People v. Bowman

• Decision Date: 06 May 2021
• Docket Number: 110475
• Citation: 146 N.Y.S.3d 686,194 A.D.3d 1123
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark BOWMAN, Also Known as Merk, Appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1123

146 N.Y.S.3d 686

The PEOPLE of the State of New York, Respondent,

v.Mark BOWMAN, Also Known as Merk, Appellant.

110475

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 10, 2021

Decided and Entered: May 6, 2021

Aaron A. Louridas, Delmar, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered May 13, 2016, convicting defendant upon his plea of guilty of the crime of attempted murder in the second degree.

During the early morning hours of May 5, 2015, defendant and Jaushi'ir Weaver shot into a crowd of people gathered outside a residential building in the City of Albany to avenge the murder of defendant's cousin. Two individuals in the crowd were struck and injured, and a third victim was fatally wounded. Thereafter, defendant and Weaver, along with their get-away driver, Rashad Quintyne, were charged in a multicount indictment with various crimes in connection with the shooting. Following a combined pretrial Dunaway/Huntley/Wade/Mapp hearing, County Court, among other rulings, denied defendant's suppression motions made with respect to his oral and written statements to police, identification testimony and tangible physical evidence. Prior to trial, and following a Sandoval/Molineaux hearing, the court partially granted the People's motion to introduce evidence of prior uncharged crimes and/or bad acts attributed to defendant and his codefendants that occurred earlier in the evening of the shootings. Defendant thereafter pleaded guilty to attempted murder in the second degree in full satisfaction of the indictment and waived his right to appeal, with the understanding that he would be sentenced, as a violent predicate offender, to a prison term of 25 years followed by five years of postrelease supervision.¹ County Court sentenced defendant to a reduced prison term of 21 years, followed by five years of postrelease supervision. This appeal ensued.

We agree with defendant that his waiver of the right to appeal was invalid. "A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] [citation omitted]; see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). " ‘In determining whether the record demonstrates that a defendant understood an appeal waiver's consequences, proper considerations include the defendant's consultation with counsel and on-the-record acknowledgments of understanding, a written appeal waiver that supplements or clarifies the court's oral advice and the defendant's experience with the criminal justice system’ " ( People v. Gamble, 190 A.D.3d 1022, 1023–1024, 138 N.Y.S.3d 729 [2021], lv denied 36 N.Y.3d 1097, 144 N.Y.S.3d 134, 167 N.E.3d 1269 [Mar. 2, 2021], quoting People v. Thomas, 34 N.Y.3d at 560, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). "[O]f paramount importance is the trial court's responsibility to ensure that [a] defendant's full appreciation of the consequences and understanding of the terms and conditions of the plea and appeal waiver are apparent on the face of the record" ( People v. Thomas, 34 N.Y.3d at 560, 122 N.Y.S.3d 226, 144 N.E.3d 970 [internal quotation marks and citation omitted]).

A review of County Court's brief colloquy with defendant reflects that the court "did not inform defendant that the right to appeal was separate and distinct from the rights [he] was forfeiting by pleading guilty and did not adequately explain the nature of the waiver or ascertain defendant's knowledge of its ramifications" ( People v. Williams, 190 A.D.3d 1192, 1193, 136 N.Y.S.3d 919 [2021] ). In addition, the written waiver at issue was overbroad and purported to "encompass[ ] all issues arising from th[e] criminal proceeding. Although we have excused overly-broad written waivers where the court's oral colloquy with the defendant still permit[ted] the conclusion that the counseled defendant understood the distinction that some appellate review survived, County Court's terse discussion of defendant's appellate rights fell short of drawing that distinction" ( People v. Gervasio, 190 A.D.3d 1190, 1190–1191, 136 N.Y.S.3d 813 [2021] [internal quotation marks and citations omitted]). Indeed, the waiver at issue misadvised defendant that, as part of the plea bargain, he was "waiving and giving up all of [his] rights to appeal on all legal and constitutional grounds that [he] might have and that [his] waiver of [his] right to appeal will include not only everything that has occurred in this prosecution through today, [his] waiver of appeal will be extended forward in time and date to include the sentencing proceeding and the sentence imposed so long as the sentence imposed is consistent with the plea agreement in this case." The record further demonstrates that County Court did not ascertain from defendant that he had conferred with counsel prior to the written waiver's execution (see People v. Burnell, 183 A.D.3d 931, 932, 123 N.Y.S.3d 728 [2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 827, 151 N.E.3d 508 [2020] ; People v. Dolder, 175 A.D.3d 753, 754, 103 N.Y.S.3d 867 [2019] ). As such, the record fails to demonstrate that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Gamble, 190 A.D.3d at 1023, 138 N.Y.S.3d 729 ; People v. Brito, 184 A.D.3d 900, 901, 124 N.Y.S.3d 749 [2020] ; People v. Burnell, 183 A.D.3d at 932, 123 N.Y.S.3d 728 ; People v. Alexander, 174 A.D.3d 1068, 1068, 104 N.Y.S.3d 765 [2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 625, 134 N.E.3d 624 [2019] ).

Defendant's challenge to the voluntariness of his plea is unpreserved for our review due to his failure to file an appropriate postallocution motion (see People v. Aponte, 190 A.D.3d 1031, 1032, 138 N.Y.S.3d 724 [2021] ; People v. Apelles, 185 A.D.3d 1298, 1299, 127 N.Y.S.3d 652 [2020], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 287, 155 N.E.3d 780 ; People v. Brito, 184 A.D.3d at 901, 124 N.Y.S.3d 749 ; People v. Schmidt, 179 A.D.3d 1384, 1385, 114 N.Y.S.3d 737 [2020] ). "Furthermore, the narrow exception to the preservation requirement was not implicated as the record does not disclose that defendant made any statements during the plea colloquy or at sentencing that cast doubt upon his guilt or otherwise called into question the voluntariness of the plea" ( People v. Botts, 191 A.D.3d 1044, 1045, 140 N.Y.S.3d 632 [2021] [citation omitted], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 123, 167 N.E.3d 125 [Mar. 29, 2021] ; see People v. Rodriguez, 185 A.D.3d 1233, 1235, 127 N.Y.S.3d 644 [2020], lv denied 36 N.Y.3d 975, 138 N.Y.S.3d 460, 162 N.E.3d 689 [2020] ; People v. Schmidt, 179 A.D.3d at 1385, 114 N.Y.S.3d 737 ). As to defendant's challenge to County Court's Molineaux ruling, his "entry of a valid guilty plea forfeited [his] right to challenge any aspect of [that] ruling" ( People v. Bowden, 177 A.D.3d 1037, 1038–1039, 114 N.Y.S.3d 482 [2019] [internal quotation marks and citation omitted], lv denied 34 N.Y.3d 1157, 120 N.Y.S.3d 238, 142 N.E.3d 1140 [2020] ).

Next, defendant contends that County Court erred in failing to suppress Weaver's pretrial identification of defendant from a photo array. According to the testimony at the suppression hearing, the police recovered video footage from a surveillance camera near the location of the shootings after Weaver and Quintyne had been taken into custody and before defendant was arrested. The hearing testimony established that Weaver, when shown the video, immediately recognized and identified defendant in the video as an individual he knew as "Merk." Weaver was then shown a photo array containing six "mug-shot" photos and selected defendant's photo. We find that, under these circumstances, Weaver's identification of defendant from the photo array was merely confirmatory, and no Wade issue was present (see People v. Cuevas, 133 A.D.2d 504, 505, 519 N.Y.S.2d 430 [1987], lv denied 70 N.Y.2d 930, 524 N.Y.S.2d 682, 519 N.E.2d 628 [1987] ). Had a Wade issue been present, we would find that the photo array was not unduly suggestive. "A photo array is unduly suggestive if some feature or characteristic of one of the depicted individuals or photographs is so unique or distinctive that it draws the viewer's attention to that photograph, thereby indicating that the police have selected that particular individual" ( People v. Marryshow, 162 A.D.3d 1313, 1313, 79 N.Y.S.3d 377 [2018] [citations omitted]; see People v. Johnson, 176 A.D.3d 1392, 1394, 113 N.Y.S.3d 294 [2019], lvs denied 34 NY3d 1129, 1131, 118 N.Y.S.3d 545, 554, 141 N.E.3d 501 [2020]; People v. Quintana, 159 A.D.3d 1122, 1126, 71 N.Y.S.3d 752 [2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ). Although it is not required that the individuals in a photo array be nearly identical to the defendant, their characteristics "must be sufficiently similar" to those of the defendant "so as to not ‘create a substantial likelihood that the defendant would be singled out for identification’ " ( People v. Lanier, 130 A.D.3d 1310, 1312, 15 N.Y.S.3d 241 [2015], lv denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015], quoting People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ; see People v. Cole, 150 A.D.3d 1476, 1477–1478, 52 N.Y.S.3d 744 [2017], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 428, 108 N.E.3d 502 ). All of the photos depict black males with similar eye color and facial hair with indistinguishable backgrounds behind them, in similar lighting conditions. Although, as defendant contends, the men are...