| People v Daniels |
| 2009 NY Slip Op 09798 [68 AD3d 1711] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mark Daniels,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered October11, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in thethird 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 ofattempted robbery in the third degree (Penal Law §§ 110.00, 160.05). As the Peoplecorrectly concede, the waiver by defendant of the right to appeal was invalid because CountyCourt erroneously informed him that, by pleading guilty, he was forfeiting the right to seekappellate review with respect to the propriety of the court's denial of his suppression motion(cf. People v Kemp, 94 NY2d 831, 833 [1999]). The right to challenge a suppressionruling on appeal is not among the rights automatically forfeited upon a plea of guilty (seeCPL 710.70 [2]; People vWilliams, 59 AD3d 339, 341 [2009], lv denied 12 NY3d 861 [2009]). Inasmuchas the court improperly conflated the rights automatically forfeited by operation of law as theconsequence of a guilty plea with those rights voluntarily relinquished as the consequence of awaiver of the right to appeal, defendant's waiver of the right to appeal also is invalid (see People v Lopez, 6 NY3d 248,256-257 [2006]; People v Moorer,63 AD3d 1590 [2009]; People vCain, 29 AD3d 1157 [2006]).
Nevertheless, we conclude that the court properly denied defendant's motion to suppress thephysical evidence seized by the police from defendant's vehicle. The record of the suppressionhearing establishes that the police were authorized to search defendant's vehicle incident todefendant's lawful arrest because it was "reasonable to believe that evidence of the offense ofarrest might be found in the vehicle" (Arizona v Gant, 556 US —, —, 129 SCt 1710, 1714 [2009]). Defendant was arrested shortly after the robbery was reported, followinga police chase. It was thus reasonable for the police to believe that evidence of the robbery mightbe found in defendant's vehicle. There is no merit to the further contention of defendant that hereceived ineffective assistance of counsel based on defense counsel's failure to object to theadmission of the evidence at the suppression hearing. Defense counsel made a pretrial motion tosuppress the evidence obtained from the search of defendant's vehicle and extensivelycross-examined the People's witnesses at the suppression hearing. Thus the record, viewed as awhole, reflects that defense counsel provided meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, [*2]147 [1981]).
We further reject the contention of defendant that he should have received the minimumindeterminate sentence of 1½ to 3 years allegedly promised by the prosecutor as part of theplea agreement. There is no evidence in the record of any such sentencing promise and, indeed,the record reflects that the court advised defendant prior to the plea colloquy that it would notpromise to impose the minimum sentence. Finally, the sentence is not unduly harsh or severe.Present—Hurlbutt, J.P., Peradotto, Carni, Pine and Gorski, JJ.