| People v Johnson |
| 2016 NY Slip Op 00517 [135 AD3d 960] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Johnson, Appellant. |
Mark Diamond, New York, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and PamelaKelly-Pincus of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Carter, J.), rendered November 20, 2013, convicting him of attempted robbery in thesecond degree, upon his plea of guilty, and imposing sentence. The appeal brings up forreview the denial, after a hearing pursuant to a stipulation in lieu of motions, of thesuppression of physical evidence and the defendant's statements to law enforcementofficials.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the Supreme Court did not tell the defendant thathe ordinarily would retain his right to appeal after a guilty plea. Instead, the court told thedefendant that he was required to waive his right to appeal. Inasmuch as the record doesnot establish that the defendant voluntarily waived his right to appeal, the waiver is notenforceable (see People vPelaez, 100 AD3d 803, 803 [2012]).
The hearing court correctly declined to suppress physical evidence and thedefendant's statements to law enforcement officials. The credible evidence at thesuppression hearing established that the police had probable cause to arrest the defendant(see People v Williams, 127AD3d 1114, 1115-1116 [2015]).
The defendant's contention regarding the sufficiency of the factual allocution at theplea proceeding is unpreserved for appellate review (see CPL 470.05 [2]; People v Sanchez, 122 AD3d646, 646 [2014]) and, in any event, without merit (see People v Sanchez,122 AD3d at 647; People vBallard, 112 AD3d 731, 732 [2013]).
The defendant's challenge to the procedure used to sentence him as a second felonyoffender also is unpreserved for appellate review and, in any event, without merit (see People v Evans, 121 AD3d1012, 1012-1013 [2014]). Rivera, J.P., Balkin, Roman and Sgroi, JJ., concur.