People v. Loper

• Decision Date: 19 March 2014
• Citation: 2014 N.Y. Slip Op. 01771,115 A.D.3d 875,981 N.Y.S.2d 806
• Parties: The PEOPLE, etc., respondent, v. Tamar LOPER, appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 875
981 N.Y.S.2d 806
2014 N.Y. Slip Op. 01771

The PEOPLE, etc., respondent,
v.
Tamar LOPER, appellant.

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

March 19, 2014.

[981 N.Y.S.2d 808]

Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Jennifer Hagan of counsel; Jonathan K. Yi on the brief), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

Appeals by the defendant from two judgments of the Supreme Court, Queens County (Griffin, J.), both rendered June 1, 2012, convicting him of criminal possession of a weapon in the second degree under Indictment No. 2426/11, and criminal possession of a controlled substance in the third degree under Indictment No. 10248/11, upon his pleas of guilty, and imposing sentences. The appeal from the judgment rendered under Indictment No. 10248/11 brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgments are reversed, on the law, that branch of the defendant's omnibus motion which was to suppress physical evidence under Indictment No. 10248/11 is granted, Indictment No. 10248/11 is dismissed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent with CPL 160.50 and to afford the defendant an opportunity to withdraw his plea of guilty under Indictment No. 2426/11.

On January 22, 2011, in a Queens County neighborhood in which numerous narcotics sales had taken place, a detective assigned to a narcotics unit was driving an unmarked police van when he saw a car containing two men pull over to the curb. The detective saw a third man approach the passenger side of the car, lean in, and apparently exchange something with the defendant, who was in the driver's seat. The detective did not see what was being exchanged and did not see any money passed between the men. Moreover, there is no evidence that the men were acting in a manner that could be described as furtive. Nonetheless, based on his training and his knowledge of how drug deliveries were made in the neighborhood, the detective suspected that he was witnessing a drug transaction. After positioning the van to block the defendant's car from proceeding, the detective and his partner got out of the van and approached the defendant's car. The third man, who was still standing by the side of the car, looked at the detective, appeared startled, and dropped something through the open passenger-side window. The detective ordered the three men not to move and, from outside the car, saw a “twist” of what he believed from his training and experience to be crack cocaine on the passenger seat

[981 N.Y.S.2d 809]

of the car. The detective and his partner arrested the men and recovered the crack cocaine they had seen, as well as additional crack cocaine they found in the car. The defendant was charged, under Indictment No. 10248/11 (hereinafter the drug indictment) with numerous drug felonies. A few months later, the defendant was arrested and charged under Indictment No. 2426/11 (hereinafter the weapon possession indictment) with numerous unrelated weapon possession felonies.

In January 2012, the Supreme Court conducted a suppression hearing in connection with the drug indictment. At the conclusion of the hearing, the court denied that branch of the defendant's omnibus motion which was to suppress the crack cocaine found in the defendant's car.

Several months later, the Supreme Court told the defendant that, in exchange for a “top-count” plea of guilty on each indictment, it would sentence him to the minimum term on each indictment and would order that the sentences be served concurrently. The defendant insisted that he wanted to retain the right to appeal the court's suppression ruling. The court responded that it, and the People, wanted the case to be over, and that the defendant could go to trial if he wished. Then, the court told the defendant that certain “technicalities” survived appeal waivers, and the defendant immediately told the court that, in reliance on the court's statement about the survival of some “technicalities,” he would accept the court's offer. The defendant then pleaded guilty on both indictments and purported to waive his right to appeal. He was never directly told that his appeal waiver would bar appellate review of his suppression claim.

On the appeal under Indictment No. 10248/11, the defendant challenges the appeal waiver and the denial of that branch of his omnibus motion which was to suppress the crack cocaine found in his car.

To be enforceable, an appeal waiver must be voluntary, knowing, and intelligent ( see People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108;People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). “An appellate waiver meets this standard when a defendant has ‘a full appreciation of the consequences' of such waiver” ( People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645, quoting People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022). The plea court must determine, in the first instance, whether an appeal waiver is voluntary, knowing, and intelligent “by considering all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused” ( People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022;see People v. Bradshaw, 18 N.Y.3d at 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645). Additionally, “ ‘though a ... court need not engage in any particular litany’ or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver, a ... court ‘must make certain that a defendant's understanding’ of the waiver ... is evident on the face of the record” ( People v. Bradshaw, 18 N.Y.3d at 265, 938 N.Y.S.2d 254, 961 N.E.2d 645, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). A written waiver may cure an ambiguity in an oral colloquy ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222), but only if the oral colloquy on the record reflects the defendant's understanding of its contents ( see People v. Bradshaw, 18 N.Y.3d at 265, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645;

[981 N.Y.S.2d 810]

People v. Nugent, 109 A.D.3d 625, 625, 970 N.Y.S.2d 634;People v. Parris, 106 A.D.3d 555, 556, 965 N.Y.S.2d 125;cf. People v. Simmons, 113 A.D.3d 420, 977 N.Y.S.2d 889;People v. Morey, 110 A.D.3d 1378, 975 N.Y.S.2d 201).

Here, the Supreme Court discussed the appeal waiver extensively, but never made clear that it would bar appellate review of the...