| People v Diaz |
| 2017 NY Slip Op 00183 [146 AD3d 803] |
| January 11, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Angel Diaz, Appellant. |
Lynn W.L. Fahey, New York, NY (David P. Greenberg of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, William H. Branigan, and Ayelet Sela of counsel; J. RaymondMechmann III on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hollie, J.), rendered October 15, 2014, convicting him of criminal possession of aweapon in the second degree and criminal possession of a weapon in the third degree,upon his plea of guilty, and sentencing him to a determinate term of imprisonment of 10years on the conviction of criminal possession of a weapon in the second degree, to runconcurrently with an indeterminate term of imprisonment of 3
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed on the conviction of criminal possession of aweapon in the second degree from a determinate term of imprisonment of 10 years to adeterminate term of imprisonment of nine years; as so modified, the judgment isaffirmed.
When the Supreme Court explained the defendant's waiver of his right to appeal tohim, it improperly conflated the right to appeal with the rights automatically forfeited bya plea of guilty. Accordingly, the waiver of the right to appeal was invalid (see People v Lopez, 6 NY3d248, 256-257 [2006]; People v Wells, 135 AD3d 976 [2016]; People v Bond, 109 AD3d481 [2013]).
The Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress the gun recovered from his person during a traffic stop. On amotion to suppress physical evidence, the People bear the burden of going forward toestablish the legality of police conduct in the first instance (see People vWhitehurst, 25 NY2d 389, 391 [1969]; People v Blinker, 80 AD3d 619, 620 [2011]; People v James, 72 AD3d844, 844 [2010]; People vHernandez, 40 AD3d 777, 778 [2007]). Once the People have met their initialburden, the defendant bears the ultimate burden of proving the illegality of the searchand seizure (see People vGrant, 83 AD3d 862, 863 [2011]; People v Clough, 70 AD3d 474 [2010]). The credibilitydeterminations of a hearing court, which saw and heard the witnesses at the suppressionhearing, are entitled to deference on appeal and should not be disturbed unless [*2]clearly unsupported by the record (see People v Wallace, 128AD3d 866, 866 [2015]; People v Davis, 103 AD3d 810, 811 [2013]).
"[A]s a general matter, the decision to stop an automobile is reasonable where thepolice have probable cause to believe that a traffic violation has occurred, even if theunderlying reason for the stop was to investigate another matter unrelated to the trafficviolation" (People v Davis, 103 AD3d at 811 [internal quotation marks andcitations omitted]; see People vSluszka, 15 AD3d 421, 423 [2005]). Here, the hearing court properly creditedthe police officer's testimony that he observed a vehicle in which the defendant was apassenger make a left turn without signaling, which justified the stop of the vehicle for atraffic infraction (see Vehicle and Traffic Law § 1163; People vDavis, 103 AD3d at 811; People v Glover, 84 AD3d 977, 978 [2011]; People vGrant, 83 AD3d at 863). At the suppression hearing, the driver of the vehicleadmitted that he committed the subject traffic infraction, even though his account of theinteraction between the officers and the occupants of the vehicle otherwise differed fromthe police officer's account. Nothing in the record supports the defendant's contentionthat the police officer patently tailored his testimony to nullify constitutional objections,or that his testimony was otherwise unworthy of belief (see People v Cooks, 57 AD3d796, 797 [2008]; People vRivera, 27 AD3d 489, 490 [2006]; People v Curry, 213 AD2d 664[1995]).
Upon making a valid traffic stop, the police had discretion to order the occupants toexit the vehicle (see People vPatron, 141 AD3d 545 [2016]; People v Davis, 103 AD3d at 811;People v Grant, 83 AD3d at 864; see also People v Robinson, 74 NY2d773, 774 [1989]). Further, given the police officer's observations of the defendant'sfurtive behavior while still seated in the vehicle, which included bending down andmaking movements toward the ground near his feet, as well as the police officer'sobservation of a large bulge in the defendant's right leg pant, the police officer had asufficient and reasonable basis to conduct a pat down search of the defendant and toremove the gun found on him (see People v Patron, 141 AD3d at 545-546;People v Davis, 103 AD3d at 811; People v Grant, 83 AD3d at 863).
The plea agreement, to the extent that it was set forth in the record, provided, interalia, that an indeterminate term of imprisonment of 2 to 4 years would be imposed on thecount of criminal possession of a weapon in the third degree, but if the defendant did notcomply with the terms of the plea agreement, a determinate term of nine yearsimprisonment would be imposed on the count of criminal possession of a weapon in thesecond degree. The Supreme Court warned the defendant that it would impose the"maximum" if he did not return to court for sentencing. It is undisputed that thedefendant failed to comply with the plea agreement, and failed to appear on thescheduled sentencing date.
Since the defendant failed to comply with the conditions of the plea agreement andfailed to appear on the scheduled sentencing date, "the court was no longer bound by theoriginal plea agreement, and had the right to impose a greater sentence" (People v Grant, 122 AD3d767, 767 [2014]; see People v Figgins, 87 NY2d 840, 841 [1995]; People v Hubbard, 105 AD3d760 [2013]; People vMarte, 85 AD3d 945, 946 [2011]). Even though the court had a right to enhancethe sentence, we have broad, plenary power to modify an enhanced sentence that is harshor excessive under the circumstances (see CPL 470.15 [6] [b]; People vDelgado, 80 NY2d 780 [1992]; People v Thompson, 60 NY2d 513, 519[1983]). "Our sentencing review power 'may be exercised, if the interest of justicewarrants, without deference to the sentencing court' " (People v Kordish, 140 AD3d981, 982 [2016] [emphasis omitted], quoting People v Delgado, 80 NY2d at783). "In considering whether a sentence is unduly harsh or severe under thecircumstances, we exercise our discretion giving consideration to, 'among other things,the crime charged, the particular circumstances of the individual before the court andpurpose of a penal sanction, i.e., societal protection, rehabilitation, anddeterrence' " (People v Kordish, 140 AD3d at 982-983, quotingPeople v Farrar, 52 NY2d 302, 305 [1981]). Considering the crime charged, theparticular circumstances of the defendant, and the purpose of a penal sanction in thiscase, we find that the Supreme Court's imposition of an additional year on top of theenhanced sentence of a determinate term of nine years imprisonment rendered thesentence imposed harsh and excessive. Accordingly, we modify the sentence to theextent indicated herein. Eng, P.J., Balkin, Sgroi and Barros, JJ., concur.