People v. McCracken

• Docket Number: 426 KA 17-00900
• Decision Date: 30 June 2023
• Citation: 2023 NY Slip Op 03614
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JAMES D. MCCRACKEN, DEFENDANT-APPELLANT.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03614

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMES D. MCCRACKEN, DEFENDANT-APPELLANT.

No. 426 KA 17-00900

Supreme Court of New York, Fourth Department

June 30, 2023

JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND GREENWOOD, JJ.

Appeal from a judgment of the Supreme Court, Monroe County (Judith A. Sinclair, J.), rendered March 13, 2017. The judgment convicted defendant upon a plea of guilty of murder in the second degree.

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of murder in the second degree (Penal Law § 125.25 [1]). Initially, we agree with defendant that the waiver of the right to appeal is invalid and unenforceable. Although Supreme Court informed defendant that the waiver of the right to appeal was "separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 N.Y.3d 248, 256 [2006]), the court also stated that defendant would be "waiving any and all rights to appeal from the judgment of conviction," including any pre-trial rulings and "all post-conviction challenges." Such overbroad and inaccurate statements render waivers of the right to appeal invalid (see People v Thomas, 34 N.Y.3d 545, 565 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]; People v Zabko, 206 A.D.3d 1642, 1642-1643 [4th Dept 2022]; People v Hughes, 199 A.D.3d 1332, 1333 [4th Dept 2021]). The written waiver did not cure the court's inaccurate statements. Rather, "it perpetuated the oral colloquy's mischaracterization of the waiver of the right to appeal as an absolute bar to the taking of an appeal by stating that defendant was '[waiving] any and all rights to appeal from the judgment' and that 'the plea agreement [and appeal waiver]... [would] be a complete and final disposition of this matter'" (People v Josue F., 191 A.D.3d 1483, 1484 [4th Dept 2021], lv denied 37 N.Y.3d 957 [2021]; see Thomas, 34 N.Y.3d at 566; Hughes, 199 A.D.3d at 1333).

Inasmuch as the waiver of the right to appeal is invalid, we address defendant's contention that the court erred in refusing to hold a hearing to address a suppression issue (see generally People v Kemp, 94 N.Y.2d 831, 833 [1999]). In his omnibus motion, defendant sought to suppress his statements to the police and tangible evidence seized from his home, contending that he was improperly arrested in his residence in violation of Payton v New York (445 U.S. 573 [1980]). Defendant was...