People v. Roots

• Decision Date: 18 November 2022
• Docket Number: 896,KA 18-00337
• Citation: 210 A.D.3d 1532,178 N.Y.S.3d 671
• Parties: The PEOPLE of the State of New York, Respondent, v. Willie G. ROOTS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 1532

178 N.Y.S.3d 671

The PEOPLE of the State of New York, Respondent,

v.Willie G. ROOTS, Defendant-Appellant.

896

KA 18-00337

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

Entered: November 18, 2022

JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (PAUL SKIP LAISURE OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIE G. ROOTS, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, and the matter is remitted to Monroe County Court for further proceedings on the indictment.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the first degree ( Penal Law § 140.30 [2] ). As defendant contends in his main and pro se supplemental briefs, and as the People correctly concede, he did not validly waive his right to appeal because County Court's oral colloquy and the written waiver of the right to appeal provided defendant with erroneous information about the scope of that waiver and failed to identify that certain rights would survive the waiver (see People v. Thomas , 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. McLaughlin , 193 A.D.3d 1338, 1339, 143 N.Y.S.3d 255 [4th Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 697, 172 N.E.3d 810 [2021] ).

Defendant failed to move to withdraw his plea or to vacate the judgment of conviction, and thus he failed to preserve for our review his further contention in his main and pro se supplemental briefs that his plea was coerced by the court (see People v. Williams , 198 A.D.3d 1308, 1309, 153 N.Y.S.3d 735 [4th Dept. 2021], lv denied 37 N.Y.3d 1149, 159 N.Y.S.3d 325, 180 N.E.3d 489 [2021] ; People v. Pitcher , 126 A.D.3d 1471, 1472, 6 N.Y.S.3d 352 [4th Dept. 2015], lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015] ). We decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).

Defendant further contends in his main and pro se supplemental briefs that he received ineffective assistance of counsel based on multiple alleged shortcomings. Specifically, defendant contends in those briefs that defense counsel was ineffective in failing to challenge certain show-up identification procedures utilized after his arrest and contends in his pro se supplemental brief that defense counsel was ineffective in failing to take certain action related to the grand jury proceedings and in failing to seek severance of certain counts. Those contentions do not survive defendant's guilty plea because he failed to demonstrate that " ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney[’s] allegedly poor performance’ " ( People v. Grandin , 63 A.D.3d 1604, 1604, 880 N.Y.S.2d 826 [4th Dept. 2009], lv denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009] ).

Defendant also contends in his main and pro se supplemental briefs, however, that defense counsel was ineffective by failing to move to suppress evidence against him on the ground that the police unlawfully seized him without reasonable suspicion (see generally People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). We agree.

To prevail on his claim of ineffective assistance of counsel, defendant "must demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure to pursue colorable claims," and "[o]nly in the rare case will it be possible, based on the trial record alone, to deem [defense] counsel ineffective for failure to pursue a suppression motion" ( People v. Carver , 27 N.Y.3d 418, 420, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016] [internal quotation marks omitted]). Initially, we conclude that the record establishes that defense counsel could have presented a colorable argument that defendant's detention was illegal and thus that any evidence obtained as a result thereof should have been suppressed as the fruit of the poisonous tree. One of the officers who initially detained defendant testified at a Huntley/Wade hearing that, prior to defendant's arrest, one of the victims of a home invasion had described the suspects as two black men in their twenties, one of whom was wearing a hoodie "with some kind of emblem on the front." About a half-hour later, the officer heard a broadcast of a tip from an unidentified retired police officer. The tip, as testified to at the hearing, reported "two [black] males [in their twenties] inside [a] corner store that possibly looked suspicious" with one that "might" have had "a handgun on his side" and another that was wearing a "teddy bear type hoodie," which was later described as a hoodie with a teddy bear on the front. Based on that tip, officers responded to the corner store, entered with weapons drawn, and immediately ordered the two men, one of whom was defendant, to raise their hands. The officer testified, however, that the men were not acting suspiciously nor did she observe a weapon when she and her partner entered the store. While handcuffing defendant, the officer for the first time observed a handgun in defendant's waistband, saw blood on defendant's hoodie, and obtained statements from defendant. Defendant was thereafter taken for show-up identifications, during which the victims of the prior home invasion identified him as one of the men involved in that incident.

Given those facts, it cannot be said that a motion seeking suppression on the ground that defendant was unlawfully detained would have had "little or no chance of success" ( People v. Clark , 191 A.D.3d 1471, 1473, 141 N.Y.S.3d 221 [4th Dept. 2021], lv denied 36 N.Y.3d 1118, 146 N.Y.S.3d 213, 169 N.E.3d 571 [2021] ; see generally People v. Carter , 142 A.D.3d 1342, 1343, 38 N.Y.S.3d 855 [4th Dept. 2016] ), and instead those facts demonstrate that defense counsel failed to...