People v. Bermudez

• Docket Number: 110858
• Decision Date: 29 June 2023
• Parties: The People of the State of New York, Respondent, v. Jason Bermudez, Appellant.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03504

The People of the State of New York, Respondent,
v.
Jason Bermudez, Appellant.

No. 110858

Supreme Court of New York, Third Department

June 29, 2023

Calendar Date: June 1, 2023

Cliff Gordon, Monticello, for appellant.

Brian P. Conaty, Acting District Attorney, Monticello (Danielle K. Blackaby of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Fisher and McShan, JJ.

McShan, J.

Appeal from a judgment of the County Court of Sullivan County (Michael F. McGuire, J.), rendered October 12, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Following a traffic stop and high-speed pursuit in August 2017, defendant was charged in a multicount indictment with, among other offenses, criminal possession of a controlled substance in the third degree, unlawfully fleeing from a police officer in a motor vehicle in the third degree and reckless driving. After defendant's motion to suppress certain oral statements to law enforcement was denied, defendant agreed to plead guilty - in full satisfaction of the indictment - to one count of criminal possession of a controlled substance in the third degree with the understanding that he would be sentenced as a second felony offender to a prison term ranging from 6 to 9½ years followed by three years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement, and the matter was adjourned for sentencing.

When the parties returned for sentencing, defense counsel apprised County Court that defendant had a CPL article 440 motion pending in Queens County with respect to the predicate felony upon which the People were relying, and counsel asked that sentencing in this matter be adjourned pending resolution of that motion. In response, the People moved to amend their second felony offender statement in order to rely upon another prior conviction and suggested that the court schedule a hearing. Defendant expressly declined the opportunity to challenge the predicate felony at a hearing and, despite County Court's willingness to adjourn sentencing, defendant elected to proceed. County Court thereafter sentenced defendant to a prison term of nine years followed by three years of postrelease supervision, and this appeal ensued.

We affirm. The People concede - and our review of the record confirms - that defendant's waiver of the right to appeal is invalid. The written waiver executed by defendant contained overbroad and inaccurate language, and County Court's oral colloquy was insufficient to either cure the deficiencies in the written waiver or otherwise convey to defendant that some appellate review survived (see People v Vakhoula, 215 A.D.3d 1134, 1135 [3d Dept 2023]; People v Quick, 207 A.D.3d 954, 955 [3d Dept 2022]).

As for defendant's claim that County Court erred in failing to suppress both his statements to law enforcement and certain physical evidence as fruit of the poisonous tree, we note that defendant did not challenge the legality of his detention and/or subsequent arrest in his omnibus motion (see People v Paul, 202 A.D.3d 1203, 1208 [3d Dept 2022], lv denied 38 N.Y.3d 1034 [2022]; People v Hansson, 162 A.D.3d 1234, 1236 [3d Dept 2018], lv denied 32 N.Y.3d 1004 [2018]; People v Tetreault, 152 A.D.3d 1081, 1082- 1083 [3d Dept 2018], lv denied 30 N.Y.3d 984 [2017]; cf. People v Hayward, 213 A.D.3d 989, 993 [3d Dept 2023]), and his conclusory assertion that the physical evidence was obtained "in violation of [his] constitutional...