| People v Loper |
| 2014 NY Slip Op 01771 [115 AD3d 875] |
| March 19, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tamar Loper, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andJennifer Hagan of counsel; Jonathan K. Yi on the brief), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Queens County(Griffin, J.), both rendered June 1, 2012, convicting him of criminal possession of aweapon in the second degree under indictment No. 2426/11, and criminal possession of acontrolled substance in the third degree under indictment No. 10248/11, upon his pleasof guilty, and imposing sentences. The appeal from the judgment rendered underindictment No. 10248/11 brings up for review the denial, after a hearing, of that branchof the defendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgments are reversed, on the law, that branch of the defendant'somnibus motion which was to suppress physical evidence under indictment No.10248/11 is granted, indictment No. 10248/11 is dismissed, and the matter is remitted tothe Supreme Court, Queens County, for further proceedings consistent with CPL 160.50and to afford the defendant an opportunity to withdraw his plea of guilty underindictment No. 2426/11.
On January 22, 2011, in a Queens County neighborhood in which numerousnarcotics sales had taken place, a detective assigned to a narcotics unit was driving anunmarked police van when he saw a car containing two men pull over to the curb. Thedetective saw a third man approach the passenger side of the car, lean in, and apparentlyexchange something with the defendant, who was in the driver's seat. The detective didnot see what was being exchanged and did not see any money passed between the men.Moreover, there is no evidence that the men were acting in a manner that could bedescribed as furtive. Nonetheless, based on his training and his knowledge of how drugdeliveries were made in the neighborhood, the detective suspected that he was witnessinga drug transaction. After positioning the van to block the defendant's car fromproceeding, the detective and his partner got out of the van and approached thedefendant's car. The third man, who was still standing by the side of the car, looked at thedetective, appeared startled, and dropped something through the open passenger-sidewindow. The detective ordered the three men not to move and, from outside the car, sawa "twist" of what he believed from his training and experience to be crack cocaine on thepassenger seat of the car. The detective and his partner arrested the men and recoveredthe crack cocaine they had seen, as well as additional crack cocaine they found in the[*2]car. The defendant was charged, under indictmentNo. 10248/11 (hereinafter the drug indictment) with numerous drug felonies. A fewmonths later, the defendant was arrested and charged under indictment No. 2426/11(hereinafter the weapon possession indictment) with numerous unrelated weaponpossession felonies.
In January 2012, the Supreme Court conducted a suppression hearing in connectionwith the drug indictment. At the conclusion of the hearing, the court denied that branchof the defendant's omnibus motion which was to suppress the crack cocaine found in thedefendant's car.
Several months later, the Supreme Court told the defendant that, in exchange for a"top-count" plea of guilty on each indictment, it would sentence him to the minimumterm on each indictment and would order that the sentences be served concurrently. Thedefendant insisted that he wanted to retain the right to appeal the court's suppressionruling. The court responded that it, and the People, wanted the case to be over, and thatthe defendant could go to trial if he wished. Then, the court told the defendant thatcertain "technicalities" survived appeal waivers, and the defendant immediately told thecourt that, in reliance on the court's statement about the survival of some "technicalities,"he would accept the court's offer. The defendant then pleaded guilty on both indictmentsand purported to waive his right to appeal. He was never directly told that his appealwaiver would bar appellate review of his suppression claim.
On the appeal under indictment No. 10248/11, the defendant challenges the appealwaiver and the denial of that branch of his omnibus motion which was to suppress thecrack cocaine found in his car.
To be enforceable, an appeal waiver must be voluntary, knowing, and intelligent(see People v Callahan, 80 NY2d 273, 280 [1992]; People v Seaberg, 74NY2d 1, 11 [1989]). "An appellate waiver meets this standard when a defendant has 'afull appreciation of the consequences' of such waiver" (People v Bradshaw, 18 NY3d257, 264 [2011], quoting People v Seaberg, 74 NY2d at 11). The plea courtmust determine, in the first instance, whether an appeal waiver is voluntary, knowing,and intelligent "by considering all the relevant facts and circumstances surrounding thewaiver, including the nature and terms of the agreement and the age, experience andbackground of the accused" (People v Seaberg, 74 NY2d at 11; see People vBradshaw, 18 NY3d at 264-265). Additionally, " 'though a . . . courtneed not engage in any particular litany' or catechism in satisfying itself that a defendanthas entered a knowing, intelligent and voluntary appeal waiver, a . . . court'must make certain that a defendant's understanding' of the waiver . . . isevident on the face of the record" (People v Bradshaw, 18 NY3d at 265, quotingPeople v Lopez, 6 NY3d248, 256 [2006]). A written waiver may cure an ambiguity in an oral colloquy (see People v Ramos, 7 NY3d737, 738 [2006]), but only if the oral colloquy on the record reflects the defendant'sunderstanding of its contents (see People v Bradshaw, 18 NY3d at 265, 267; People v Nugent, 109 AD3d625, 625 [2013]; People vParris, 106 AD3d 555, 556 [2013]; cf. People v Simmons, 113 AD3d 420 [2014]; People v Morey, 110 AD3d1378 [2013]).
Here, the Supreme Court discussed the appeal waiver extensively, but never madeclear that it would bar appellate review of the defendant's suppression claim. Under thecircumstances of this case, the waiver is not enforceable. The defendant was adamantthat he wanted to retain his right to appeal the suppression ruling, and he was willing, atleast at first, to forego the plea agreement to ensure that he could raise that issue onappeal. Thus, for the appeal waiver to foreclose appellate review of the defendant'ssuppression claim, it was necessary that the record reflect the defendant's awareness thathis appeal waiver would foreclose appellate review of the claim. Nothing on the recordreflects that awareness. Moreover, inasmuch as there was no on-the-record reference tothe written appeal waiver, that waiver cannot cure the deficiency in the oral colloquy(see People v Bradshaw, 18 NY3d at 265, 267; see also People vDeSimone, 80 NY2d 273, 283 [1992]). Accordingly, the defendant's otherwise validwaiver of his right to appeal does not foreclose appellate review of his suppression claim.
The People nonetheless contend that the defendant failed to preserve for appellatereview his claim that the police officers lacked reasonable suspicion to stop him whenthey blocked his car. This contention is without merit. In response to the defendant'scontention that the police [*3]officers lacked probablecause to stop him, the hearing court expressly decided the issue of reasonable suspicion.Therefore, the defendant's claim is preserved for appellate review as a question of law(see CPL 470.05 [2]; People v Edwards, 95 NY2d 486, 491 n 2 [2000];People v Palmer, 84 AD3d1414, 1414 [2011]; Peoplev Fermin, 36 AD3d 934, 935 [2007]; People v Madison, 22 AD3d 684, 686 [2005]; People vParson, 282 AD2d 477, 478 [2001]; cf. People v Bonilla, 81 AD3d 555, 556 [2011]).
A forcible stop and detention is permissible "[w]here a police officer entertains areasonable suspicion that a particular person has committed, is committing or is about tocommit a felony or misdemeanor" (People v De Bour, 40 NY2d 210, 223 [1976];see People v Benjamin, 51 NY2d 267, 270 [1980]; People v Davenport, 92 AD3d689, 690 [2012]; People vMorales, 58 AD3d 873, 874 [2009]). Reasonable suspicion has been defined as"that quantum of knowledge sufficient to induce an ordinarily prudent and cautiousperson under the circumstances to believe criminal activity is at hand" (People vMartinez, 80 NY2d 444, 448 [1992] [internal quotation marks, brackets and citationomitted]). Whether a police intrusion has amounted to a forcible stop and detention turnson whether there has been "a significant interruption with an individual's liberty ofmovement" (People v De Bour, 40 NY2d at 216; see People v Bora, 83NY2d 531, 534 [1994]).
Here, by blocking the defendant's car to prevent it from moving, the police officers"stopped" it (People v Jennings, 45 NY2d 998, 999 [1978]; see People v Hurdle, 106AD3d 1100, 1104 [2013];People v Lopez, 75 AD3d 610, 612 [2010]). Accordingly, reasonable suspicionwas required (see People v Hurdle, 106 AD3d at 1104; People v Lopez,75 AD3d at 612; People vCreary, 61 AD3d 887, 889 [2009]). Resolution of the issue of whether thepolice officers possessed reasonable suspicion requires evaluation of the totality of thecircumstances (see People vWilliams, 69 AD3d 663, 664 [2010]; People v Hoover, 236 AD2d 626,628 [1997]; People v Graham, 211 AD2d 55, 58-59 [1995]). Upon ourevaluation of the totality of the circumstances in this case, we conclude that, at the timethe police officers blocked the defendant's car, they lacked reasonable suspicion tobelieve that the defendant had committed, was committing, or was about to commit acrime. Although the detective who stopped the defendant's car was trained in identifyingnarcotics transactions and was aware of numerous drug transactions in the neighborhood,including some involving car deliveries of drugs, he did not see what the defendant andthe pedestrian exchanged, could not see if one of the men gave the other something inreturn for something else, and did not see money pass between the two men (cf. People v Wynn, 25 AD3d576, 577 [2006]; People v Oeller, 191 AD2d 355 [1993], affd 82NY2d 774 [1993]). Moreover, the detective saw only one exchange (cf. People vColeman, 183 AD2d 840, 840-841 [1992]), did not describe any furtive conduct onthe part of the two men (cf.People v Garcia, 96 AD3d 481, 482 [2012]; People v Bonilla, 81 AD3d 555, 556 [2011]), or, indeed,any other conduct that would give rise to a reasonable suspicion that he was observing adrug transaction (cf. People vSmalls, 111 AD3d 582 [2013]; People v DiMatteo, 62 AD3d 418 [2009]). The detective'sobservations supported only a "founded suspicion that criminal activity [was] afoot"(People v De Bour, 40 NY2d at 223; see People v Soscia, 96 AD3d 1081, 1081 [2012]; People v Martin, 88 AD3d473, 474 [2011], affd 19 NY3d 914 [2012]; People v Chin, 25 AD3d461, 462 [2006]), which is insufficient to justify the stop of the defendant's car(see People v Jennings, 45 NY2d at 999; People v Hurdle, 106 AD3d at1104). Consequently, that branch of the defendant's omnibus motion which was tosuppress the crack cocaine must be granted. Without that evidence, there could not besufficient evidence to prove his guilt, and the drug indictment must therefore bedismissed.
The defendant raises no independent claim on the appeals with respect to hisconviction relating to the weapon possession indictment, but the judgment on thatindictment must be reversed inasmuch as his plea of guilty in that case was premised onthe promise of a sentence that would run concurrently with the sentence imposed on thedrug indictment (see People v Williams, 17 NY3d 834, 836 [2011]; People vFuggazzatto, 62 NY2d 862, 863 [1984]). The defendant is entitled to an opportunityto withdraw his plea of guilty in that case, and we remit the matter to the Supreme Court,Queens County, for that purpose. Rivera, J.P., Balkin, Hinds-Radix and Maltese, JJ.,concur.