| People v Littleton |
| 2009 NY Slip Op 03581 [62 AD3d 1267] |
| May 1, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesLittleton, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedJanuary 2, 2008. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). We agreewith defendant that his waiver of the right to appeal was invalid. County Court's brief referenceto the waiver of the right to appeal during the plea colloquy was insufficient to establish that thewaiver was a knowing and voluntary choice (see People v Thousand, 41 AD3d 1272 [2007], lv denied 9NY3d 927 [2007]; People v VanEvery, 1 AD3d 977, 978 [2003], lv denied 1 NY3d 602 [2004]). Although thefurther contention of defendant that the court erred in refusing to suppress the handgun seizedfrom his truck and the cocaine seized from his house is therefore properly before us (cf.People v Kemp, 94 NY2d 831, 833 [1999]), we nevertheless reject that contention.
With respect to the handgun, the evidence at the suppression hearing established that, whileon routine patrol in the area of defendant's house, the police observed defendant remove thehandgun from his waistband and place it in his truck. We conclude that the police thus had, at aminimum, reasonable suspicion to believe that defendant unlawfully possessed a weapon andthat their "investigative detention [of defendant was not] unreasonable" (People v Hicks,68 NY2d 234, 241 [1986]; see generally People v Allen, 73 NY2d 378, 379-380 [1989]).They also were justified in looking through the window of the truck (see People v Tillery, 60 AD3d1203 [2009]; People v Speicher, 244 AD2d 833, 834 [1997]) and, upon observingthe top of a handgun in the door pocket, they properly seized the handgun as contraband or theinstrumentality of a crime (see People v Belton, 55 NY2d 49, 54-55 [1982], reargdenied 56 NY2d 646 [1982]; People v Delarosa, 28 AD3d 1186 [2006], lv denied 7NY3d 811 [2006]).
With respect to the cocaine, we reject the contention of defendant that the consent to searchhis house obtained from a witness was invalid. The People met their burden of establishing thatthe police reasonably believed that the witness had the requisite authority to [*2]consent to the search of defendant's house (see People vGonzalez, 88 NY2d 289, 295 [1996]; People v Adams, 53 NY2d 1, 9-10 [1981],rearg denied 54 NY2d 832 [1981], cert denied 454 US 854 [1981]). Theevidence at the suppression hearing established that the witness exited defendant's house whenshe observed the police outside and that her children were inside the house. In addition, she toldthe police that she and the children lived with defendant in the house and that she and defendantshared the bedroom in which the cocaine was found. Present—Scudder, P.J., Martoche,Fahey, Peradotto and Green, JJ.