People v. Holz

• Decision Date: 21 December 2018
• Docket Number: 798,KA 16–00065
• Citation: 167 A.D.3d 1417,90 N.Y.S.3d 724
• Parties: The PEOPLE of the State of New York, Respondent, v. David M. HOLZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1417
90 N.Y.S.3d 724

The PEOPLE of the State of New York, Respondent,
v.
David M. HOLZ, Defendant–Appellant.

798
KA 16–00065

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

December 21, 2018

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (LANA M. ULRICH OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (JOSEPH R. PLUKAS OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND TROUTMAN, JJ.

90 N.Y.S.3d 725

MEMORANDUM AND ORDER

167 A.D.3d 1418

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the second degree ( Penal Law § 140.25[2] ) as charged in count one of a two-count indictment. Count one of the indictment alleged that defendant committed burglary in the second degree by unlawfully entering a dwelling on October 1, 2014; count two of the indictment alleged that defendant committed a separate act of burglary in the second degree by unlawfully entering the same dwelling on October 3, 2014. Defendant's plea to count one was accepted in full satisfaction of both counts of the indictment.

Defendant now challenges Supreme Court's refusal to suppress jewelry recovered from his person during a police stop on October 3. It is undisputed, however, that the aforementioned jewelry relates solely to the October 3 burglary charged in count two, a crime to which defendant did not plead guilty and of which he does not stand convicted (see generally CPL 220.30[2] ; People v. Alexander, 160 A.D.3d 1370, 1370–1371, 76 N.Y.S.3d 675 [4th Dept. 2018], lv denied 32 N.Y.3d 1001, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ). Indeed, the two burglaries charged in the indictment occurred "on two different dates and were completely separate and distinct acts, notwithstanding the fact that they occurred at the same location" ( People v. Suits, 158 A.D.3d 949, 951, 71 N.Y.S.3d 664 [3d Dept. 2018] ). Thus, the court's refusal to suppress physical evidence relevant solely to count two is not reviewable on defendant's appeal from a judgment rendered solely on count one (see CPL 710.70[2] ; People v. Dorsey, 122 A.D.2d 393, 394, 505 N.Y.S.2d 210 [3d Dept. 1986] ; People v. Corti, 88 A.D.2d 345, 350–351, 453 N.Y.S.2d 439 [2d Dept. 1982] ; People v. Rivera, 57 A.D.2d 811, 811, 395 N.Y.S.2d 20 [1st Dept. 1977] ; cf. People v. Brown, 263 A.D.2d 613, 614, 693 N.Y.S.2d 297 [3d Dept. 1999], lv denied 94 N.Y.2d 877, 705 N.Y.S.2d 9, 726 N.E.2d 486 [2000] ).

Our conclusion is rooted in the limits of our appellate jurisdiction. Put simply, "the judgment of conviction on appeal here did not ensue from the denial of the motion to suppress and the latter is, therefore, not reviewable" pursuant to CPL 710.70(2) ( Rivera, 57 A.D.2d at 811, 395 N.Y.S.2d 20 [emphasis added]; see Corti, 88 A.D.2d at 350–351, 453 N.Y.S.2d 439 ). Unlike the dissent, we agree with a well-established line of cases from the First, Second, and Third

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Departments that CPL 710.70(2)"should not be read so broadly so as to entitle a defendant who has pleaded guilty in one [count] to appellate review of the denial of a suppression motion in another [count] in which no judgment was rendered but which was covered by the plea" ( Dorsey, 122 A.D.2d at 394, 505 N.Y.S.2d 210 ; see Corti, 88 A.D.2d at 350–351, 453 N.Y.S.2d 439 ; Rivera, 57 A.D.2d at 811, 395 N.Y.S.2d 20 ). Although Dorsey and Rivera involved separate indictments rather than separate counts of the same indictment, that distinction is inconsequential given the "general rule that ‘each count in an indictment is to be treated as if it were a separate indictment’ " ( Alexander, 160 A.D.3d at 1370, 76 N.Y.S.3d 675, quoting People v. Ardito, 86 A.D.2d 144, 163, 449 N.Y.S.2d 202 [1st Dept. 1982], affd for reasons stated 58 N.Y.2d 842, 460 N.Y.S.2d 22, 446 N.E.2d 778 [1983] ).

The dissent conflates reviewability (see CPL 710.70[2] ) with harmlessness (see CPL 470.05[1] ). In this context, the doctrine of reviewability is concerned with whether the judgment "ensu[ed]" from the suppression determination ( CPL 710.70[2] ); the doctrine of harmlessness,

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on the other hand, is concerned with whether there is any " ‘reasonable possibility’ " that a reviewable suppression determination " ‘contributed to the plea’ " ( People v. Wells, 21 N.Y.3d 716, 719, 977 N.Y.S.2d 712, 999 N.E.2d 1157 [2013], quoting People v. Grant, 45 N.Y.2d 366, 379, 408 N.Y.S.2d 429, 380 N.E.2d 257 [1978] ). Indeed, the two cases upon which the dissent primarily relies, People v. Kendrick, 128 A.D.3d 1482, 8 N.Y.S.3d 807 [4th Dept. 2015] and People v. Carpenter, 213 A.D.2d 747, 623 N.Y.S.2d 361 [3d Dept. 1995], address only the potential harmlessness of an undisputedly reviewable suppression determination. Neither Kendrick nor Carpenter examine the threshold question of whether the underlying suppression determinations were reviewable in the first instance.

In Kendrick, the defendant unsuccessfully moved to suppress various drugs and then pleaded guilty to a lesser-included charge of criminal possession of a controlled substance in the second degree in full satisfaction of a seven-count indictment charging him with, among other crimes, two counts of criminal possession of a controlled substance in the first degree ( id., 128 A.D.3d at 1483, 8 N.Y.S.3d 807 ). On appeal, the People "concede[d] that the [motion] court erred in determining that defendant lacked standing to contest the search, [but] they nevertheless contend[ed] that the error [was] harmless" because, in the People's view, the defendant would have invariably pleaded guilty to the lesser-included charge given the favorable sentencing promise ( id. at 1482–1483, 8 N.Y.S.3d 807 ). We rejected the People's claim of harmless error because "[t]here [was] a reasonable possibility that, had the court granted defendant a suppression hearing and then granted the motion, defendant would not have pleaded guilty" to the lesser-included charge ( id. at 1483, 8 N.Y.S.3d 807 ).

167 A.D.3d 1420

Here, in stark contrast to Kendrick, the issue is not whether the suppression ruling is harmless, but rather whether we have jurisdiction to review that ruling at all given that it is unrelated to the "completely separate and distinct" crime to which defendant pleaded guilty ( Suits, 158 A.D.3d at 951, 71 N.Y.S.3d 664 ). Kendrick did not consider, much less address, the dispositive jurisdictional issue in this case, namely, whether we can review a suppression ruling that "bore no relation to the charge to which defendant pleaded guilty" ( Dorsey, 122 A.D.2d at 394, 505 N.Y.S.2d 210 ).

Nor was there any reason to have considered that issue in Kendrick. After all, the defendant pleaded guilty to a lesser-included drug charge that, as we explicitly noted, was "related to cocaine that was the subject of [his] suppression motion" ( id., 128 A.D.3d at 1483, 8 N.Y.S.3d 807 ). Here, in contrast, defendant pleaded guilty to one of the two independent and discrete crimes charged in the indictment, and the crime to which he pleaded guilty was wholly unrelated to the suppression motion. Thus, unlike this case, it simply cannot be said that the challenged suppression ruling in Kendrick "bore no relation to the charge to which [the] defendant pleaded guilty" ( Dorsey, 122 A.D.2d at 394, 505 N.Y.S.2d 210 ).

The dissent's reliance on Carpenter is equally unavailing, and that case does not in any way suggest that the Third Department has "abandoned" the rule of Dorsey. In Carpenter, the defendant, a drug dealer, pleaded guilty to murder after the motion court refused to suppress drugs recovered from his residence ( id., 213 A.D.2d at 747–748, 623 N.Y.S.2d 361 ). According to the Third Department, the murder was an "act of reprisal" stemming from the defendant's belief that the victim, a rival dealer, had previously robbed his associates of

90 N.Y.S.3d 727

drugs and money ( People v. Carpenter, 240 A.D.2d 863, 863, 658 N.Y.S.2d 542 [3d Dept. 1997], lv denied 90 N.Y.2d 902, 663 N.Y.S.2d 514, 686 N.E.2d 226 [1997] ).

Under those circumstances, the drugs at issue in Carpenter were not, as the dissent characterizes, "separate" and "unrelated" to the murder charge to which the defendant pleaded guilty. To the contrary, the drugs supplied the context and motive for the murder and, by refusing to suppress those drugs, the court effectively admitted a significant piece of evidence tying the defendant to the murder. The fact that the defendant did not plead guilty to criminally possessing the subject drugs does not mean that such drugs were "separate" and "unrelated" to the drug-related murder to which he did plead guilty. Put simply, the murder plea in Carpenter "ensu[ed]" from the motion court's refusal to suppress the very evidence that established his motive to commit the murder, and that suppression determination was therefore reviewable on appeal from the resultant judgment ( CPL 710.70[2] ).

167 A.D.3d 1421

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