People v. Ocasio

• Docket Number: 818 KA 20-00312
• Decision Date: 22 December 2023
• Citation: 2023 NY Slip Op 06623
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. AGUSTIN OCASIO, DEFENDANT-APPELLANT.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 06623

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
AGUSTIN OCASIO, DEFENDANT-APPELLANT.

No. 818 KA 20-00312

Supreme Court of New York, Fourth Department

December 22, 2023

JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT.

AGUSTIN OCASIO, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., BANNISTER, GREENWOOD, NOWAK, AND DELCONTE, JJ.

Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered November 20, 2019. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the first degree and attempted criminal possession of a weapon 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 his plea of guilty, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]) and attempted criminal possession of a weapon in the second degree (§§ 110.00, 265.03 [3]). The conviction arose from a long-term narcotics investigation involving physical surveillance and multiple eavesdropping warrants, including one for a cellular telephone referred to as "Ocasio Phone 2" that was identified as being "utilized by" defendant (Phone 2 warrant). In April 2019, a search warrant was issued based, in part, on evidence obtained from the Phone 2 warrant. During execution of the search warrant, a kilogram of cocaine and a loaded handgun were found in a heating duct in the basement of the multi-unit apartment house at which defendant resided.

Preliminarily, defendant contends in his main brief, and we agree, that, contrary to the People's assertion, the waiver of the right to appeal is invalid (see generally People v Thomas, 34 N.Y.3d 545, 565 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]). The language in the written waiver is inaccurate and misleading insofar as it purports to waive "any and all rights to appeal," and Supreme Court's advisement during the oral colloquy that there are, nonetheless, "certain issues that are always preserved for appeal[,] [c]onstitutional issues, jurisdictional issues," was not sufficient to counter that inaccuracy (see People v Fernandez, 218 A.D.3d 1257, 1257-1258 [4th Dept 2023], lv denied 40 N.Y.3d 1012 [2023]; People v Hunter, 203 A.D.3d 1686, 1686 [4th Dept...