| People v Cooper |
| 2011 NY Slip Op 04886 [85 AD3d 1594] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin O.Cooper, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered July 8,2009. The judgment convicted defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalpossession of a controlled substance in the third degree (Penal Law § 220.16 [1]),defendant contends that his waiver of the right to appeal was not valid because the record doesnot establish that he understood that right and waived it voluntarily, knowingly, and intelligently.We agree. Although "there is no requirement that [County C]ourt engage in any particular litanyin order to satisfy itself that [those] standards have been met, a knowing and voluntary waivercannot be inferred from a silent record" (People v Callahan, 80 NY2d 273, 283 [1992]).The record establishes that the court instructed defendant to execute a written waiver of the rightto appeal and that defendant did as instructed, but there was no colloquy between the court anddefendant regarding the waiver (see id.; cf. People v Ramos, 7 NY3d 737, 738 [2006]). Thus, defendant'sfurther contention that the court erred in refusing to suppress the cocaine found on his person andhis statements to the police because he was arrested and searched without probable cause is notencompassed by his invalid waiver of the right to appeal.
We conclude, however, that defendant forfeited any right to challenge the court's suppressionruling. Pursuant to CPL 710.70 (2), an "order finally denying a motion to suppress evidence maybe reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the factthat such judgment is entered upon a plea of guilty." Here, the court issued a bench decision withrespect to those parts of defendant's omnibus motion seeking to suppress the cocaine and hisstatements, but defendant pleaded guilty before the court issued an order, and thus CPL 710.70(2) is not applicable (see People vEllis, 73 AD3d 1433 [2010], lv denied 15 NY3d 851 [2010]; People v Releford, 73 AD3d 1437,1438 [2010], lv denied 15 NY3d 808 [2010]).[*2]
In any event, we conclude that defendant's contention thathe was arrested and searched without probable cause is without merit. The evidence at thesuppression hearing established that the stop of defendant's vehicle was lawful inasmuch as thepolice officers observed defendant violating two provisions of the Vehicle and Traffic Law(see People v Mundo, 99 NY2d 55, 58 [2002]). During that stop, an officer observed inplain view a "dime baggie" with "white residue." The officer testified at the suppression hearingthat, based on his experience, he recognized the baggie as a type commonly used to packagedrugs for sale and the residue as crack cocaine residue. That evidence, together with the officers'additional plain view observation that defendant had a grocery bag "stuffed with money," gavethe officers probable cause to arrest defendant (see People v Schell, 261 AD2d 422[1999], lv denied 94 NY2d 829 [1999]; People v Lumpkins, 157 AD2d 804[1990], lv denied 75 NY2d 967 [1990]). Because defendant was lawfully arrested basedon probable cause, the subsequent search of his person was permissible as a search incident toarrest (see generally People v Ralston, 303 AD2d 1014 [2003], lv denied 100NY2d 565 [2003]; People v Taylor, 294 AD2d 825, 826 [2002]). Present—Centra,J.P., Fahey, Carni, Sconiers and Green, JJ.