People v. Monk

• Decision Date: 31 December 2020
• Docket Number: 110365,110364
• Citation: People v. Monk, 189 A.D.3d 1970, 138 N.Y.S.3d 700 (N.Y. App. Div. 2020)
• Parties: The PEOPLE of the State of New York, Respondent, v. Jovon L. MONK, Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1970

138 N.Y.S.3d 700

The PEOPLE of the State of New York, Respondent,

v.Jovon L. MONK, Appellant.

110364

110365

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

Calendar Date: November 24, 2020

Decided and Entered: December 31, 2020

Marlene O. Tuczinski, Chatham, for appellant.

Matthew Van Houten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), for respondent.

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

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the County Court of Tompkins County(Cassidy, J.), rendered May 26, 2017, convicting defendant upon his plea of guilty of the crimes of attempted criminal possession of a weapon in the second degree and criminal sale of a controlled substance in the third degree.

Defendant was charged in two separate indictments, the first of which charged him with criminal sale of a controlled substance in the third degree for selling heroin.The second indictment charged defendant with criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and criminal possession of a firearm stemming from the discovery of a loaded firearm during a search of a vehicle in which he was a passenger.A suppression hearing was held to address, among other things, defendant's motions to suppress evidence seized from the vehicle.After the close of proof at the hearing, but prior to County Court rendering a decision, defendant entered into a plea agreement.Pursuant to the plea agreement, defendant purportedly waived his right to appeal and pleaded guilty to criminal sale of a controlled substance in the third degree as charged in the first indictment and to the reduced charge of attempted criminal possession of a weapon in the second degree in satisfaction of the second indictment.Defendant was sentenced, as a predicate felon, to concurrent prison terms of three years, followed by three years of postrelease supervision, for his conviction of criminal sale of a controlled substance in the third degree, and four years, followed by five years of postrelease supervision, for his conviction of attempted criminal possession of a weapon in the second degree.Defendant appeals.

Initially, we agree with defendant that the appeal waiver was invalid.To that end, although County Court explained the separate and distinct nature of the right to appeal, the otherwise brief explanation of the appeal waiver was overly broad and tended to impermissibly signify a complete bar to any appellate rights (seePeople v. Thomas,34 N.Y.3d 545, 566–567, 122 N.Y.S.3d 226, 144 N.E.3d 970[2019];People v. Barrales,179 A.D.3d 1313, 1314, 118 N.Y.S.3d 263[2020] ), and the written appeal waiver – which indicates that defendant waives his right to appeal only in connection with his guilty plea to criminal sale of a controlled substance in the third degree – is insufficient to clarify any misleading information.Moreover, there is no indication in the record that defendant conferred with counsel, read the written waiver or understood its consequences, or at what point the written waiver was executed (seePeople v. Brito,184 A.D.3d 900, 900, 124 N.Y.S.3d 749[2020] ).Given these circumstances, we cannot say that defendant knowingly, voluntarily and intelligently waived his right to appeal (seeid. at 900–901, 124 N.Y.S.3d 749;People v. Barrales,179 A.D.3d at 1314–1315, 118 N.Y.S.3d 263 ).

Turning to the merits, we affirm.Defendant first argues that his motion to suppress evidence seized from the vehicle should have been, or should be,...