| People v Jacob |
| 2012 NY Slip Op 03218 [94 AD3d 1142] |
| April 24, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anderson Jacob, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel; SheilaBallato on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.),rendered July 14, 2010, convicting him of burglary in the first degree (three counts), robbery inthe first degree, assault in the second degree (three counts), attempted assault in the seconddegree, and endangering the welfare of a child, upon his plea of guilty, and imposing sentence.The appeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant was charged with, among other things, burglarizing two houses and assaultingtheir occupants. The defendant moved, inter alia, to suppress identification testimony on theground that a showup identification procedure was unduly suggestive. After a hearing, thatbranch of the defendant's omnibus motion was denied.
The defendant subsequently pleaded guilty to the nine counts charged in the grand juryindictment in exchange for a promise that he would not receive a sentence longer than 22 years'imprisonment. At the plea allocution, the defendant waived his right to appeal. Prior tosentencing, the defendant moved to withdraw his plea of guilty. The Supreme Court denied hismotion to withdraw his plea without conducting a hearing, and sentenced the defendant inaccordance with the plea agreement.
The decision as to whether to permit a defendant to withdraw a previously entered plea ofguilty rests within the sound discretion of the court and generally will not be disturbed absent animprovident exercise of discretion (see CPL 220.60 [3]; People v Seeber, 4 NY3d 780[2005]; People v Duncan, 78 AD3d1193, 1193 [2010]; People vHaffiz, 77 AD3d 767, 768 [2010]; People v Villalobos, 71 AD3d 924 [2010]). "Generally, a plea ofguilty may not be withdrawn absent some evidence of innocence, fraud, or mistake in itsinducement" (People v Smith, 54AD3d 879, 880 [2008]; see People v Haffiz, 77 AD3d at 768).[*2]
Here, the record demonstrates that the defendant'sacceptance of the plea offer was an informed choice, freely made among valid alternatives, andthat he entered his plea of guilty knowingly, voluntarily, and intelligently (see People vHale, 93 NY2d 454, 463 [1999]; People v Alonzo, 90 AD3d 1065 [2011]; People v Duncan,78 AD3d at 1194; People v Haffiz, 77 AD3d at 768). The defendant's assertion that hisattorney coerced him into pleading guilty is belied by the record (see People v Duncan, 78 AD3d1193 [2010]; People v Haffiz, 77 AD3d at 768; People v Turner, 23 AD3d 503, 503-504 [2005]). Furthermore, thedefendant was afforded an adequate opportunity to present his contentions (see People vFrederick, 45 NY2d 520, 525-526 [1978]; People v Tinsley, 35 NY2d 926, 927[1974]), and since there was no legitimate question as to the voluntariness of his plea, theSupreme Court providently denied the defendant's motion without conducting an evidentiaryhearing (see People v Brown, 14NY3d 113, 116 [2010]; People v Duncan, 78 AD3d at 1194).
However, the defendant is correct that his waiver of the right to appeal is unenforceable. "[A]waiver of the right to appeal will not be enforced unless it was knowingly, intelligently andvoluntarily made" (People v Callahan, 80 NY2d 273, 280 [1992]). "This determinationmust be made in the first instance by the trial court, which is in the best position to assess all ofthe relevant factors, including the reasonableness of the bargain, and the age and experience ofthe accused" (People v Bradshaw,76 AD3d 566, 568 [2010], affd 18 NY3d 257 [2011]; see People v Callahan,80 NY2d at 280; People v Seaberg, 74 NY2d 1, 11 [1989]). "While there is norequirement that the trial court engage in any particular litany in order to satisfy itself that thesestandards have been met, a knowing and voluntary waiver cannot be inferred from a silentrecord" (People v Callahan, 80 NY2d at 283).
Here, there is no indication in the record that the defendant understood the distinctionbetween the right to appeal and the other trial rights which are forfeited incident to a plea ofguilty (see People v Moyett, 7NY3d 892, 892-893 [2006]; Peoplev Remington, 90 AD3d 678, 679 [2011]; People v Foster, 87 AD3d 299, 303-304 [2011]; People v Mayo, 77 AD3d 683,683-684 [2010]). Accordingly, in the absence of a knowing, voluntary, and intelligent waiver ofthe right to appeal, the defendant retained his right to challenge the denial of that branch of hisomnibus motion which was to suppress identification testimony (see CPL 710.20 [2];People v Bradshaw, 76 AD3d at 570; People v Malloy, 8 AD3d 679, 680 [2004]).
Contrary to the defendant's contention, the hearing court properly denied that branch of hisomnibus motion which was to suppress the showup identification evidence given by a witness tothe first burglary. The testimony of the officer who conducted the showup identificationdemonstrated, inter alia, that it took place about 30 minutes after the witness reported the firstburglary, approximately one block from the scene of that crime. The People met their initialburden of establishing the reasonableness of the police conduct and the lack of unduesuggestiveness in the showup identification (see People v Gonzalez, 57 AD3d 560, 561 [2008]; People v Berry, 50 AD3d 1047,1048 [2008]). The defendant failed to satisfy his burden of proving that the procedure was undulysuggestive (see People v Ortiz, 90 NY2d 533, 537 [1997]). Accordingly, that branch ofthe defendant's omnibus motion which was to suppress the showup identification was properlydenied. Angiolillo, J.P., Belen, Lott and Miller, JJ., concur.