| People v Alston |
| 2012 NY Slip Op 08948 [101 AD3d 1672] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Floyd Alston,Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), renderedDecember 9, 2008. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree.
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, ofrobbery in the first degree (Penal Law § 160.15 [4]). We agree with defendant that the recordfails to establish that his waiver of the right to appeal was knowing and voluntary (see generally People v Lopez, 6 NY3d248, 256 [2006]). We conclude that the single reference by Supreme Court to the signed writtenwaiver, i.e., whether defendant understood what he had signed, is not sufficient to establish thatdefendant understood that he was waiving a right that otherwise would have survived the guilty plea(see People v Cooper, 19 NY3d 501, 510 [2012]; People v Norton, 96 AD3d 1651, 1651-1652 [2012], lv denied19 NY3d 999 [2012]). We therefore conclude that defendant's contention that the court erred inrefusing to suppress identification evidence on the ground that the photo array was unduly suggestive isnot encompassed by the waiver (see People vAdger, 83 AD3d 1590, 1591 [2011], lv denied 17 NY3d 857 [2011]). We furtherconclude, however, that defendant's contention is without merit. The court properly determined that thePeople met their initial burden of establishing that the police conduct with respect to the photo arrayprocedure was reasonable and that defendant failed to meet his ultimate burden of proving that thephoto array was unduly suggestive (seePeople v Santiago, 96 AD3d 1495, 1496 [2012]; see generally People v Chipp, 75NY2d 327, 335 [1990], cert denied 498 US 833 [1990]). The subjects depicted in the arraywere sufficiently similar in appearance so that the viewer's eye was not drawn to a particular photo " 'insuch a way as to indicate that the police were urging a particular selection' " (People v Weston, 83 AD3d 1511,1511 [2011], lv denied 17 NY3d 823 [2011]). Present—Scudder, P.J., Fahey, Carni,Lindley and Sconiers, JJ.