| People v Ties |
| 2015 NY Slip Op 07753 [132 AD3d 558] |
| October 22, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Derrick Ties, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Paul Wiener of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), forrespondent.
Judgment, Supreme Court, New York County (Larry Stephen, J.), rendered July 11,2013, convicting defendant, upon his plea of guilty, of burglary in the third degree, andsentencing him, as a second felony offender, to a term of 2 to 4 years, unanimouslyreversed, on the law, the plea vacated, defendant's suppression motion granted, thecounts of the indictment charging criminal possession of stolen property in the fourth andfifth degrees and possession of burglar's tools dismissed, and the matter remanded forfurther proceedings on the remaining charges.
Defendant did not make a valid and enforceable waiver of his right to appeal (see People v Lopez, 6 NY3d248, 257 [2006]). The court's cursory discussion of the waiver did not establishdefendant's understanding that it encompassed the right to appeal as distinct from thoserights normally waived by pleading guilty (id. at 256). The written waiver clearlystates that defendant is giving up the distinct right to appeal; however, it was executed atsentencing, not at the time of the plea, and does not suffice to show that defendantknowingly and intelligently waived appeal at the time his plea was entered, as part of theplea agreement (see People vFrysinger, 111 AD3d 1397, 1398 [4th Dept 2013]; People v Williams, 102 AD3d1055 [3d Dept 2013], lv denied 22 NY3d 1044 [2013]).
Defendant's suppression motion should have been granted. The police officers' initialapproach and their intrusion upon defendant's freedom by directing that he drop the bagwere unsupported by a founded suspicion that criminality was afoot necessary to theexercise of the common-law right to inquire (see People v Hollman, 79 NY2d181, 191-192 [1992]). The officers approached defendant based solely on theirobservation of him carrying a shopping bag or gift bag that seemed rigid. While oneofficer testified that, based on his experience, he thought it might be a "booster bag" usedfor shoplifting, he essentially described an ordinary shopping bag. Further, it wasconceded that defendant was not free to leave at the time he was ordered to drop the bagand its use as a booster bag became apparent. Defendant's innocuous behavior in walkingin and out of a store with the bag and his ensuing behavior did not justify furtherinterference to obtain explanatory information (see People v De Bour, 40 NY2d210, 223 [1976]).
In view of the foregoing, we find it unnecessary to reach defendant's other argumentsfor vacatur of his plea. Concur—Tom, J.P., Andrias, Moskowitz and Kapnick,JJ.