People v. Powell
| Decision Date | 02 June 2016 |
| Citation | 140 A.D.3d 401,2016 N.Y. Slip Op. 04296,30 N.Y.S.3d 873 (Mem) |
| Parties | The PEOPLE of the State of New York Respondent, v. Daniel POWELL, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Ryan P. Mansell of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered April 30, 2014, as amended June 10, 2014, convicting defendant, upon his plea of guilty, of attempted promotion of prison contraband in the first degree, and sentencing him, as a second felony offender, to a term of 1 ½ to 3 years, unanimously affirmed.
The written waiver of appeal signed by defendant, insofar as it expressly “waives any and all rights to appeal including the right to file a notice of appeal” (emphasis added) is unenforceable (see People v. Santiago, 119 A.D.3d 484, 990 N.Y.S.2d 494 [1st Dept.2014]
, lv. denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ). Even though the waiver permits the filing of a notice of appeal for constitutional speedy trial claims or challenges to the legality of the sentence, it still “discourages defendants from filing notices of appeal even when they have claims that cannot be waived, such as one concerning the lawfulness of the waiver or the plea agreement itself” (id. at 485–486, 990 N.Y.S.2d 494 ).
We find that the court properly denied, without a hearing, defendant's motion to suppress contraband found in his waistband while he was a Rikers Island inmate awaiting trial. Given the limited privacy rights of inmates, including pretrial detainees (see Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. ––––, 132 S.Ct. 1510, 182 L.Ed.2d 566 [2012]
; Bell v. Wolfish, 441 U.S. 520, 557, 99 S.Ct. 1861, 60 L.Ed.2d 447 [1979] ), defendant did not set forth any basis for suppression (see People v. Mendoza, 50 A.D.3d 478, 855 N.Y.S.2d 529 [1st Dept.2008]
, lv. denied 11 N.Y.3d 739, 864 N.Y.S.2d 397, 894 N.E.2d 661 [2008] ). This was the fair import of the court's decision (see
People v. Nicholson, 26 N.Y.3d 813, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ), and we reject defendant's arguments concerning the scope of our review.
, J.P., MOSKOWITZ, MANZANET–DANIELS, GESMER, JJ., concur.
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...Moreover, the waiver contains language that has been found by this Court to render a waiver unenforceable (see People v. Powell, 140 A.D.3d 401, 30 N.Y.S.3d 873 [1st Dept.2016], lv. denied 28 N.Y.3d 1074, 47 N.Y.S.3d 233, 69 N.E.3d 1029 [2016] ). Nevertheless, defendant's challenge to the s......
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People v. Thomas, 5607
...2014], lv denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ). On the contrary, unlike the form used in People v. Powell, 140 A.D.3d 401, 30 N.Y.S.3d 873 [1st Dept. 2016], lv denied 28 N.Y.3d 1074, 47 N.Y.S.3d 233, 69 N.E.3d 1029 [2016] ), the form did not limit the unwaived iss......
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