| People v Crawford |
| 2013 NY Slip Op 02760 [105 AD3d 1056] |
| April 24, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Charles Crawford, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, and Tina Grillo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered October 7, 2010, convicting him of robbery in the first degree,upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Paynter, J.), of that branch of the defendant's omnibus motionwhich was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the record does not demonstrate that thedefendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Bradshaw, 18NY3d 257 [2011]). The defendant's purported waiver of the right to appeal isunenforceable, as the record does not indicate that he had " 'a full appreciation of theconsequences' " of such waiver (id. at 264, quoting People v Seaberg, 74NY2d 1, 11 [1989]). While the defendant signed a written waiver, a written waiver "isnot a complete substitute for an on-the-record explanation of the nature of the right toappeal, and some acknowledgment that the defendant is voluntarily giving up thatright" (People v Bradshaw,76 AD3d 566, 569 [2010], affd 18 NY3d 257 [2011] [emphasis added]; see People v Pelaez, 100 AD3d803, 804 [2012]). Accordingly, in the absence of a knowing, voluntary, andintelligent waiver of the right to appeal, the defendant retained his right to challenge thedenial of that branch of his omnibus motion which was to suppress identificationtestimony (see CPL 710.20 [2]; People v Jacob, 94 AD3d 1142, 1144 [2012]; People vBradshaw, 76 AD3d at 570).
Nevertheless, the hearing court properly denied that branch of the defendant'somnibus motion which was to suppress identification testimony. The record supports thehearing court's determination that, under the circumstances of this case, the police hadreasonable suspicion to stop and detain the defendant (see People v Hicks, 78 AD3d1075, 1075-1076 [2010]; People v Mais, 71 AD3d 1163 [2010]; see also People v Williams, 73AD3d 1097, 1099 [2010]). Contrary to the defendant's contention, the police werejustified in displaying a firearm and using handcuffs to detain him since, as theyapproached him, they reasonably believed that they were faced with a rapidly developingand dangerous situation presenting an imminent threat to their well-being (see Peoplev Allen, 73 NY2d 378, 380 [1989]). Moreover, under the circumstances of this case,the employment of those precautionary [*2]measures didnot transform the detention of the defendant into a full-blown arrest (see People vAllen, 73 NY2d at 380; People v Tiribio, 88 AD3d 534, 535 [2011]; People vWorthy, 308 AD2d 555 [2003]). Accordingly, contrary to the defendant's contention,there was no need for the police to establish probable cause prior to detaining him, andthe alleged lack of probable cause did not taint or render invalid a subsequent showupidentification of the defendant. Dillon, J.P., Angiolillo, Leventhal and Miller, JJ., concur. [Recalled and vacated, see 110 AD3d 916.]