| People v Powell |
| 2016 NY Slip Op 04296 [140 AD3d 401] |
| June 2, 2016 |
| Appellate Division, First Department |
[*1](June 2, 2016)
| The People of the State of New York,Respondent, v Daniel Powell, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Ryan P. Mansell of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered April 30,2014, as amended June 10, 2014, convicting defendant, upon his plea of guilty, ofattempted promotion of prison contraband in the first degree, and sentencing him, as asecond felony offender, to a term of 1
The written waiver of appeal signed by defendant, insofar as it expressly "waives anyand all rights to appeal including the right to file a notice of appeal" (emphasisadded) is unenforceable (seePeople v Santiago, 119 AD3d 484 [1st Dept 2014], lv denied 24 NY3d964 [2014]). Even though the waiver permits the filing of a notice of appeal forconstitutional speedy trial claims or challenges to the legality of the sentence, it still"discourages defendants from filing notices of appeal even when they have claims thatcannot be waived, such as one concerning the lawfulness of the waiver or the pleaagreement itself" (id. at 485-486).
We find that the court properly denied, without a hearing, defendant's motion tosuppress contraband found in his waistband while he was a Rikers Island inmateawaiting trial. Given the limited privacy rights of inmates, including pretrial detainees(see Florence v Board of Chosen Freeholders of County of Burlington, 566US —, 132 S Ct 1510 [2012]; Bell v Wolfish, 441 US 520, 557[1979]), defendant did not set forth any basis for suppression (see People v Mendoza, 50AD3d 478 [1st Dept 2008], lv denied 11 NY3d 739 [2008]). This was thefair import of the court's decision (see People v Nicholson, 26 NY3d 813 [2016]), and wereject defendant's arguments concerning the scope of our review.Concur—Mazzarelli, J.P., Moskowitz, Manzanet-Daniels and Gesmer, JJ.