People v. Linear

• Decision Date: 30 December 2021
• Docket Number: 111530
• Citation: 200 A.D.3d 1498,159 N.Y.S.3d 233
• Parties: The PEOPLE of the State of New York, Respondent, v. Naeem LINEAR, Also Known as Nos, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1498
159 N.Y.S.3d 233

The PEOPLE of the State of New York, Respondent,
v.
Naeem LINEAR, Also Known as Nos, Appellant.

111530

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

Calendar Date: November 18, 2021
Decided and Entered: December 30, 2021

159 N.Y.S.3d 235

Aaron A. Louridas, Delmar, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered September 26, 2016, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree (four counts), criminal possession of a controlled substance in the third degree (four counts) and conspiracy in the fourth degree (four counts).

In October 2015, defendant was charged by indictment with two counts of criminal sale of a controlled substance in the third degree, two counts of criminal possession of a controlled substance in the third degree and two counts of conspiracy in the fourth degree. These charges were the result of an investigation that identified defendant in relation to two separate drug transactions, on April 14, 2015 and April 15, 2015. Subsequently, in December 2015, defendant was indicted on identical charges – two counts of criminal sale of a controlled substance in the third degree, two counts of criminal possession of a controlled substance in the third degree and two counts of conspiracy in the fourth degree – for additional drug transactions on March 24, 2015 and "between March 25, 2015 to March 26, 2015." Separate Wade hearings were held on each indictment, after which County Court denied defendant's request to suppress the identifications. Subsequently, the two indictments were consolidated for trial upon consent of the parties. Thereafter, on the day trial was set to commence, defendant entered into an agreement and pleaded guilty to all 12 counts and purportedly waived his right to appeal. Thereafter, defendant was sentenced, as a second felony offender, to

159 N.Y.S.3d 236

concurrent prison terms of eight years, to be followed by three years of postrelease supervision, for each of his sale and possession convictions and to lesser concurrent prison terms related to his conspiracy convictions. Defendant appeals.

Initially, we agree with defendant that his appeal waiver was invalid inasmuch as language in the written waiver of appeal is "overbroad and inaccurate with regard to the scope of the waiver[ ]" ( People v. Jones, 199 A.D.3d 1069, 1070, 156 N.Y.S.3d 552 [2021] ), and County Court's brief oral colloquy did not cure these defects ( People v. Mayo, 195 A.D.3d 1313, 1314, 149 N.Y.S.3d 379 [2021] ). In light of the invalid appeal waiver, defendant's remaining challenges are not precluded. However, defendant's assertion regarding the voluntariness and/or factual sufficiency of his plea is unpreserved for our review because defendant did not make an appropriate postallocution motion (see People v. Brown, 191 A.D.3d 1047, 1048, 137 N.Y.S.3d 748 [2021] ; People v. Brito, 184 A.D.3d 900, 901, 124 N.Y.S.3d 749 [2020] ). "Further, as defendant did not make any statements during the plea colloquy that were inconsistent with his guilt, negated an element of the charged crime[s] or otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement does not apply" ( People v. Brito, 184 A.D.3d at 901, 124 N.Y.S.3d 749, citing People v. Schmidt, 179 A.D.3d 1384, 1385, 114 N.Y.S.3d 737 [2020] ). Defendant's ineffective assistance of counsel argument is also unpreserved for his failure to make an appropriate postallocution motion (see People v. Thompson, 193 A.D.3d 1186, 1187, 145 N.Y.S.3d 204 [2021] ). In any event, counsel's alleged inadequacies involve matters outside of the record that are more appropriate for a CPL article 440 motion (see id. ).

Defendant also contends that County Court erred in failing to suppress pretrial identification of defendant from two photo arrays as they were unduly suggestive. "A photo array is unduly suggestive...