| People v Gresham |
| 2017 NY Slip Op 04498 [151 AD3d 1175] |
| June 8, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jovan T. Gresham, Appellant. |
Edward W. Goehler, Cortland, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered June 4, 2013, convicting defendant upon his plea of guilty of the crimes of assault in thefirst degree and criminal possession of a weapon in the second degree (two counts).
Following a March 2011 incident in which defendant allegedly fired shots outside of arestaurant, police issued an attempt to locate bulletin to all patrol units, with a copy ofdefendant's photograph attached. Defendant was apprehended weeks later and a search of hisperson incident to his arrest revealed a loaded firearm. Defendant was thereafter charged in aneight-count indictment with attempted murder in the second degree, assault in the first degree andcriminal possession of a weapon in the second degree (five counts). The charges of attemptedmurder, assault and two of the five counts for possession of a weapon arose out of a February2010 incident in which defendant allegedly shot another individual in the bathroom of the samerestaurant where he allegedly fired shots in March 2011, while the remaining charges arose out ofthe March 2011 incident and the discovery of a handgun during the search incident to his arrest.Following a combined suppression hearing, County Court denied defendant's motion to suppressthe handgun. Thereafter, in full satisfaction of the indictment, defendant pleaded guilty to assaultin the first degree and two counts of criminal possession of a weapon in the second degree(counts 6 and 7). Defendant was thereafter sentenced, in apparent accordance with the pleaagreement, to an aggregate prison term of eight years, with five years of postrelease supervision.Defendant now appeals.
[*2] Initially, CountyCourt did not err in receiving into evidence at the suppression hearing the attempt to locatebulletin and an attached photograph of defendant. As established at the suppression hearing,although the police did not, pursuant to routine procedure, retain the original bulletin andattached photograph, the photograph in evidence was a printout of the same digital photographthat was printed and attached to the original bulletin. There is no indication that defendantspecifically demanded the original printout of the digital photograph, and defense counselconceded at the suppression hearing that his objections went to weight, rather than admissibility.While defendant asserts on appeal that County Court should have drawn an adverse inferenceagainst the People based on the failure to preserve the original printout, defendant did not requestat the hearing that the court draw such an adverse inference. Moreover, even assuming that thispermissive adverse inference is warranted at a suppression hearing, we discern no error, given theabsence of any prejudice to defendant (see generally People v Durant, 26 NY3d 341, 347-348 [2015]; People v Handy, 20 NY3d 663,667-669 [2013]; People vShcherenkov, 21 AD3d 651, 652 [2005]).
We are also unpersuaded by defendant's contention that County Court should havesuppressed the evidence found on his person because the police lacked probable cause to issuethe attempt to locate bulletin and to thereafter arrest him in reliance on that bulletin. "Under thefellow officer rule, a police officer can make a lawful arrest even without personal knowledgesufficient to establish probable cause, so long as the officer is acting upon the direction of or as aresult of communication with a fellow officer . . . in possession of informationsufficient to constitute probable cause for the arrest" (People v Ketcham, 93 NY2d 416,419-420 [1999] [internal quotation marks and citations omitted]; see People v Dowling, 75 AD3d838, 840 [2010], lv denied 15 NY3d 952 [2010]).
Here, the restaurant owner and her daughter reported to the responding police officer thatthey had refused defendant—whom they knew as "Juice"—entry into the restauranton March 17, 2011. The daughter reported that defendant became angry, shouted profanities,"flashed a gun" and told people to "move out [of] the way" and that, when she returned to therestaurant, she heard shots fired. The responding police officer testified that he thereafter askedhis fellow police officers if they knew of any person with the street name of "Juice" and that hewas later provided with a photograph of defendant. He stated that he compared defendant'sphotograph to surveillance footage from outside the restaurant, which corroborated the daughter'saccount, and concluded that the person depicted was defendant. He also testified that he showeddefendant's photograph to the restaurant owner and her daughter, who each confirmed thatdefendant was the individual they knew as Juice. In view of the foregoing, County Court properlyconcluded that the responding police officer had probable cause to issue the attempt to locatebulletin with defendant's photograph attached, and that the subsequent arrest of defendant byanother officer in reliance upon the bulletin was proper under the fellow officer rule (seePeople v Ketcham, 93 NY2d at 419-420; People v Ramirez-Portoreal, 88 NY2d 99,113-114 [1996]; People v Garcia,131 AD3d 732, 734 [2015], lv denied 27 NY3d 997 [2016]). As the search ofdefendant's person was incident to his lawful arrest, County Court properly denied defendant'smotion to suppress the loaded handgun found in his waistband (see People v Cruz, 131 AD3d 724,725-726 [2015], lv denied 26 NY3d 1087 [2015]; People v Tunstall, 278 AD2d585, 587 [2000], lv denied 96 NY2d 788 [2001]).
Next, defendant argues that his guilty plea was not knowing, voluntary and intelligent.During the plea allocution, defendant admitted the conduct charged in each count, as read byCounty Court, and entered a guilty plea as to each. Contrary to his claims, defendant was notrequired to recite each element of the crimes or provide a further factual recitation, as" 'his affirmative responses to County Court's questions established the elements of thecrime[s] [*3]charged' " (People v Koechel, 132 AD3d1020, 1021 [2015], lv denied 27 NY3d 1070 [2016], quoting People v Campbell, 66 AD3d1059, 1060 [2009]; see People vCharleston, 142 AD3d 1248, 1249 [2016]).
However, as the People concede, defendant made statements at sentencing that cast doubtupon his guilt and the voluntariness of his plea, and County Court failed to satisfy its duty ofengaging in a further inquiry to ensure that defendant's guilty plea was knowing and voluntary."Although there is no mandatory catechism required on sentencing, the [trial] court shouldconduct a hearing when at plea-taking or upon sentencing it appears the defendantmisapprehends the nature of the charges or the consequences of [the] plea" (People vBeasley, 25 NY2d 483, 488 [1969] [emphasis added and citation omitted]; see People v Pastor, 28 NY3d1089, 1090-1091 [2016]; People v Lopez, 71 NY2d 662, 666-667 [1988]). Inaddition, while the issue most often arises during the plea allocution (see People v McNair, 13 NY3d821, 822-823 [2009]; People v Lopez, 71 NY2d at 665; People v Mills, 146 AD3d 1173,1174 [2017]), the Court of Appeals has recognized that a defendant may negate an element of thecrime to which a plea has been entered or make a statement suggestive of an involuntary plea atpostplea proceedings, including sentencing, which may require the trial court to then conduct afurther inquiry or give the defendant an opportunity to withdraw the plea (see People vPastor, 28 NY3d at 1090-1091; People v McKennion, 27 NY2d 671, 672-673 [1970];People v Beasley, 25 NY2d at 488; People v Nixon, 21 NY2d 338, 350-351, 355[1967], cert denied 393 US 1067 [1969]; see also People v Neithardt, 127 AD3d 1502, 1503 [2015]; People v Karolys, 85 AD3d 1213,1213 [2011], lv denied 17 NY3d 818 [2011]; People v Good, 83 AD3d 1124, 1125-1126 [2011], lvdenied 17 NY3d 816 [2011]; Peoplev Wagoner, 30 AD3d 629, 629-630 [2006]).
At sentencing, defendant stated, "I just want to apologize to the [c]ourt for wasting the[c]ourt's time. I never meant to hurt anyone. Wrong place at the wrong time, and I made amistake." It is unclear whether defendant's remarks were in reference to the 2010 incident givingrise to the assault charge or the 2011 shooting incident outside the restaurant. However, whenconfronted by County Court with the fact that he had pleaded guilty to assault in the first degree,which requires intent to cause serious physical injury to another person (see Penal Law§ 120.10 [1]), defendant asserted that it was his deceased friend who "actually didthe shooting" and that he "was at the wrong place at the wrong time." County Court recognizedthat defendant was denying the intentional assault, but it made no further inquiry. County Courtproceeded to sentencing without providing defendant with an opportunity to withdraw his guiltyplea. This was error. Although defendant did not preserve his challenge to the voluntariness ofhis plea by making a motion to withdraw his plea, his statements at sentencing triggered theexception to the preservation requirement (see People v Williams, 27 NY3d 212, 219-220 [2016]; cf.People v Pastor, 28 NY3d at 1090-1091; People v McNair, 13 NY3d 821, 822-823 [2009]; People v Louree, 8 NY3d 541, 545[2007]). Accordingly, defendant's guilty plea must be vacated (see People v Marrero, 130 AD3d1148, 1149 [2015]; People vMorehouse, 109 AD3d 1022, 1022-1023 [2013]). While defendant's remarks did notnecessarily implicate all of the crimes to which he pleaded guilty, because it was an integratedplea agreement with a promised aggregate sentence, the judgment must be reversed in its entirety(see People v Henry, 133 AD3d1085, 1087 [2015]; People vPeterson, 124 AD3d 993, 994 [2015]).
Garry, J.P., Lynch, Rose and Aarons, JJ., concur. Ordered that the judgment is reversed, onthe law, and matter remitted to the County Court of Broome County for further proceedings notinconsistent with this Court's decision.