| People v Boyd |
| 2022 NY Slip Op 04048 [206 AD3d 1350] |
| June 23, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mujahid Boyd, Appellant. |
Tina Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Ceresia, J. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered September 13, 2018, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a weapon in the second degree.
On September 30, 2017, defendant was the subject of a traffic stop in the City of Albanyafter a state trooper confirmed by radar that defendant was driving 91 miles per hour in a55-mile-per-hour zone on Interstate Route 787. During the traffic stop, the trooper determinedthat defendant's vehicle registration had lapsed and been suspended. According to the trooper, hesmelled a strong odor of burnt marihuana coming from the vehicle, and defendant admitted tohaving smoked marihuana an hour earlier. A second trooper administered field sobriety testswhile the first trooper searched the vehicle and found marihuana on the floor, as well as adefaced and loaded semiautomatic handgun under the center section of the rear seat. Defendantwas arrested and brought to the State Police barracks for questioning. He was arraigned oncharges related to this incident the following morning and thereafter released.
On October 6, 2017, defendant was stopped by members of the Albany Police Departmentfor excessively tinted windows. Two detectives approached defendant's vehicle on either side,but he drove away, ran a red light and struck a pedestrian. The police were able to apprehenddefendant a short distance away. He was arrested, brought to the Albany police station andquestioned. Using information provided by defendant, the police obtained and executed a searchwarrant at an apartment, where an additional firearm was seized.
Defendant was indicted on charges of criminal possession of a weapon in the second andthird degrees for the September 30, 2017 incident, and criminal possession of a weapon in thesecond degree and reckless endangerment in the first degree in connection with the events ofOctober 6, 2017. Following a suppression hearing, County Court denied in its entiretydefendant's motion to suppress statements and physical evidence. Thereafter, in full satisfactionof the indictment, defendant pleaded guilty to one count of criminal possession of a weapon inthe second degree in connection with the September 30, 2017 incident and agreed to waive hisright to appeal in exchange for a promised determinate sentence of between 9 and 11 years inprison followed by 2
As a preliminary matter, the People concede, and we agree, that defendant's appeal waiver isinvalid. County Court did not advise defendant that his right to appeal was separate and distinctfrom other rights forfeited by his plea, nor did the court ensure that defendant understood "thenature and ramifications of the waiver of the right to [*2]appeal"(People v Brewster, 194 AD3d1266, 1267 [2021], lv denied 37 NY3d 970 [2021]). Additionally, the written waiversigned by defendant was overbroad, as it indicated that defendant was relinquishing any right toappeal so long as he was sentenced in accordance with his plea bargain (see People v Griffen, 200 AD3d1195, 1195 [2021], lv denied 37 NY3d 1161 [2022]). Notwithstanding the invalidappeal waiver, we affirm the judgment of conviction.
The indictment was not jurisdictionally defective. Defendant challenges both counts ofcriminal possession of a weapon in the second degree, contending that they improperly failed toallege that the possession occurred outside of his home or place of business. However, given thatdefendant had a previous criminal conviction, the home or business exception to criminalpossession of a weapon in the second degree did not apply and the People were not required toallege that the possession occurred outside of defendant's home or business (see PenalLaw §§ 265.02 [1]; 265.03 [3]; People v Jones, 22 NY3d 53, 59-60 [2013]; People v McCoy, 169 AD3d 1260,1262 n 1 [2019], lv denied 33 NY3d 1033 [2019]). To the extent that defendant alsoclaims that the People's failure to file a special information charging the prior criminal convictionconstitutes a jurisdictional defect, "an indictment is not rendered jurisdictionally defective. . . when the prosecution has failed to file a required special information and such adefect is deemed waived by defendant's knowing and voluntary guilty plea" (People v Smith, 77 AD3d 990,990-991 [2010] [internal quotation marks and citation omitted], lv denied 16 NY3d 746[2011]; see People v Sanchez, 55AD3d 460, 460 [2008], lv denied 11 NY3d 930 [2009]; People v Downs, 26 AD3d 525,526 [2006], lv denied 6 NY3d 847 [2006]; People v Williamson, 301 AD2d 860,862 [2003], lv denied 100 NY2d 567 [2003]).[FN*]
County Court properly determined that defendant lacked standing to challenge the seizure ofthe firearm from the apartment. "A defendant seeking suppression of evidence has the initialburden of showing sufficient grounds for the motion based on sworn allegations of fact and suchgrounds necessarily include a showing of standing—that is, a legitimate expectation ofprivacy in the searched premises" (People v Jones, 155 AD3d 1103, 1105 [2017] [internal quotationmarks, brackets and citations omitted], lv denied 30 NY3d 1106 [2018]). Where a motionto suppress tangible evidence is not supported by allegations demonstrating a legitimateexpectation of privacy in the place searched, the motion may be summarily denied (see People v Ruffin, 191 AD3d1174, 1178-1179 [2021], lv denied 37 NY3d 960 [2021]).
In support of defendant's motion for suppression, defendant's attorney stated, "[u]poninformation and belief," that defendant's statements to the police "were the basis of a searchwarrant for his home, wherein it is alleged a weapon was found." The People, in their opposition[*3]to the motion, argued that defendant failed to provide swornallegations of fact supporting standing. Defendant thereafter filed a supplemental affidavitcontaining factual allegations relating to his expectation of privacy in the vehicle, but he did notaddress the apartment. Although County Court, on these written submissions alone, could havedetermined that defendant failed to demonstrate that he had a legitimate expectation of privacy inthe apartment (see People vIbarguen, 37 NY3d 1107, 1108 [2021], cert denied 596 US —, — SCt — [2022]), the court instead reserved decision until the time of the suppression hearingand ultimately ruled that defendant lacked standing. In reaching this conclusion, the court hadbefore it defendant's grand jury testimony, wherein defendant was asked where he lived on thedate that the apartment was searched and gave two different addresses, neither of which was theaddress of the subject apartment. Notably, defendant was given multiple opportunities whentestifying to clarify whether he lived at the subject apartment, but he did not do so. Also beforethe court was a sworn affidavit from defendant wherein he claimed that he did live at the subjectapartment. The court credited defendant's grand jury testimony and rejected the affidavit. In sodoing, the court appeared to take note of the self-serving nature of the affidavit, as well as thefact that it was not submitted until months after defendant had filed his suppression motion and aweek after the hearing had begun. Under these circumstances, we discern no error in the court'sruling (see People v Ruth, 260 AD2d 296, 296 [1999], lv denied 93 NY2d 929[1999]).
The record also establishes that the police questioning of defendant on October 6, 2017 didnot violate his right to counsel, notwithstanding the fact that defendant was represented bycounsel at that time in connection with the September 30, 2017 incident. "Generally, a defendantwho is represented by counsel may be questioned about a different, unrepresented crime.However, there are two categories of cases in which police questioning on an unrepresentedcrime may violate a defendant's right to counsel: (1) where the two matters are so closely relatedtransactionally, or in space or time, that questioning on the unrepresented matter would all butinevitably elicit incriminating responses regarding the matter in which there had been an entry ofcounsel; and (2) where, although the matters are less intimately connected . . . thepolice are aware that the defendant was actually represented by an attorney in one of the matters,and the interrogation actually entails an infringement of the suspect's State constitutional right tocounsel by impermissible questioning on the represented crime" (People v Henry, 31 NY3d 364,368 [2018] [internal quotation marks, footnote, brackets and citations omitted]). Neitherexception applies here.
First, the two matters were not closely related transactionally or [*4]in space or time. Rather, these were two separate incidentsoccurring approximately a week apart, in different locations, and arising out of unrelated trafficstops (see People v Cunningham,194 AD3d 954, 955 [2021], lv denied 37 NY3d 991 [2021]). Second, although thepolice became aware while questioning defendant on the second matter that he was representedon the first matter, there was no questioning about the first matter that was either "purposelyexploitive [or] designed to add pressure on defendant to confess to the [second,] unrepresentedcrime" (People v Walker, 285 AD2d 660, 663 [2001] [internal quotation marks andcitations omitted], lv denied 97 NY2d 659 [2001], cert denied 535 US 1064[2002]; see People v Cohen, 90 NY2d 632, 642 [1997]; People v Grant, 260AD2d 860, 861 [1999], lv denied 93 NY2d 1019 [1999]). The mere fact that the policetold defendant that he might potentially help himself in the represented matter if he cooperated inthe unrepresented matter did not constitute an infringement on his right to counsel.
We are unpersuaded by defendant's contention that Penal Law § 222.05 shouldbe applied retroactively to negate County Court's finding that there was probable cause for thesearch of his vehicle on September 30, 2017. This statute, which became effective after thecourt's suppression ruling, provides, among other things, that the odor of burnt marihuana aloneshall no longer provide reasonable cause to believe that a crime has been committed (seePenal Law § 222.05 [3] [b]; People v Sanchez, 196 AD3d 1010, 1012 n 2 [2021], lvdenied 37 NY3d 1029 [2021]). It was enacted as part of the Marihuana Regulation andTaxation Act, which added article 222 to the Penal Law and legalized the possession of cannabisunder certain circumstances (see L 2021, ch 92). "It is well settled that statutes dealingwith matters other than procedure are not intended to be applied retroactively absent a plainlymanifested legislative intent to that effect" (People v Vaughn, 203 AD3d 1729, 1730 [2022] [internal quotationmarks, brackets and citations omitted], lv denied 38 NY3d 1036 [2022]). We note that while the legislature chose to make other aspects of theMarihuana Regulation and Taxation Act retroactive, it "did not include any provision forretroactive application of Penal Law § 222.05 (3) so as to invalidate searches thenlawful, which may have resulted in violent felony convictions that are not marihuana-related, aswas the case here" (People vBabadzhanov, 204 AD3d 685, 687 [2022]; see also People v Vaughn, 203 AD3dat 1730).
Defendant's challenge to the severity of his sentence is unavailing. In light of defendant'sextensive criminal history, together with the fact that the sentence fell within the agreed-uponrange and the statutory parameters, we discern no basis upon which to disturb the sentenceimposed (see CPL 470.15 [6] [b]; People v Barzee, 190 AD3d 1016, 1021 [2021], lv denied36 NY3d 1094 [2021]).
Aarons, J.P., [*5]Pritzker, Reynolds Fitzgerald and Fisher,JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant makes no argumentthat his plea was other than knowing and voluntary.