| People v Peterkin |
| 2017 NY Slip Op 06736 [153 AD3d 1568] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Travis L.Peterkin, Appellant. |
Charles J. Greenberg, Amherst, for defendant-appellant.
Kristyna S. Mills, District Attorney, Watertown, for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedFebruary 3, 2014. The judgment convicted defendant, upon his plea of guilty, of burglary in thesecond degree, attempted burglary in the second degree and resisting arrest.
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 ofburglary in the second degree (Penal Law § 140.25 [2]), attempted burglary in thesecond degree (§§ 110.00, 140.25 [2]), and resisting arrest(§ 205.30). As the People correctly concede, defendant's written waiver of the rightto appeal is invalid because the record establishes that County Court did not explain the writtenwaiver to defendant or ascertain that he understood its contents (see People v Bradshaw, 18 NY3d257, 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 the defendant is knowingly, intelligently andvoluntarily giving up his [or her] right to appeal" (Terry, 138 AD3d at 1484 [internalquotation marks omitted]).
Contrary to defendant's contention, the court did not err in denying that part of his omnibusmotion seeking to suppress the identification testimony of two witnesses on the ground that thephoto array used in the pretrial identification procedures was unduly suggestive. "Thecomposition and presentation of the photo array were such that there was no reasonablepossibility that the attention of the witness[es] would be drawn to defendant as the suspectchosen by the police" (People vSylvester, 32 AD3d 1226, 1227 [2006], lv denied 7 NY3d 929 [2006]; seegenerally People v Chipp, 75 NY2d 327, 335-336 [1990], cert denied 498 US 833[1990]). We reject defendant's contention that the police should have shown the witnesses aphoto array without defendant's photograph in it, in addition to the photo array that contained hisphotograph.
Defendant contends that the court erred in denying that part of his omnibus motion seeking tosuppress evidence obtained after his arrest because the police officer did not have probable causeto believe that defendant had committed a crime when he approached him. We reject thatcontention. The court properly determined that the actions of the officer were justified at hisinitial encounter with defendant and every subsequent stage thereafter (see generally People v Bradley, 137AD3d 1611, 1611 [2016], lv denied 27 NY3d 1128 [2016]). The officer viewedsurveillance videos of a suspect in a burglary that had occurred the day before, and later that dayhe saw defendant walking along a street, wearing the same clothing and carrying the samebackpack as the man in the videos. The officer therefore had an " 'objective crediblereason' " to approach defendant and ask him his name (People v Garcia, 20 NY3d 317,322 [2012]; see People v Hollman, 79 NY2d 181, 190 [1992]). When defendant gave afalse identification, the officer had a founded suspicion that criminal activity was afoot, thuspermitting him to ask defendant what he had in an orange bag from Kinney Drugs (see Peoplev Battaglia, 86 NY2d 755, 756 [1995]; see generally Hollman, 79 NY2d at 191-192).Defendant showed the officer the contents of the bag, which the officer believed to be an itemstolen in the burglary. Defendant dropped the bag and stuck his hand in his pocket, and refused toremove it when asked to do so by the officer. When the officer tried to remove defendant's handfrom his pocket, defendant struck the officer and then fled. Defendant's actions in striking theofficer gave the officer probable cause to arrest defendant and search him incident to the arrest(see generally People v De Bour, 40 NY2d 210, 223 [1976]). In addition, the itemsrecovered from the discarded backpack and the Kinney Drugs bag were lawfully obtained by thepolice inasmuch as defendant abandoned them (see People v Ramirez-Portoreal, 88NY2d 99, 108 [1996]).
Defendant's contention that he was coerced into pleading guilty is without merit. In hismotion to withdraw the plea, defendant stated that he was under the impression that, if he wasconvicted of the offenses, he was facing a mandatory minimum sentence of 16 years to life. Thepreplea proceedings, however, showed that defendant was advised that he would receive thatminimum sentence only if he was convicted of the offenses and found to be a persistentviolent felony offender. Defendant's remaining challenge to the voluntariness of the plea is notpreserved for our review because it was not raised in his motion to withdraw the guilty plea (see People v Zulian, 68 AD3d1731, 1732 [2009], lv denied 14 NY3d 894 [2010]), and this case does not fallwithin the rare exception to the preservation requirement set forth in People v Lopez (71NY2d 662, 666 [1988]). Finally, the sentence is not unduly harsh or severe.Present—Whalen, P.J., Smith, Centra, Peradotto and Carni, JJ.