| People v Henry |
| 2015 NY Slip Op 08659 [133 AD3d 1085] |
| November 25, 2015 |
| Appellate Division, Third Department |
[*1](November 25, 2015)
| The People of the State of New York, Respondent, v Armando Henry, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Devine, J. Appeals from two judgments of the County Court of Schenectady County(Giardino, J.), rendered April 19, 2013, convicting defendant upon his pleas of guilty ofthe crimes of attempted assault in the first degree and assault in the second degree.
Defendant was charged in an indictment with offenses related to a shooting in theCity of Schenectady, Schenectady County, and a second indictment was handed upcharging him with offenses related to a subsequent assault in the Schenectady CountyCorrectional Facility. After defendant's motion to suppress certain statements he madewith regard to the shooting was denied, he pleaded guilty simultaneously to attemptedassault in the first degree in satisfaction of the first indictment and assault in the seconddegree in satisfaction of the second indictment. Defendant purportedly waived his rightto appeal from the conviction and sentence in both judgments as part of the agreement,which further contemplated that he would be sentenced to an aggregate prison term of 10years, to be followed by postrelease supervision of five years. County Court imposed thatsentence. Defendant appeals from both judgments, and this Court directed that hisappeals be heard together (2014 NY Slip Op 81409[U]).
Defendant first contends that his waiver of the right to appeal was invalid, and weagree. County Court failed to advise defendant during the plea colloquy "that the right toappeal was separate and distinct from the other rights that he was forfeiting by pleadingguilty," nor did the court confirm that defendant "understood the rights he was waiving"(People v Whitted, 117 [*2]AD3d 1179, 1180[2014], lv denied 23 NY3d 1026 [2014]; see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d248, 256 [2006]). County Court further failed to explain the purpose of a writtenappeal waiver that purportedly encompassed both indictments and, in fact,misrepresented that purpose by telling defendant during the colloquy that the writtenwaiver got "rid of any hearings you could [have] had on the next case and you will neverknow what a jury would have done." Given the "ambiguous and confusing" statementsmade by County Court and the lack of confirmation that defendant understood thewritten waiver, the record does not support a finding that the waiver was knowingly,intelligently and voluntarily made (People v Ritter, 124 AD3d 1133, 1134 [2015]; see People v Burgette, 118AD3d 1034, 1035 [2014], lv denied 24 NY3d 1118 [2015]).
In the absence of a valid appeal waiver, defendant's challenge to the denial of hissuppression motion survives his guilty plea to a count in the first indictment and isproperly before us (see CPL 710.70 [2]; People v Perez, 47 AD3d 1071, 1072 [2008]). Defendantasserts that he unequivocally invoked his right to counsel and his right to remain silentearly in his interview, "mixed question[s] of law and fact that must be determined withreference to the circumstances surrounding the request including the defendant'sdemeanor, manner of expression and the particular words found to have been used by thedefendant" (People v Glover, 87 NY2d 838, 839 [1995]; see People v Johnson, 106AD3d 1272, 1275 [2013], lv denied 21 NY3d 1043 [2013]).
Defendant was in custody at the time of the interrogation, and a video of thatinterrogation reveals that he was kept waiting, then forced to acknowledge hisunderstanding of his Miranda rights before being granted permission to use thebathroom. After he returned from the bathroom, defendant learned that police wanted toask him about the shooting, prompting him to say, "I have a lawyer." A request forcounsel must be unequivocal for the indelible right to counsel to attach, and "anotification that counsel exists" is not such a request (People v Mitchell, 2 NY3d 272, 276 [2004]; see People v Higgins, 124AD3d 929, 931 [2015]; People v Henry, 111 AD3d 1321, 1321 [2013], lvdenied 23 NY3d 1021 [2014]).
The detective admitted at the suppression hearing that he "[b]asically ignored"defendant's remark about having a lawyer and, instead of asking defendant if he wantedto talk to his lawyer, followed up by asking if he "want[ed] to talk to [the detective]"about the shooting incident.[FN*] Defendant's response—"Idon't"—left nothing to the imagination. Whatever doubt could have remained inthe wake of that statement was removed when defendant added, "I understand my rightsand . . . I don't, ah, incriminate myself over an assumption or anything likethat. I can't do that for myself." Inasmuch as "a defendant's invocation of the right toremain silent must be scrupulously honored once the right is asserted in an unequivocaland unqualified fashion," and defendant made what can only be viewed as such anassertion, the interrogation should have stopped at that point (People v Johnson,106 AD3d at 1275 [internal quotation marks, brackets and citations omitted]; seePeople v Ferro, 63 NY2d 316, 322 [1984], cert denied 472 US 1007 [1985]).Thus, County Court abused its discretion in denying defendant's motion to suppress (see People v Graham, 48 AD3d265, 266 [2008], lv denied 10 NY3d 959 [2008]; People v Brown,266 AD2d 838, 838 [1999], lv denied 94 NY2d 860 [1999]).
[*3] Contrary to the contention of the People, the erroneousdenial of the suppression motion does not constitute harmless error. It is unusual for aconviction rendered after a guilty plea to be amenable to harmless error analysis for thesimple reason that "an appellate court is rarely in a position to determine whether denialof a suppression motion played any part in a defendant's decision to plead" (People vLloyd, 66 NY2d 964, 965 [1985]; see People v Wells, 21 NY3d 716, 718-719 [2013];People v Grant, 45 NY2d 366, 377-379 [1978]). Defendant pleaded guiltyapproximately a month after his suppression motion had been denied and, absent proofthat he would have done so even if his motion had been granted, harmless error analysisis inapplicable (compare People v Lloyd, 66 NY2d at 965). As a result, theattempted assault in the first degree conviction cannot stand.
Inasmuch as the integrated plea agreement here was entered into upon theunderstanding that defendant would receive a set aggregate sentence as a result of hisguilty pleas, both judgments must be reversed (see People v Ortega, 53 AD3d 696, 697 [2008];compare People v Hemphill, 229 AD2d 324, 324 [1996], lv denied 88NY2d 1021 [1996]). Defendant's remaining arguments are therefore renderedacademic.
Lahtinen, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the judgments arereversed, on the law, grant that part of defendant's motion to suppress all statementsmade after he invoked his right to counsel and matters remitted to the County Court ofSchenectady County for further proceedings not inconsistent with this Court'sdecision.
Footnote *:In light of the referenceby defendant to the fact that he had an attorney, it is troubling that the detective made noeffort to ensure that defendant was knowingly electing to proceed without an attorneypresent (compare People v Cotton, 277 AD2d 461, 462 [2000], lv denied96 NY2d 757 [2001]).