| People v Cintron |
| 2015 NY Slip Op 01049 [125 AD3d 1333] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael R. Cintron, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered January 5, 2011. The judgment convicted defendant, upon his plea of guilty, ofattempted criminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of attempted criminal possession of a controlled substance in the third degree(Penal Law §§ 110.00, 220.16 [1]). Initially, we agree with defendantthat his waiver of the right to appeal is invalid because " 'the minimal inquirymade by County Court was insufficient to establish that the court engage[d] thedefendant in an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice' . . . , and because the court 'improperlyconflated the rights automatically forfeited by operation of law as the consequence of aguilty plea with those rights voluntarily relinquished as the consequence of a waiver ofthe right to appeal' " (People v Donaldson, 117 AD3d 1467, 1467 [2014], lvdenied 23 NY3d 1036 [2014]).
We reject defendant's further contention that the court erred in refusing to suppresshis statements and physical evidence because "the two-police-officer approach to the carwas unwarranted." It is well settled that "[t]he approach of occupants of a stopped orparked vehicle to request information is analyzed under the first tier of the DeBour hierarchy . . . and need only be justified by an 'articulable basis,'meaning an 'objective, credible reason not necessarily indicative of criminality' "(People v Grady, 272 AD2d 952, 952 [2000], lv denied 95 NY2d 905[2000], quoting People v Ocasio, 85 NY2d 982, 985 [1995]; see People vStebbins, 278 AD2d 942, 942 [2000], lv denied 96 NY2d 807 [2001]; seegenerally People v De Bour, 40 NY2d 210, 222-223 [1976]).
The record of the suppression hearing establishes that the vehicle was parked whenthe officers approached, and there is no evidence that the driver's ability to move thevehicle was blocked by any patrol vehicles (see Ocasio, 85 NY2d at 984)."Further, in view of the prior drug activity that had occurred in the [parking lot] wherethe vehicle was parked and [the anonymous citizen's tip] of drug activity in that area, theofficers possessed an objective, credible reason to approach the vehicle" and askdefendant for identification (People v Gandy, 85 AD3d 1595, 1596 [2011], lvdenied 17 NY3d 859 [2011]; see People v Ramos, 60 AD3d 1317, 1317 [2009], lvdenied 12 NY3d 928 [2009]). Present—Scudder, P.J., Smith, Centra, Lindleyand Valentino, JJ.