People v. Herbert

• Decision Date: 23 February 2017
• Citation: 47 N.Y.S.3d 500,147 A.D.3d 1208
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeremiah HERBERT, Appellant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1208
47 N.Y.S.3d 500

The PEOPLE of the State of New York, Respondent,
v.
Jeremiah HERBERT, Appellant.

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

Feb. 23, 2017.

47 N.Y.S.3d 501

Gail B. Rubenfeld, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.

Before: PETERS, P.J., EGAN JR., ROSE, DEVINE and AARONS, JJ.

PETERS, P.J.

147 A.D.3d 1208

Appeals (1) from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered December 19, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree, and (2) by permission, from an order of said court, entered January 6, 2015 in Sullivan County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged with criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts). Following the denial of his motion to suppress statements made to police and physical evidence seized upon his arrest, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree in satisfaction of the charges and purportedly waived his right to appeal. In accordance with the plea agreement, County Court sentenced defendant as a second felony offender to eight years in prison to be followed by two years of postrelease supervision. Defendant's subsequent CPL article 440 motion to vacate the judgment of conviction was denied without a hearing. He now appeals from the judgment of conviction and, by permission, from the order denying his motion to vacate.

Initially, we find that defendant's waiver of the right to appeal was not valid. During the plea colloquy, County Court failed to adequately convey "that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see

147 A.D.3d 1209

People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Lemon, 137 A.D.3d 1422, 1423, 27 N.Y.S.3d 726 [2016], lv. denied 27 N.Y.3d 1135, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ; People v. Blackmon, 122 A.D.3d 1071, 1072, 996 N.Y.S.2d 769 [2014], lv. denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015] ). Although defendant executed a detailed written waiver, there was no attempt by the court to " ensure that defendant understood the content or consequences of the appeal waiver" (People v. Williams, 132 A.D.3d 1155, 1155, 20 N.Y.S.3d 176 [2015], lv. denied 27 N.Y.3d 1157, 39 N.Y.S.3d 390, 62 N.E.3d 130 [2016] ; accord People v. Gonzalez, 138 A.D.3d 1353, 1354, 28 N.Y.S.3d 919 [2016] ; see People v. Lemon, 137 A.D.3d at 1423, 27 N.Y.S.3d 726 ; People v. Ritter, 124 A.D.3d 1133, 1134, 2 N.Y.S.3d 693 [2015] ).

Because the appeal waiver is invalid, defendant is not precluded from

47 N.Y.S.3d 502

challenging County Court's denial of his suppression motion. Nevertheless, we find no merit in his claim that the statements he made to police and the physical evidence seized upon his arrest should have been suppressed because the arresting officer lacked probable cause to arrest him. "Even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer acts upon the direction of or as a result of communication with a superior or fellow officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest" (People v. Taylor, 134 A.D.3d 1165, 1169, 20 N.Y.S.3d 708 [2015] [internal quotation marks, brackets and citations omitted], lv. denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ; accord People v. Ramirez–Portoreal, 88 N.Y.2d 99, 113, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ; see People v. Carter, 140 A.D.3d 1394, 1395, 33 N.Y.S.3d 577 [2016], lv. denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ). Here, probable cause was established by defendant's sale of heroin to an undercover officer on the day before his arrest (see People v. Stroman, 106 A.D.3d 1268, 1269–1270, 964 N.Y.S.2d 766 [2013], lv. denied 21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013] ; People v. Perez, 47 A.D.3d 1071, 1072–1073, 849 N.Y.S.2d 355 [2008] ). The arresting officer testified that, although he had no personal knowledge of defendant's activities at the time of the drug transaction, he was present at the scene. "While it would have been better practice to elicit direct evidence of a communication between the officers, the suppression court was not precluded from drawing the inference from the circumstantial evidence presented" that the information regarding the drug transaction had been conveyed to the arresting officer (People v. Ramirez–Portoreal, 88 N.Y.2d at 114, 643 N.Y.S.2d 502, 666 N.E.2d 207 ; see People v. Darby, 287 A.D.2d 300, 300, 731 N.Y.S.2d 683 [2001], lv. denied 97 N.Y.2d 753, 742 N.Y.S.2d 613, 769 N.E.2d 359 [2002] ). Accordingly, the arrest of defendant was lawful, and County Court properly denied defendant's motion to suppress (see People v. Ramirez–Portoreal, 88 N.Y.2d at 114, 643 N.Y.S.2d 502, 666 N.E.2d 207 ; People v. Taylor, 134 A.D.3d at 1169–1170, 20 N.Y.S.3d 708; People v. Garcia, 131 A.D.3d 732, 734, 14 N.Y.S.3d 809 [2015], lv. denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ).

147 A.D.3d 1210

We do, however, agree with defendant that his guilty plea was not knowing, voluntary and intelligent because County Court failed to advise him of the rights that he was waiving by pleading guilty (see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 [1969] ; People v. Tyrell, 22 N.Y.3d 359, 365, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Proper, 133 A.D.3d 918, 919, 18 N.Y.S.3d 793 [2015] ). Although defendant's challenge to the plea was not preserved through an appropriate postallocution motion (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Sommers, 140 A.D.3d 1537, 1538, 33 N.Y.S.3d 789 [2016], lv. denied 28 N.Y.3d 974, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ), we exercise our interest of justice jurisdiction to reverse the judgment (see People v. Mones, 130 A.D.3d 1244, 1245, 13 N.Y.S.3d 686 [2015] ; People v. Klinger, 129 A.D.3d 1115, 1116–1117, 10 N.Y.S.3d 366 [2015] ). "While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights" (People v. Lowe, 133 A.D.3d 1099, 1100, 21 N.Y.S.3d 399 [2015] [internal quotation marks, brackets

47 N.Y.S.3d 503

and citations omitted]; see People v. Tyrell, 22 N.Y.3d at 365–366, 981 N.Y.S.2d 336, 4 N.E.3d 346 ; People v. Mones, 130 A.D.3d at 1245, 13 N.Y.S.3d 686 ; People v. Klinger, 129 A.D.3d at 1116–1117, 10 N.Y.S.3d 366 ...