| People v Woods |
| 2014 NY Slip Op 02092 [115 AD3d 997] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Allen Woods, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz of counsel;Matthew C. Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (St.George, J.), rendered May 21, 2010, convicting him of criminal possession of a weaponin the second degree, upon his plea of guilty, and imposing sentence. The appeal bringsup for review the denial, after a hearing pursuant to a stipulation in lieu of motion, of thesuppression of physical evidence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of the right to appeal is invalid because there is noindication in the record that the defendant understood the distinction between the right toappeal and the other trial rights which are forfeited incident to a plea of guilty (see People v Moyett, 7 NY3d892, 892-893 [2006]; People v Lopez, 6 NY3d 248, 256 [2006]). Therefore, inthe absence of a knowing, voluntary, and intelligent waiver of the right to appeal, thedefendant retained his right to challenge the denial, after a hearing pursuant to astipulation in lieu of motion, of the suppression physical evidence (see CPL710.20 [2]; People vBarrett, 105 AD3d 862, 862-863 [2013]; People v Jacob, 94 AD3d 1142, 1144 [2012]).
Nevertheless, the hearing court properly denied the suppression of physical evidence.The hearing court properly determined that the police officer's testimony at the hearingestablished that he had a founded suspicion that the defendant was engaged in criminalactivity, triggering the common-law right of inquiry, which, by virtue of the defendant'sflight, ripened into reasonable suspicion to pursue him (see People v Sierra, 83NY2d 928 [1994]; People vBarrow, 103 AD3d 745 [2013]; People v Soscia, 96 AD3d 1081 [2012]). Moreover,although, upon the exercise of our factual review power, this Court may make its ownfindings of fact if it determines that the hearing court incorrectly assessed the evidence(see People v Lewis, 107AD3d 826, 827 [2013]; People v Anderson, 91 AD3d 789 [2012]; Matter of Robert D., 69 AD3d714, 716-717 [2010]), we cannot say that the hearing court was incorrect in creditingthe police officer's testimony (see People v Lewis, 107 AD3d at 827).
By pleading guilty, the defendant forfeited his contention regarding the denial of hisapplication to dismiss the count of the indictment that charged him with criminalpossession of a [*2]weapon in the second degree, basedupon the sufficiency of the evidence before the grand jury (see e.g. People vHansen, 95 NY2d 227, 233 [2000]; People v Devodier, 102 AD3d 884, 885 [2013]; People v Wager, 34 AD3d505, 506 [2006]). Skelos, J.P., Dickerson, Leventhal and Hall, JJ., concur.