| People v McCree |
| 2014 NY Slip Op 00464 [113 AD3d 557] |
| January 28, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Claude McCree, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), renderedJuly 26, 2011, convicting defendant, upon his plea of guilty, of criminal possession ofstolen property in the fourth degree, and sentencing him, as a second felony offender, toa term of 1½ to 3 years, unanimously reversed, on the law, the motion to suppressphysical evidence and defendant's statement granted, and the indictment dismissed.
Defendant's waiver of his right to appeal was not knowingly, intelligently, andvoluntarily made, as neither the court nor defense counsel made clear on the record thatdefendant understood that the right to appeal is separate and distinct from the numerousother trial rights automatically forfeited upon pleading guilty (see People v Braithwaite, 73AD3d 656, 657 [1st Dept 2010], lv denied 15 NY3d 849 [2010]; see also People v Lopez, 6NY3d 248, 256 [2006]). Nor did the written waiver cure any ambiguity in theon-the-record discussion, as it did not ensure that defendant understood this concept (compare People v Carvajal, 68AD3d 443 [1st Dept 2009], lv denied 14 NY3d 799 [2010]).
The court should have granted defendant's suppression motion. As the Peopleconcede, under the facts presented the handcuffing of defendant elevated his seizure toan arrest requiring probable cause, and probable cause was absent at the time of thehandcuffing. On appeal, the People rely entirely on a claim that the incriminatingstatement and physical evidence were attenuated from the illegality.
Although the unlawful seizure did not yield any incriminating evidence, the evidenceobtained moments later was not sufficiently attenuated (see generally Brown vIllinois, 422 US 590, 603-605 [1975]; Wong Sun v United States, 371 US471, 486 [1963]). Immediately after defendant and his companion were frisked, whilestill handcuffed, they asked why they had been stopped, and the officer said, "[Y]ou havea stolen card," to which defendant replied, "I found it." After defendant's statement, theofficer searched him and found a stolen credit card. These events were a direct result ofand came seconds after the unlawful arrest and frisk, without any intervening events.Therefore, the card and defendant's statement should have been suppressed [*2]as fruit of the initial illegality, notwithstanding that thestatement was not the product of any interrogation or coercion (see People v Packer, 49 AD3d184 [1st Dept 2008], affd 10 NY3d 915 [2008]). Concur—Acosta,J.P., Saxe, Moskowitz and Feinman, JJ.