| People v Booth |
| 2018 NY Slip Op 00944 [158 AD3d 1253] |
| February 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Patrick M.Booth, Appellant. |
Eftihia Bourtis, Rochester, for defendant-appellant.
Patrick M. Booth, defendant-appellant pro se.
Kristyna S. Mills, District Attorney, Watertown (Harmony A. Healy of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedOctober 13, 2015. 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 his plea of guilty ofattempted criminal possession of a controlled substance in the third degree (Penal Law§§ 110.00, 220.16 [1]). We agree with defendant that the waiver of the right toappeal was not valid. County Court did not engage defendant in an adequate colloquy to ensurethat the waiver was knowing and voluntary (see People v Ricks, 145 AD3d 1610, 1610 [4th Dept 2016], lvdenied 29 NY3d 1000 [2017]; People v Brown, 296 AD2d 860, 860 [4th Dept 2002],lv denied 98 NY2d 767 [2002]). While the record contains a written appeal waiver, thewritten waiver, standing alone, offers no assurance that defendant knowingly, voluntarily andintelligently gave up his right to appeal (see People v Welcher, 138 AD3d 1481, 1482 [4th Dept 2016],lv denied 28 NY3d 938 [2016]) inasmuch as the court only asked defendant whether hesigned the waiver, not whether he had read or understood its contents (see People v Peterkin, 153 AD3d1568, 1569 [4th Dept 2017]; Ricks, 145 AD3d at 1610).
We reject defendant's contention in his main and pro se supplemental briefs that the courtimproperly refused to suppress items of tangible evidence obtained from him by police officersfollowing the stop of the vehicle in which he was the back seat passenger. The officers wereauthorized to stop the vehicle based upon their observation of an inoperable brake light, whichwas a violation of Vehicle and Traffic Law § 375 (40) (b) (see People v John, 119 AD3d 709,710 [2d Dept 2014], lv denied 24 NY3d 1003 [2014]; People v Garcia, 30 AD3d 833, 834 [3d Dept 2006]). When one ofthe officers looked into the area of the back seat, he recognized, based upon his training andexperience, items that could be utilized for the production of methamphetamine. The officer hadan objective credible reason at that point to request information from defendant (see People vDe Bour, 40 NY2d 210, 223 [1976]). The officer could have also requested that defendantstep out of the vehicle (see People v Robinson, 74 NY2d 773, 775 [1989], certdenied 493 US 966 [1989]; People v McLaurin, 70 NY2d 779, 781-782 [1987]), butthe court credited the officer's testimony that defendant spontaneously and voluntarily exited thevehicle.
When defendant was out of the vehicle, the officer noticed on defendant's clothing a distinctchemical odor that the officer associated with the production of methamphetamine. Before theofficer spoke to him, defendant made repeated movements toward a large bulge in his frontjacket pocket, despite the officer's repeated request that defendant keep his hands out of hispocket, prompting the officer to become reasonably concerned for his safety (see People v Glover, 87 AD3d1384, 1384-1385 [4th Dept 2011], lv denied 19 NY3d 960 [2012]; People vRobinson, 278 AD2d 808, 809 [4th Dept 2000], lv denied 96 NY2d 787 [2001]).That concern increased when, upon being advised by the officer that he was going to patdefendant down for weapons, defendant became tense and immediately reached for anotherpocket (see People v Wiggins, 126AD3d 1369, 1369-1370 [4th Dept 2015]). The patdown produced a switchblade knife, whichprovided probable cause for defendant's arrest (see Penal Law § 265.01 [1]).As the court concluded, the remaining evidence seized from defendant's person could have beenlawfully obtained pursuant to his lawful arrest (see People v Johnson, 132 AD3d 1295, 1297 [4th Dept 2015],lv denied 27 NY3d 1134 [2016]), but the officer, exhibiting an abundance of caution,obtained a warrant. In sum, therefore, we agree with the suppression court that the police conduct"was justified in its inception and at every subsequent stage of the encounter" (People vNicodemus, 247 AD2d 833, 835 [4th Dept 1998], lv denied 92 NY2d 858 [1998],citing De Bour, 40 NY2d at 215).
Finally, we reject defendant's contention in his main and pro se supplemental briefs that hewas denied effective assistance of counsel. " 'In the context of a guilty plea, a defendanthas been afforded meaningful representation when he or she receives an advantageous plea andnothing in the record casts doubt on the apparent effectiveness of counsel' " (People v Singletary, 51 AD3d1334, 1335 [3d Dept 2008], lv denied 11 NY3d 741 [2008]). Here, defense counselnegotiated a favorable plea, and defendant has not demonstrated "the absence of strategic or otherlegitimate explanations" for counsel's alleged shortcomings in his conduct of the suppressionhearing (People v Rivera, 71 NY2d 705, 709 [1988]). Finally, we reject defendant'scontention that he was denied effective assistance of counsel based upon the appearance ofretained counsel's associate to represent defendant at the plea proceeding.Present—Whalen, P.J., Smith, Carni, Troutman and Winslow, JJ.