People v. Hughes

• Decision Date: 12 November 2021
• Docket Number: 725,KA 17-01344
• Parties: The PEOPLE of the State of New York, Respondent, v. Samantha L. HUGHES, Also Known as Sam, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 1332
157 N.Y.S.3d 203

The PEOPLE of the State of New York, Respondent,
v.
Samantha L. HUGHES, Also Known as Sam, Defendant-Appellant.

725
KA 17-01344

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

Entered: November 12, 2021

ANDREW G. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

157 N.Y.S.3d 205

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, that part of defendant's omnibus motion seeking to suppress her statements is granted to the extent of suppressing any statements made after 5:00 p.m. on December 6, 2015, and the matter is remitted to Supreme Court, Monroe County, for further proceedings on the indictment.

Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of kidnapping in the second degree ( Penal Law § 135.20 ). We agree with defendant, and the People correctly concede, that the waiver of the right to appeal is invalid. Defendant orally waived her right to appeal and executed a written waiver of the right to appeal. The language in the written waiver is inaccurate and misleading insofar as it purports to impose "an absolute bar to the taking of a direct appeal" and purports to deprive defendant of her "attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal" ( People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ). Supreme Court's colloquy regarding the waiver of the right to appeal somewhat remedied the mischaracterization of the waiver as an absolute bar to the right to appeal inasmuch as the court referred to issues that would still be preserved for appeal, including ineffective assistance of counsel and "some other constitutional issues." The court's verbal statements, however, did nothing to counter the other inaccuracies set forth in the written appeal waiver. A "waiver[ ] cannot be upheld ... on the theory that the offending language can be ignored and that [it is] enforceable based on the court's few correctly spoken terms" ( id. at 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).

Although defendant's contention that she received ineffective assistance of counsel survives her guilty plea to the extent that she contends that her plea was infected by the allegedly ineffective assistance (see People v. Ollman , 147 A.D.3d 1452, 1453, 46 N.Y.S.3d 380 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 721, 80 N.E.3d 414 [2017] ), we reject that contention. Defendant contends that defense counsel was ineffective by failing to argue at the Huntley hearing that the police violated defendant's rights by questioning her without Miranda warnings and failing to seek suppression of her confession. The record shows, however, that defense counsel indeed sought suppression of defendant's statements and argued, inter alia, that defendant was in police custody and was not given Miranda warnings.

Defendant next contends that the court erred in refusing to suppress statements that she made to Rochester Police Department investigators. We agree with defendant in part. It is well settled that

157 N.Y.S.3d 206

Miranda warnings must be given when a defendant is subject to custodial interrogation (see People v. Paulman , 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005] ; People v. Berg , 92 N.Y.2d 701, 704, 685 N.Y.S.2d 906, 708 N.E.2d 979 [1999] ; People v. Torres , 172 A.D.3d 758, 760, 99 N.Y.S.3d 363 [2d Dept. 2019] ). "In determining whether suppression is required, the court ‘should consider: (1) the amount of time the defendant spent with the police, (2) whether his [or her] freedom of action was restricted in any significant manner, (3) the location and atmosphere in which the defendant was questioned, (4) the degree of cooperation exhibited by the defendant, (5) whether he [or she] was apprised of his [or her] constitutional rights, and (6) whether the questioning was investigatory or accusatory in nature’ " ( People v. Lunderman , 19 A.D.3d 1067, 1068-1069, 796 N.Y.S.2d 481 [4th Dept. 2005], lv denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ). In determining whether a defendant is in custody, the subjective belief of the defendant and the subject intent of the officers is not...