| People v Weeks |
| 2020 NY Slip Op 02198 [182 AD3d 539] |
| April 2, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Antoine Weeks, Appellant. |
Paul Skip Laisure, New York, NY (Leila Hull of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, and Eunice Villantoy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Barry Kron, J.), rendered October 31, 2017, convicting him of criminal possession of aweapon in the second degree, upon his plea of guilty, and imposing sentence. The appealbrings up for review the denial, after a hearing (Barry Schwartz, J.), of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law, the defendant's plea of guilty isvacated, that branch of the defendant's omnibus motion which was to suppress physicalevidence is granted, the indictment is dismissed, and the matter is remitted to theSupreme Court, Queens County, for further proceedings consistent with CPL160.50.
On September 16, 2016, the defendant parked his vehicle in a visitor's parking spotoutside the precinct station house for the 113th precinct and entered the station house torecover the belongings of a friend who had previously been arrested. The defendantprovided a police officer with identification. The officer then searched the defendant'sname in a police database, discovered that the defendant had an outstanding benchwarrant, and arrested the defendant. The officer then impounded the defendant's vehicleand, during an inventory search, discovered a handgun, a samurai sword, and a marijuanacigarette. The defendant was charged with criminal possession of a weapon in the seconddegree, criminal possession of stolen property in the fourth degree, unlawful possessionof marihuana, and two violations of the Vehicle and Traffic Law relating to the vehicle'sregistration and license plates. The defendant moved, inter alia, to suppress the physicalevidence on the ground that the impoundment of the vehicle was unlawful. Following ahearing, the Supreme Court denied the defendant's motion. The defendant then pleadedguilty to one count of criminal possession of a weapon in the second degree in fullsatisfaction of the indictment. The defendant appeals.
Contrary to the People's contention, the record does not establish that the defendantknowingly, voluntarily, and intelligently waived his right to appeal (see People vThomas, 34 NY3d 545, 565-568 [2019]; People v Smalls, 178 AD3d738, 738-739 [2019]). The Supreme Court never elicited an acknowledgment thatthe defendant was voluntarily waiving his right to appeal, and its colloquy failed toadequately explain the right to appeal or distinguish the defendant's waiver of his right toappeal from other rights automatically forfeited by a plea of guilty (see People v Birch, 171 AD3d938, 938 [2019]). Although the record includes a written waiver of the right toappeal signed by the defendant, the court "failed to ascertain on the record whether thedefendant had read the waiver, discussed it with counsel, or was even aware of itscontents" (id. at 939). Since the appeal waiver was invalid, it does not precludeappellate review of the defendant's contention that the court should have granted thatbranch of his omnibus motion which was to suppress physical evidence.
"When the driver of a vehicle is arrested, the police may impound the car, andconduct an inventory search, where they act pursuant to 'reasonable police regulationsrelating to inventory procedures administered in good faith' " (People v Walker, 20 NY3d122, 125 [2012], quoting Colorado v Bertine, 479 US 367, 374 [1987]). Thepolice may also impound a vehicle without a warrant "[i]n the interests of public safetyand as part of what the [United States Supreme] Court has called 'community caretakingfunctions' " (South Dakota v Opperman, 428 US 364, 368 [1976],quoting Cady v Dombrowski, 413 US 433, 441 [1973]).
Here, the Supreme Court erred in denying that branch of the defendant's omnibusmotion which was to suppress the physical evidence recovered from his vehicle. ThePeople failed to establish the lawfulness of the impoundment of the defendant's car andsubsequent inventory search (see People v Gomez, 13 NY3d 6, 11 [2009]; People v Small, 156 AD3d820, 822 [2017]; People vLeonard, 119 AD3d 1237, 1238 [2014]). The arresting officer testified that thedefendant's vehicle was legally parked in a visitor's parking space, and the officer wasunaware of posted time limits pertaining to the visitor parking spaces. Although theofficer testified that he impounded the defendant's vehicle to safeguard the defendant'sproperty against a potential burglary, the People presented no evidence demonstratingany history of burglary or vandalism in the area where the defendant had parked hisvehicle. Thus, the People failed to establish that the impoundment of the defendant'svehicle was in the interests of public safety or part of the police's community caretakingfunction (see South Dakota v Opperman, 428 US at 368; People v Tardi, 28 NY3d1077, 1078 [2016]). Moreover, the People failed to present any evidence as towhether the New York City Police Department had a policy regarding impoundment ofvehicles, what that policy required, or whether the arresting officer complied with thatpolicy when he impounded the defendant's vehicle (see People v Tardi, 28 NY3dat 1078; People v Leonard, 119 AD3d at 1238; see also People v Bacquie, 154AD3d 648, 649-650 [2017]).
Accordingly, the impoundment of the defendant's vehicle was unlawful and thephysical evidence that was recovered from the vehicle during the inventory searchsubsequent to that impoundment must be suppressed as fruits of the unlawfulimpoundment (see e.g. People vHickey, 172 AD3d 745, 747-748 [2019]). Without the suppressed evidence,there could not be sufficient evidence to prove the defendant's guilt beyond a reasonabledoubt, and the indictment must therefore be dismissed (see id.). Dillon, J.P.,Maltese, Barros and Connolly, JJ., concur.