| People v Johnston |
| 2018 NY Slip Op 00762 [158 AD3d 1206] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v RayseanJohnston, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedDecember 16, 2014. The judgment convicted defendant, upon his plea of guilty, of attemptedcriminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty ofattempted criminal possession of a controlled substance in the third degree (Penal Law§§ 110.00, 220.16 [1]). On March 4, 2014, officers with the Syracuse PoliceDepartment (SPD) executed search warrants for defendant's house and vehicle, and seized 8.7grams of cocaine, 1.2 grams of heroin, and cash secreted in shoeboxes. The warrants were issuedbased on the application of an SPD detective who had participated in an investigation over thepreceding four months through the use of a confidential informant. According to the swornstatements in the detective's warrant application, he and other SPD officers set up six controlledbuys between the informant and defendant at a predetermined location. Surveillance units wereposted at defendant's house and at the location of the buy. Before the informant proceeded to thelocation of the buy, he was checked for drugs and money, and was found to have none. He wasthen given the buy money, and officers observed him as he proceeded to the location of the buy.Other officers then observed a vehicle with a particular license plate number proceed fromdefendant's residence to the location of the buy. Defendant emerged from the vehicle, met withthe informant, and then returned home in the vehicle. During one of those controlled buys, theofficers observed a hand-to-hand transaction. After each controlled buy, the informant met withthe detective without first coming into contact with anyone else. Each time, the informant was inpossession of a tan powder, was checked for money and was found to be in possession of none,and made certain statements to the detective concerning the buy. Each time, the detectiveperformed field tests on the powder and detected the presence of heroin.
We agree with defendant that his waiver of the right to appeal was invalid. County Court didnot engage defendant in an adequate colloquy to ensure that the waiver was knowingly,intelligently, and voluntarily entered (see People v Edwards, 151 AD3d 1962, 1962 [4th Dept 2017],lv denied 29 NY3d 1126 [2017];People v Howington, 144 AD3d 1651, 1652 [4th Dept 2016]). In particular, the courtdid not ensure that defendant "understood that the right to appeal is separate and distinct fromthose rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see Howington,144 AD3d at 1652). We therefore address defendant's substantive contentions on appeal.
Defendant contends that the court erred in refusing to conduct a Darden hearing toconfirm the existence of the confidential informant (see generally People v Darden, 34NY2d 177, 181 [1974], rearg denied 34 NY2d 995 [1974]). We reject that contention.When the People cannot establish the existence of probable cause without information obtainedfrom a [*2]confidential informant, the court must hold aDarden hearing in camera (see People v Edwards, 95 NY2d 486, 489 [2000];People v Phillips, 237 AD2d 971, 971 [4th Dept 1997]). The purpose of such a hearing is"to allay any concern that the informant is 'wholly imaginary' and his statements to the police[are] 'fabricated' " (Edwards, 95 NY2d at 494, quoting People v Serrano,93 NY2d 73, 77 [1999]). Here, however, such a hearing was unnecessary because theindependent observations of the detective and the other police officers involved in theinvestigation established the existence of probable cause to support the search warrant (see People v Crooks, 27 NY3d609, 614 [2016]; see generallyPeople v Myhand, 120 AD3d 970, 973 [4th Dept 2014], lv denied 25 NY3d 952[2015]).
Contrary to defendant's further contention, we lack the authority to amend the certificate ofconviction in order to dispense with the mandatory surcharge (see Penal Law§ 60.35 [1] [a]; People vParkison, 151 AD3d 1647, 1648 [4th Dept 2017], lv denied 29 NY3d 1132[2017]). Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P.,Peradotto, Lindley, Curran and Troutman, JJ.