People v. Madden

• Citation: 52 N.Y.S.3d 176,148 A.D.3d 1576
• Parties: The PEOPLE of the State of New York, Respondent, v. Moses MADDEN, III, Defendant–Appellant.
• Decision Date: 24 March 2017
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1576
52 N.Y.S.3d 176

The PEOPLE of the State of New York, Respondent,
v.
Moses MADDEN, III, Defendant–Appellant.

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

March 24, 2017.

52 N.Y.S.3d 177

Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.

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

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of reckless endangerment in the first degree (Penal Law § 120.25 ) and aggravated criminal contempt (§ 215.52[1] ). As the People correctly concede, defendant's written waiver of the right to appeal is invalid because the record establishes that Supreme Court did not explain the written waiver to defendant or ascertain that he understood its contents (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Terry, 138 A.D.3d 1484, 1484, 30 N.Y.S.3d 464, lv. denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 ). Indeed, a "written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal" (People v. Banks, 125 A.D.3d 1276, 1277, 2 N.Y.S.3d 714, lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 [internal quotation marks omitted] ). Moreover, the record does not support the People's contention that defendant pleaded guilty before the court ruled on his suppression motion and thus forfeited his challenge to the court's suppression determination (see generally People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 ; People v. Scaccia, 6 A.D.3d 1105, 1105, 776 N.Y.S.2d 420, lv. denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837 ). Although the court noted during the plea colloquy that it had not yet issued a written order denying defendant's motion, the court did issue an oral suppression ruling, and a written order is not required in seeking to review an adverse suppression ruling pursuant to

52 N.Y.S.3d 178

CPL 710.70(2) (see People v. Elmer, 19 N.Y.3d 501, 505, 950 N.Y.S.2d 77, 973 N.E.2d 172 ). Contrary to the People's contention, the court's comments that it intended to issue a written order did not constitute a retraction of its oral order.

On the merits, however, we conclude that the court properly refused to suppress defendant's statements to the police on the ground that his indelible right to counsel was allegedly violated. Defendant failed to meet his burden of establishing that his indelible right to counsel had attached before he made his statements to the police (see People v. Castor, 128 A.D.3d 1357, 1358, 8 N.Y.S.3d 746, lv. denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 ; People v.

Brown, 46 A.D.3d 1128, 1129, 847 N.Y.S.2d 729 ; see generally People v. Cohen, 90 N.Y.2d...