counsel's assertion that the court had demanded defendant waive his right to appeal as a condition of the plea agreement.
Here, the consent of the People to the plea agreement was not required because the charges remained as presented (see CPL 220.10 [2]) and, thus, the People were not in a position to demand a waiver of defendant's right to appeal nor was such a waiver—or any other plea condition—necessary to secure the People's consent (see Nixon, — AD3d at —). It follows, then, that the court's demand of an appeal waiver, particularly as viewed in light of defendant's expressed desire to seek appellate review of the court's suppression ruling, "gives rise to the appearance that the court [was] seeking to shield its decisions from appellate review or otherwise act[ing] as an advocate for the People" and, therefore, "we must look to the record as a whole to determine whether there is a distinct and proper reason for the court's demand" (id. at —).
Although the record establishes that defendant received consideration for his waiver of the right to appeal inasmuch as he "secure[d] the benefit of the sentencing limitation promised by the court" (People v Figueroa, 230 AD3d 1581, 1583 [4th Dept 2024], lv denied 42 NY3d 1079 [2025]; see People v Allen, 174 AD3d 1456, 1456 [4th Dept 2019], lv denied 34 NY3d 978 [2019]; cf. People v Gramza, 140 AD3d 1643, 1643-1644 [4th Dept 2016], lv denied 28 NY3d 930 [2016]), the sentencing limitation does not constitute a distinct and proper reason for the court's demand of an appeal waiver because the court retains both the obligation and the discretion to impose sentence in light of the information subsequently obtained from the presentence report and other sources regardless of whether defendant waived his right to appeal (see People v Farrar
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