People v. Cole

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before KUPFERMAN
• Citation: People v. Cole, 564 N.Y.S.2d 263, 165 A.D.2d 737 (N.Y. App. Div. 1990)
• Decision Date: 18 September 1990
• Parties: The PEOPLE of the State of New York, Respondent, v. Perry COLE, Defendant-Appellant.

Page 263

564 N.Y.S.2d 263

165 A.D.2d 737

The PEOPLE of the State of New York, Respondent, v. Perry COLE, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Sept. 18, 1990.

Before KUPFERMAN, J.P., and SULLIVAN, MILONAS, ELLERIN and SMITH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Thomas B. Galligan, J., at suppression hearing, plea, and sentence), rendered April 9, 1987, convicting defendant, of robbery in the first degree, and sentencing him, as a persistent violent felon, to an indeterminate term of 10 years' to life imprisonment, unanimously affirmed.

On June 7, 1986, defendant robbed Patricia Dieringer at knifepoint, and escaped in a stolen white Thunderbird whose license number was recorded by a witness. On June 16, 1986, defendant attempted to rob another victim, and fled in the same Thunderbird. After his arrest later that day in the stolen Thunderbird, defendant appeared in two lineups, where he was identified by Dieringer, and two witnesses to her robbery, and by the victim of the June 16 attempted robbery. At the conclusion of a Wade hearing, after viewing the lineup photographs, the court concluded that the composition of and the procedures followed in the lineups were fair, and denied defendant's motion to suppress identification testimony.

Immediately thereafter, defendant offered to plead guilty to robbery in the first degree in satisfaction of the consolidated indictment. As part of the plea agreement, the court promised to sentence defendant to 10 years to life (the minimum period allowable) if he was later found to be a persistent violent felony offender, and after having been so advised, the defendant agreed to waive his right to appeal the denial of his Wade motion.

In view of defendant's waiver, we decline to consider the issue defendant now seeks to raise challenging the propriety of the court's denial of his suppression motions. A knowing, voluntary and intelligent waiver of appellate rights, which is part of a reasonable plea bargain, is enforceable (People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). People v. Ramos, 152 A.D.2d 209, 548 N.Y.S.2d 166, relied upon by the defendant, is clearly distinguishable. In Ramos, defense counsel had only mentioned waiver after defendant entered his plea and had been arraigned on the predicate felony statement filed by the People. Nothing in the record in Ramos indicated that defendant even knew that the...