People v. Cooper
| Court | New York Supreme Court Appellate Division |
| Writing for the Court | PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ. |
| Citation | 926 N.Y.S.2d 777,85 A.D.3d 1594,2011 N.Y. Slip Op. 04886 |
| Parties | The PEOPLE of the State of New York, Respondent,v.Kevin O. COOPER, Defendant–Appellant. |
| Decision Date | 10 June 2011 |
85 A.D.3d 1594
926 N.Y.S.2d 777
2011 N.Y. Slip Op. 04886
The PEOPLE of the State of New York, Respondent,
v.
Kevin O. COOPER, Defendant–Appellant.
Supreme Court, Appellate Division, Fourth Department, New York.
June 10, 2011.
[926 N.Y.S.2d 778]
Timothy P. Donaher, Public Defender, Rochester (Brian Shiffrin of Counsel), for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ.MEMORANDUM:
[85 A.D.3d 1594] On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), defendant contends that his waiver of the right to appeal was not valid because the record does not establish that he understood that right and waived it voluntarily, knowingly, and intelligently. We agree. Although “there is no requirement that [County C]ourt engage in any particular litany in order to satisfy itself that [those] standards have been met, a knowing and voluntary waiver cannot be inferred from a silent record” ( People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108). The record establishes that the court instructed defendant to execute a written waiver of the right to appeal and that defendant did as instructed, but there was no colloquy between the court and defendant regarding the waiver ( see id.; cf. People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222). Thus, defendant's further contention that the court [85 A.D.3d 1595] erred in refusing to suppress the cocaine found on his person and his statements to the police because he was arrested and searched without probable cause is not
encompassed by his invalid waiver of the right to appeal.
We conclude, however, that defendant forfeited any right to challenge the court's suppression ruling. Pursuant to CPL 710.70(2), an “order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.” Here, the court issued a bench decision with respect to those parts of defendant's omnibus motion seeking to suppress the cocaine and his statements, but defendant pleaded guilty before the court issued an order, and thus CPL 710.70(2) is not applicable ( see People v. Ellis, 73 A.D.3d 1433, 903 N.Y.S.2d 615, lv. denied 15 N.Y.3d 851, 909...
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People v. Hodge, 261
...from defendant, and thus County Court properly refused to suppress the firearm and statements (see generally People v. Cooper , 85 A.D.3d 1594, 1595, 926 N.Y.S.2d 777 [4th Dept. 2011], affd 19 N.Y.3d 501, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] ; People v. Malone , 289 A.D.2d 1011, 1011, 735......
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People v. Hodge, 261 KA 20-01435
...statements from defendant, and thus County Court properly refused to suppress the firearm and statements (see generally People v Cooper, 85 A.D.3d 1594, 1595 [4th Dept 2011], affd 19 N.Y.3d 501 [2012]; People v Malone, 289 A.D.2d 1011, 1011 [4th Dept 2001], lv denied 97 N.Y.2d 757 [2002]). ......
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People v. Fox
...seized from defendant's person and the backseat of the patrol car were discovered incident to a lawful arrest (see People v. Cooper, 85 A.D.3d 1594, 1595, 926 N.Y.S.2d 777, affd. 19 N.Y.3d 501, 950 N.Y.S.2d 77, 973 N.E.2d 172 ). We reject defendant's further contention that the evidence is ......
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People v. Elmer
...that defendant forfeited his statutory right of review because he had entered a guilty plea prior to the transcription of the oral order (85 A.D.3d 1594, 1595, 926 N.Y.S.2d 777 [4th Dept.2011] ). [19 N.Y.3d 507]In that court's view, section 710.70(2) was inapplicable because it did not perm......
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People v. Hodge, 261
...from defendant, and thus County Court properly refused to suppress the firearm and statements (see generally People v. Cooper , 85 A.D.3d 1594, 1595, 926 N.Y.S.2d 777 [4th Dept. 2011], affd 19 N.Y.3d 501, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] ; People v. Malone , 289 A.D.2d 1011, 1011, 735......
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People v. Hodge, 261 KA 20-01435
...statements from defendant, and thus County Court properly refused to suppress the firearm and statements (see generally People v Cooper, 85 A.D.3d 1594, 1595 [4th Dept 2011], affd 19 N.Y.3d 501 [2012]; People v Malone, 289 A.D.2d 1011, 1011 [4th Dept 2001], lv denied 97 N.Y.2d 757 [2002]). ......
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People v. Fox
...seized from defendant's person and the backseat of the patrol car were discovered incident to a lawful arrest (see People v. Cooper, 85 A.D.3d 1594, 1595, 926 N.Y.S.2d 777, affd. 19 N.Y.3d 501, 950 N.Y.S.2d 77, 973 N.E.2d 172 ). We reject defendant's further contention that the evidence is ......
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People v. Elmer
...that defendant forfeited his statutory right of review because he had entered a guilty plea prior to the transcription of the oral order (85 A.D.3d 1594, 1595, 926 N.Y.S.2d 777 [4th Dept.2011] ). [19 N.Y.3d 507]In that court's view, section 710.70(2) was inapplicable because it did not perm......