| People v Melendez |
| 2018 NY Slip Op 06268 [164 AD3d 1473] |
| September 26, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Pedro Melendez, Also Known as Pete,Appellant. |
Paul Skip Laisure, New York, NY (Mark W. Vorkink of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Kayonia L. Whetstone of counsel; Arianna Clark on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (BarryKron, J.), rendered December 21, 2015, convicting him of criminal possession of a controlledsubstance in the third degree, upon his plea of guilty, and imposing sentence. The appeal bringsup for review the denial (Deborah Stevens Modica, J.), after a hearing, of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid because the SupremeCourt failed to sufficiently explain the appellate rights that the defendant was being asked towaive and did not explain that those rights were separate and distinct from the rights forfeitedwith a plea of guilty. The record does not demonstrate that the defendant "grasped the concept ofthe appeal waiver and the nature of the right he was forgoing" (People v Bradshaw, 18 NY3d 257,267 [2011]; see People v Worrell,138 AD3d 1154, 1155 [2016]; People v Sulsona, 134 AD3d 861, 861 [2015]).
We agree with the hearing court's denial of that branch of the defendant's omnibus motionwhich was to suppress physical evidence. The credibility determinations of the Supreme Courtare entitled to great deference on appeal, and will not be disturbed unless clearly unsupported bythe record (see People v Spann, 82AD3d 1013, 1014 [2011]; People vSmith, 77 AD3d 980, 981 [2010]). Here, the record supports the Supreme Court'sdetermination to credit the testimony of a police detective, experienced in policing drug crimes,that he witnessed furtive behavior of the defendant which was followed by the defendant'ssurreptitious exchange of a small white or tan object for currency in an area known for drugcrime, followed by the buyer's fleeing when the police officers introduced themselves. Thiscredible testimony demonstrated that probable cause existed for the defendant's arrest (seePeople v Jones, 90 NY2d 835, 837 [1997]; People v McRay, 51 NY2d 594, 603-604[1980]; People v Williams, 69AD3d 663, 664 [2010]). Thus, we agree with the court's denial of that branch of thedefendant's omnibus motion which was to suppress the physical evidence obtained from thedefendant after his arrest.
The defendant's remaining contention is without merit. Dillon, J.P., Leventhal, Miller andDuffy, JJ., concur.