| People v Madden |
| 2017 NY Slip Op 02205 [148 AD3d 1576] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Moses Madden, III, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Gail A. Donofrio, J.),rendered January 23, 2013. The judgment convicted defendant, upon his plea of guilty, ofreckless endangerment in the first degree and aggravated criminal contempt.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of reckless endangerment in the first degree (Penal Law § 120.25) and aggravatedcriminal contempt (§ 215.52 [1]). As the People correctly concede, defendant'swritten waiver of the right to appeal is invalid because the record establishes that Supreme Courtdid not explain the written waiver to defendant or ascertain that he understood its contents(see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Callahan,80 NY2d 273, 283 [1992]; People v Terry, 138 AD3d 1484, 1484 [2016], lv denied 27 NY3d 1156[2016]). Indeed, a "written waiver does not, standing alone, provide sufficient assurance that thedefendant is knowingly, intelligently and voluntarily giving up his or her right to appeal"(People v Banks, 125 AD3d 1276, 1277 [2015],lv denied 25 NY3d 1159 [2015] [internal quotation marks omitted]). Moreover, therecord does not support the People's contention that defendant pleaded guilty before the courtruled on his suppression motion and thus forfeited his challenge to the court's suppressiondetermination (see generally People v Fernandez, 67 NY2d 686, 688 [1986];People v Scaccia, 6 AD3d 1105, 1105 [2004], lv denied 3 NY3d 681[2004]). Although the court noted during the plea colloquy that it had not yet issued a writtenorder denying defendant's motion, the court did issue an oral suppression ruling, and a writtenorder is not required in seeking to review an adverse suppression ruling pursuant to CPL 710.70(2) (see People v Elmer, 19 NY3d 501, 505 [2012]). Contrary to the People'scontention, the court's comments that it intended to issue a written order did not constitute aretraction of its oral order.
On the merits, however, we conclude that the court properly refused to suppress defendant'sstatements to the police on the ground that his indelible right to counsel was allegedly violated.Defendant failed to meet his burden of establishing that his indelible right to counsel hadattached before he made his statements to the police (see People v Castor, 128 AD3d1357, 1358 [2015], lv denied 26 NY3d 927 [2015]; People v Brown, 46 AD3d 1128, 1129 [2007]; see generally People vCohen, 90 NY2d 632, 638-639 [1997]).
Finally, we reject defendant's challenge to the factual sufficiency of his plea allocution. It iswell established that a defendant who pleads guilty need not "acknowledge[ ] committing everyelement of the pleaded-to offense . . . or provide[ ] a factual exposition for eachelement of the pleaded-to offense" (People v Seeber, 4 NY3d 780, 781 [2005]). Aplea will not be vacated where, as here, the defendant does not negate an element of thepleaded-to offense during the colloquy or otherwise cast doubt on his or her guilt or thevoluntariness of the plea (see Seeber, 4 NY3d at 781-782;People v Jeanty, 41 AD3d 1223, 1223 [2007], lv denied 9 NY3d 923[2007]). Thus, we conclude that, "even if 'defendant's allocution did not establish the essentialelements of the crime to which he pleaded guilty, it would not require vacatur of his plea sincethere is no suggestion in the record that the plea was improvident or baseless' "(People v O'Keefe, 170 AD2d 1020, 1020 [1991], lv denied 77 NY2d 965 [1991]; see People v Pratcher, 50 AD3d 1063,1064 [2008], lv denied 11 NY3d 793 [2008]). Present—Whalen, P.J., Centra, DeJoseph,NeMoyer and Troutman, JJ.