People v. Weeks

• Decision Date: 02 April 2020
• Docket Number: 2017–12788,Ind.No. 2879/16
• Citation: 122 N.Y.S.3d 347,182 A.D.3d 539
• Parties: The PEOPLE, etc., Respondent, v. Antoine WEEKS, Appellant.
• Court: New York Supreme Court — Appellate Division

182 A.D.3d 539

122 N.Y.S.3d 347

The PEOPLE, etc., Respondent,

v.Antoine WEEKS, Appellant.

2017–12788

Ind.No. 2879/16

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

Submitted-March 24, 2020

April 2, 2020

Paul Skip Laisure, New York, N.Y. (Leila Hull of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Eunice Villantoy of counsel), for respondent.

MARK C. DILLON, J.P., JOSEPH J. MALTESE, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered October 31, 2017, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Barry Schwartz, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is reversed, on the law, the defendant's plea of guilty is vacated, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent with CPL 160.50.

On September 16, 2016, the defendant parked his vehicle in a visitor's parking spot outside the precinct station house for the 113th precinct and entered the station house to recover the belongings of a friend who had previously been arrested. The defendant provided a police officer with identification. The officer then searched the defendant's name in a police database, discovered that the defendant had an outstanding bench warrant, and arrested the defendant. The officer then impounded the defendant's vehicle and, during an inventory search, discovered a handgun, a samurai sword, and a marijuana cigarette. The defendant was charged with criminal possession of a weapon in the second degree, criminal possession of stolen property in the fourth degree, unlawful possession of marihuana, and two violations of the Vehicle and Traffic Law relating to the vehicle's registration and license plates. The defendant moved, inter alia, to suppress the physical evidence on the ground that the impoundment of the vehicle was unlawful. Following a hearing, the Supreme Court denied the defendant's motion. The defendant then pleaded guilty to one count of criminal possession of a weapon in the second degree in full satisfaction of the indictment. The defendant appeals.

Contrary to the People's contention, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545, *7 ; People v. Smalls, 178 A.D.3d 738, 738–739, 111 N.Y.S.3d 210 ). The Supreme Court never elicited an acknowledgment that the defendant was voluntarily waiving his right to appeal, and its colloquy failed to adequately explain the right to appeal or distinguish the defendant's waiver of his right to appeal from other rights automatically forfeited by a plea of guilty (see People v. Birch, 171 A.D.3d 938, 938, 97 N.Y.S.3d 222 ). Although the record includes a written waiver of the right to appeal signed by the defendant, the court "failed to ascertain on the record whether the defendant had read the waiver, discussed it with counsel, or was even aware of its contents" ( id. at 939, 97 N.Y.S.3d 222 ). Since the appeal waiver was invalid, it does not preclude appellate review of the defendant's contention that the court should have granted that branch of his omnibus motion which was to suppress physical evidence.

"When the driver of a vehicle is arrested, the police may impound the car, and conduct an inventory search, where they act pursuant to ‘reasonable police regulations relating to inventory procedures administered in good faith’ " ( People v. Walker, 20 N.Y.3d 122, 125, 957 N.Y.S.2d 272, 980 N.E.2d 937, quoting Colorado v. Bertine, 479 U.S. 367, 374, 107 S.Ct. 738, 93 L.Ed.2d 739 ). The police may also impound a vehicle without a warrant "[i]n the interests of public safety and as part of what the [United States Supreme] Court has called ‘community caretaking functions’ " ( South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000, quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 ).

Here, the Supreme Court...