| People v Chy |
| 2020 NY Slip Op 03244 [184 AD3d 664] |
| June 10, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rodolfo Chy, Appellant. |
Paul Skip Laisure, New York, NY (Mark W. Vorkink of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill,Nancy Fitzpatrick Talcott, and Antara D. Kanth of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (LeslieLeach, J.), rendered July 22, 2016, convicting him of grand larceny in the fourth degree (twocounts), upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Steven Paynter, J.), of those branches of the defendant's omnibus motionwhich were to suppress physical evidence and statements he made to law enforcementofficials.
Ordered that the judgment is reversed, on the law, the plea is vacated, that branch of thedefendant's omnibus motion which was to suppress physical evidence is granted, and the matteris remitted to the Supreme Court, Queens County, for a new determination on that branch of thedefendant's omnibus motion which was to suppress statements he made to law enforcementofficials.
On October 14, 2015, Police Officer Christopher Musa was given an assignment to respondto 83-27 Britton Avenue in Queens to enforce a vacate order that had been issued by the NewYork City Department of Buildings. Officer Musa responded to that location and, atapproximately 6:00 p.m., observed the defendant climbing out of a basement window. OfficerMusa approached the defendant, who, in response to Officer Musa's inquiry, provided his name.The defendant was carrying a backpack, and Officer Musa observed what appeared to be creditcards or identification cards in an outside mesh pocket. Officer Musa arrested the defendant forcriminal trespass, handcuffed him, and removed the backpack from the defendant. Officer Musathen searched the backpack at the scene of the arrest and recovered, among other items, twocredit cards and a New York State driver license that did not bear the defendant's name, and anew laptop computer. Officer Musa placed the backpack in the trunk of his patrol vehicle, andthe defendant was transported to the precinct, at which time the backpack was vouchered. Thedefendant, after waiving his Miranda rights (see Miranda v Arizona, 384 US 436[1966]), made oral and written statements to the police. The defendant was later charged with,inter alia, two counts of grand larceny in the fourth degree, two counts of criminal possession ofstolen property in the fourth degree, criminal trespass in the second degree, and criminal trespassin the third degree.
Following a suppression hearing, the Supreme Court denied those branches of thedefendant's omnibus motion which were to suppress the physical evidence recovered from thebackpack and his statements to the police. The defendant moved for leave to reargue. In an orderdated June 28, 2016, the court granted leave to reargue and, upon reargument, adhered to itsoriginal determination. The defendant subsequently pleaded guilty to two counts of grand larcenyin the fourth degree in full satisfaction of the indictment, admitted the allegations in the predicatefelony statement, and purportedly waived his right to appeal after he had allocuted to the facts ofthe crime. On appeal, the defendant challenges the validity of his purported appeal waiver andthe court's suppression rulings.
The defendant's purported waiver of his right to appeal was invalid (see People v Thomas, 34 NY3d545, 564-566 [2019]; People vBradshaw, 18 NY3d 257, 264-267 [2011]; People v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez, 6 NY3d 248, 255[2006]; People v Batista, 167 AD3d69, 76 [2018]; People v Brown,122 AD3d 133, 137 [2014]). The Supreme Court's colloquy did not ensure that thedefendant understood the distinction between his waiver of the right to appeal and the other trialrights that are automatically forfeited upon a plea of guilty (see People v Farray, 172 AD3d 1401, 1401 [2019]; People v Ortiz, 167 AD3d 658,658 [2018]; People v Rivas, 166AD3d 1019, 1020 [2018]; People vMedina, 161 AD3d 778, 779 [2018]; People v Diaz, 146 AD3d 803, 804 [2017]). Moreover, althoughthe defendant executed a written waiver of his right to appeal, the written waiver containederroneous statements with regard to the issues encompassed by the waiver of the right to appeal,and the court's oral colloquy was insufficient to cure the misleading written waiver (seePeople v Thomas, 34 NY3d at 564-566; People v Wilkinson, 176 AD3d 879 [2019]). Since the defendant'spurported waiver of the right to appeal was invalid, it does not preclude appellate review of hischallenge to the court's suppression determinations.
Contrary to the Supreme Court's determination, the search of the backpack was not justifiedas a search incident to a lawful arrest. "The protections embodied in article I, § 12of the New York State Constitution serve to shield citizens from warrantless intrusions on theirprivacy interests, including their personal effects" (People v Jimenez, 22 NY3d 717, 719 [2014]; see People vGokey, 60 NY2d 309, 312 [1983]). " 'All warrantless searches presumptively areunreasonable per se,' and, thus, '[w]here a warrant has not been obtained, it is the People whohave the burden of overcoming' this presumption of unreasonableness" (People vJimenez, 22 NY3d at 721, quoting People v Hodge, 44 NY2d 553, 557 [1978]; see People v Houston, 143 AD3d737, 738 [2016]). " '[E]ven a bag within the immediate control or 'grabbable area' ofa suspect at the time of his [or her] arrest may not be subjected to a warrantless search incident tothe arrest, unless the circumstances leading to the arrest support a reasonable belief that thesuspect may gain possession of a weapon or be able to destroy evidence located in thebag' " (People vGeddes-Kelly, 163 AD3d 716, 717 [2018], quoting People v Anderson, 142 AD3d 713, 715-716 [2016]; see Peoplev Houston, 143 AD3d at 739). The evidence adduced at the suppression hearing failed toestablish the presence of such circumstances (see People v Grimes, 175 AD3d 712, 713 [2019]; People vGeddes-Kelly, 163 AD3d at 717). Officer Musa did not testify that he searched the backpackout of concern for the safety of himself or the public. In addition, Officer Musa did not claim thathe searched the backpack to prevent the defendant from destroying evidence and, in any event,the facts do not support such a claim (see People v Houston, 143 AD3d at 739; People v Thompson, 118 AD3d922, 924 [2014]). Rather, Officer Musa testified that the defendant was not in possession ofa weapon, that the defendant cooperated, and that the defendant made no attempt to flee thescene or discard the backpack.
Under these circumstances, the search was unlawful, and the physical evidence recoveredfrom the backpack should have been suppressed. Accordingly, we reverse the judgment, vacatethe plea, and grant that branch of the defendant's omnibus motion which was to suppress thephysical evidence.
The People contend that even if the search was unlawful, the defendant's statements wereadmissible because they were sufficiently attenuated so as to purge the taint of the illegal search.We cannot review that contention on this appeal because the Supreme Court did not rule on thatissue (see CPL 470.15 [1]; People v LaFontaine, 92 NY2d 470, 474 [1998]; People v Sturges, 164 AD3d 616,617 [2018]). Accordingly, we remit the matter for a new determination on that branch of thedefendant's omnibus motion which was to suppress the statements (see People vLaFontaine, 92 NY2d at 474; People v Thompson, 118 AD3d at 925). Chambers,J.P., Roman, Cohen and Christopher, JJ., concur.