| People v Nichols |
| 2021 NY Slip Op 02842 [194 AD3d 1114] |
| May 6, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Martin J. Nichols, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered October 16, 2017, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
Following a traffic stop in Saratoga County on the evening of November 21, 2016, defendantwas charged by indictment with criminal possession of a controlled substance in the third degree(two counts), tampering with physical evidence, obstructing governmental administration in thesecond degree, criminal possession of a weapon in the third degree, aggravated unlicensedoperation of a motor vehicle in the third degree and possession of marihuana. Defendant movedto suppress the evidence recovered during the traffic stop and County Court denied the motionfollowing a hearing. Defendant ultimately pleaded guilty to one count of criminal possession of acontrolled substance in the third degree in satisfaction of the indictment and executed a writtenappeal waiver that "encompasse[d] all issues arising from th[e] criminal proceeding." He wassentenced, as a second felony offender and in accordance with the plea agreement, to a prisonterm of 9
Defendant seeks to vacate his plea on the ground that it was not knowing, intelligent andvoluntary because County Court failed to advise him of all of his Boykin rights. Insofaras defendant did not file a postallocution motion to withdraw the plea despite an opportunity todo so, this issue is unpreserved for review (see People v Miller, 190 AD3d 1029, 1030 [2021]; People v Apelles, 185 AD3d 1298,1299 [2020], lv denied 35 NY3d 1092 [2020]; People v Thompson-Goggins, 182 AD3d 916, 918 [2020]). Thenarrow exception to the preservation rule does not apply since defendant did not make anystatements during the plea colloquy that were "inconsistent with his guilt, negated an essentialelement of the charged crime or otherwise called into question the voluntariness of his plea" (People v Gamble, 190 AD3d 1022,1024 [2021], lv denied 36 NY3d 1097 [2021]; see People v Williams, 27 NY3d 212, 214, 220-222 [2016]).Recognizing that his argument is unpreserved, defendant asks us to take corrective action in theinterest of justice. We decline to do so. Here, County Court advised defendant during the pleaproceeding that, by pleading guilty, he would be giving up his "right to a trial[,] . . .to cross-examine witnesses[, and] . . . to take the stand in [his] own defense."Although the court did not specify that defendant would be giving up his right to a jurytrial or the privilege against self-incrimination (see People v Demkovich, 168 AD3d 1221, 1222 [2019]),[FN*] there is no cause to invalidate theplea under the circumstances presented (see People v Tyrell, 22 NY3d 359, 365 [2013]; People v Edwards, 181 AD3d1054, 1056 [2020], lv denied 35 NY3d 1026 [2020]). When considering "all of therelevant [*2]circumstances surrounding [the] plea" (People v Conceicao, 26 NY3d375, 382 [2015] [internal quotation marks and citations omitted])—includingdefendant's prior criminal history, the active participation by counsel, and the timing of theplea—we are satisfied that it was knowingly, voluntarily and intelligently entered (seePeople v Edwards, 181 AD3d at 1056).
Defendant next contends that County Court erred in denying his suppression motion, a claimthat survives his guilty plea (see Peoplev Herbert, 147 AD3d 1208, 1209 [2017]). Although defendant executed a written appealwaiver—which generally forecloses a challenge to an adverse suppression ruling (see People v Andino, 185 AD3d1218, 1219 [2020], lv denied 35 NY3d 1110 [2020]; People v Dobbs, 157 AD3d 1122,1123 [2018], lv denied 31 NY3d 983 [2018]; People v Stone, 105 AD3d 1094, 1095 [2013])—the Peopleconcede, and we agree, that the appeal waiver was overly broad (see People v Thomas, 34 NY3d545, 556 [2019]; People vGervasio, 190 AD3d 1190, 1191 [2021]). Moreover, County Court's brief and vaguediscussion of defendant's appellate rights during the oral colloquy does not excuse theoverly-broad written waiver in these circumstances (see People v Gervasio, 190 AD3d at1191). Accordingly, defendant's waiver of the right to appeal was invalid and his challenge toCounty Court's suppression ruling is reviewable.
Nevertheless, County Court did not err in declining to suppress the physical evidenceobtained during the traffic stop. During the suppression hearing, State Trooper Kenneth M.Ahigian testified that, at approximately 10:30 p.m. on November 21, 2016, he was drivingnorthbound on I-87 near the Town of Malta, Saratoga County. At that time, he observed a blackSUV commit several traffic violations, including "moving from [the] lane in an unsafe manner,speeding, and not using a directional." State Trooper Michael P. Tromblee—who wassitting in his police vehicle in the U-turn lane—also observed the vehicle, explaining that atelevision appeared to be playing in the front middle console. Tromblee watched as Ahigianfollowed behind the vehicle and activated his emergency lights to initiate a traffic stop. Ahigianthen called for backup on an internal radio and Tromblee followed behind Ahigian to assist.
Before approaching the vehicle, Ahigian ran its license plate number through an onboarddatabase, which revealed that the driver's license for the registered owner was suspended.Ahigian then approached the vehicle, where he encountered defendant sitting in the driver seatand a woman sitting in the front passenger seat. Defendant rolled down his window and producedhis license and registration. Defendant then complied with Ahigian's request to exit the vehicleand followed him to the rear, where Ahigian informed him that he smelled marihuana emanatingfrom the vehicle. In response, defendant informed Ahigian that he had smoked marihuana earlierthat evening and [*3]handed Ahigian marihuana that he had onhis person. Ahigian testified that, at that point, defendant began trying to "reach in his pants" andtug on his waistband. Concerned for his safety, Ahigian placed defendant in handcuffs andconducted a "preliminary" search of defendant's person, which did not yield contraband.
Meanwhile, Tromblee sought pedigree information from the woman in the passenger seat. Inresponse to Tromblee's inquiry about where she and defendant were coming from, the passengerstated that they were on their way back from a Walmart in the Town of Colonie, Albany County.The passenger referred to defendant as "Bam" but did not know his last name, stating that theyhad met online approximately three weeks prior. After speaking with the passenger, Trombleeand Ahigian met near the rear of the vehicle and consulted about the different information theyhad received from the occupants, noting that their stories "had some pretty significant variances."Ahigian told Tromblee that he was going to speak with the female passenger, advising Tromblee"to watch [defendant] closely" because he "was making a lot of movements trying to reach intohis pant[s]." Tromblee began talking to defendant, who stated that he and the passenger werecoming from the City of Troy, Rensselaer County and that they had been in a relationship forapproximately six months. Tromblee testified that, during their encounter, defendant "began to. . . look[ ] over his shoulder, then kept turning back as . . . Ahigianwas searching the vehicle." Tromblee testified that defendant then stated that he was "cold" andwanted to "sit in the vehicle." In response, Tromblee informed defendant that he would besubjected to another search if he wanted to sit in the vehicle because he "didn't want [defendant]leaving any presents." According to Tromblee, defendant stated that "he didn't need to besearched" again because he had already been searched by Ahigian. Tromblee replied that, ifdefendant was unwilling to be searched again, then "he wasn't going to be sitting in a vehicle."Defendant ultimately requested to sit in the vehicle and was escorted to the police car. Trombleethen searched defendant again, testifying that he felt a bulge inside of defendant's pants.Tromblee did not immediately retrieve the bulge, instead continuing with his search. Trombleeexplained that, as he was jostling defendant's waistband, defendant "shifted from his right foot toboth feet to his left foot, kicked his right foot out[,] and a baggy containing a powder came out ofthe right pant leg onto his foot." At that point, defendant appeared to "step his foot down on thebag or kick the bag" and a struggle ensued that ended with the powder—later identified asheroin—spilling on Tromblee's hands and shirt.
Defendant does not challenge the initial stop of his vehicle or the roadside search by Ahigian,which were in all respects lawful given the observation of traffic violations[*4], the odor of marihuana emanating from the vehicle and defendant'sfurtive movements toward his waist band (see Vehicle and Traffic Law§§ 1128, 1163, 1180; People v Blandford, 190 AD3d 1033, 1036 [2021]; People v Rasul, 121 AD3d 1413,1415 [2014]; People v Issac, 107AD3d 1055, 1057 [2013]). Rather, he contends that Tromblee's search of his person wasimpermissible because he was not under arrest at the time and Ahigian had already performed asearch that did not yield any contraband. We are unpersuaded. Defendant consented to the searchby Tromblee under circumstances that were free from "[o]fficial [police] coercion" when heconfirmed that he wanted to sit in the vehicle after being informed that his request to do so wouldonly be entertained upon a second search of his person (People v Gonzalez, 39 NY2d122, 124 [1976]; see People vMiller, 159 AD3d 1053, 1054-1055 [2018]). Finally, defendant's contention thatTromblee "intentionally manipulated [his] clothing to dislodge [the] bulge that was inside of[his] pants leg" is not supported by the testimony.
Garry, P.J., Clark, Aarons and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:We note that County Courtadvised defendant of his right to a jury trial during the arraignment on the indictment and, duringthe plea colloquy, stated that his guilty plea would "incriminate [him]."