| People v Crawford |
| 2013 NY Slip Op 06705 [110 AD3d 916] |
| October 16, 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.
Motion by the appellant for leave to reargue an appeal from a judgment of theSupreme Court, Queens County (Griffin, J.), rendered October 7, 2010, which wasdetermined by a decision and order of this Court dated April 24, 2013.
Upon the papers filed in support of the motion, and no papers having been filed bythe respondent in opposition or in relation thereto, it is,
Ordered that the motion is granted and, upon reargument, the decision and order ofthis Court dated April 24, 2013 (People v Crawford, 105 AD3d 1056 [2013]) is recalled andvacated, and the following decision and order is substituted therefor:
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).[*2]
Nevertheless, the hearing court properly deniedthat branch of the defendant's omnibus motion which was to suppress identificationtestimony. The record supports the hearing court's determination that, under thecircumstances of this case, the police had reasonable suspicion to stop and detain thedefendant (see People vHicks, 78 AD3d 1075, 1075-1076 [2010]; People v Mais, 71 AD3d 1163 [2010]). The requirement ofreasonable suspicion is satisfied where an officer has "that quantum of knowledgesufficient to induce an ordinarily prudent and cautious [person] under the circumstancesto believe criminal activity is at hand" (People v Woods, 98 NY2d 627, 628[2002] [internal quotation marks omitted]).
Here, the police were justified in displaying a firearm and using handcuffs to detainthe defendant since, as they approached him, they reasonably believed that they werefaced with a rapidly developing and dangerous situation presenting an imminent threat totheir well-being (see People v Allen, 73 NY2d 378, 380 [1989]; People v Tiribio, 88 AD3d534, 535 [2011]; People v Worthy, 308 AD2d 555 [2003]; cf. People vWatkins, 228 AD2d 163 [1996]). Although the testimony adduced at the hearingindicates that the police also searched the defendant for weapons and contraband, underthe circumstances of this case, the employment of those precautionary measures did nottransform the detention of the defendant into a full-blown arrest and, therefore, there wasno need for the police to establish probable cause prior to detaining the defendant(see People v Allen, 73 NY2d at 380). Assuming that the defendant was illegallysearched without probable cause, as he contends, he would be entitled to suppression ofany physical evidence recovered as the fruit of an illegal arrest (see generally People v Julien,100 AD3d 925 [2012]). The police, however, did not recover any physical evidencefrom the allegedly illegal search, and the search did not taint the subsequent showupidentification of the defendant, which was supported by the requisite reasonablesuspicion, and occurred within permissibly close temporal and geographic proximity tothe crime (see People vGilford, 16 NY3d 864, 868 [2011]; People v Duuvon, 77 NY2d 541[1991]). Accordingly, the allegedly illegal search is not a basis for suppression of theidentification testimony. Dillon, J.P., Angiolillo, Leventhal and Miller, JJ., concur.