| People v Garcia |
| 2020 NY Slip Op 07220 [189 AD3d 879] |
| December 2, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edwal Garcia, Appellant. |
Paul Skip Laisure, New York, NY (Samuel Barr of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Denise Pavlides ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T.Hecht, J.), rendered April 17, 2018, convicting him of criminal possession of a weapon in thethird degree, upon his plea of guilty, and imposing sentence. The appeal from the judgmentbrings up for review the denial, after a hearing, of the defendant's omnibus motion to suppressphysical evidence and his statements to law enforcement officials, and the denial of thedefendant's motion to controvert a search warrant and suppress physical evidence seized in theexecution thereof.
Ordered that the judgment is affirmed.
At a suppression hearing, a police officer testified that at approximately 1:00 a.m., he wasdriving in an unmarked police vehicle with two other police officers when he observed thedefendant driving a vehicle that had a defective headlight. The officer pulled over the vehicle thatthe defendant was driving, approached the driver's side door of the vehicle, and asked thedefendant through the open window for his license, registration, and proof of insurance. Theofficer testified that he detected a strong smell of marijuana emanating from the vehicle. Theofficer testified that he asked the defendant if he had smoked marijuana in the vehicle, and thedefendant responded that he had smoked marijuana in the vehicle earlier that day. While thedefendant was looking for identification, the officer shined his flashlight into the vehicle, wherehe saw an expandable baton on the driver's side door. Although the defendant did not haveidentification, he told the officer his name, and gave the officer his benefits card, which listed hisdate of birth. The officer conducted a computer search using the defendant's name, whichrevealed that the defendant had an active arrest warrant. The defendant was then placed underarrest. After the vehicle that the defendant had been driving was transported to the precinct, theofficer recovered the baton from the driver's side door of the vehicle. While at the precinct, thedefendant asked the officer why the arrest process was taking so long. When the officer told thedefendant that a K-9 unit was searching the vehicle, the defendant responded, "you can do that allyou want, whatever's in the car, the car's not registered to me, my prints aren't on it." Thereafter,the police obtained and executed a search warrant of the vehicle, and seized drugs and a gun fromthe vehicle.
Following the suppression hearing, the Supreme Court denied the defendant's motion tosuppress the baton recovered from the vehicle and his statements to the officer, finding that the[*2]officer had reasonably stopped the vehicle that the defendantwas driving because the officer had probable cause to believe that a traffic violation hadoccurred. The defendant thereafter moved to controvert the search warrant of the vehicle and tosuppress the physical evidence seized in the execution thereof. In a decision and order datedDecember 14, 2017, the court denied, without a hearing, the defendant's motion to controvert thesearch warrant. The defendant pleaded guilty to criminal possession of a weapon in the thirddegree. On appeal, the defendant challenges the validity of his purported appeal waiver and thecourt's suppression rulings.
The defendant's purported waiver of his right to appeal was invalid (see People v Thomas, 34 NY3d545 [2019]). When explaining the waiver of the right to appeal, the Supreme Court stated tothe defendant that, as a result of the waiver, "no higher court will review the proceedings," "[n]olawyer will pursue an appeal" on the defendant's behalf, and the defendant's "plea and sentencewill be final." These statements "utterly 'mischaracterized the nature of the right [the] defendantwas being asked to cede' " (People v Thomas, 34 NY3d 545, 565 [2019], quoting People v Lopez, 6 NY3d 248, 257[2006]), and incorrectly suggested that the waiver may be an absolute bar to the taking of anappeal (see People v Thomas, 34 NY3d at 564; People v Kyra J., 180 AD3d 929, 929-930 [2020]; People v Brown, 181 AD3d 819,820 [2020]; People v Christie, 180AD3d 802 [2020]). The written waiver form did not overcome the ambiguities in the court'sexplanation of the right to appeal as it did not contain clarifying language that appellate reviewremained available for select issues (seePeople v Dixon, 184 AD3d 854 [2020]; People v Contreras, 183 AD3d 759 [2020]). Since the appealwaiver was invalid, it does not preclude appellate review of the defendant's challenge to thecourt's suppression determinations (seePeople v Chy, 184 AD3d 664 [2020]; People v Weeks, 182 AD3d 539 [2020]).
However, the record supports the Supreme Court's finding that the stop of the vehicle that thedefendant was driving was based upon the officer's observation of the vehicle driving at nightwith a defective headlight (see Vehicle and Traffic Law § 375 [2] [a] [1]).Based on this observation, the officer had probable cause to believe that a traffic violationoccurred so as to permit a stop of the defendant's vehicle (see People v Robinson, 97NY2d 341, 349 [2001]; People vJohnson, 83 AD3d 733, 733-734 [2011]; People v Viele, 90 AD3d 1238, 1239 [2011]; People vGraves, 163 AD2d 487, 488 [1990]). Moreover, the credibility determinations of a hearingcourt are accorded great deference on appeal and will not be disturbed unless clearly unsupportedby the record (see People v Holland,133 AD3d 779 [2015]). Contrary to the defendant's contention, the testimony of the officerat the suppression hearing was not incredible, patently tailored to nullify constitutionalobjections, or otherwise unworthy of belief (see People v Batista, 180 AD3d 698, 699 [2020]; People v Lewis, 117 AD3d 751,752 [2014]). Accordingly, we agree with the court's determination, after a hearing, denying thedefendant's omnibus motion to suppress physical evidence and his statements to law enforcementofficials. As a result, the defendant's contention that the basis of the search warrant wasinformation obtained as a result of an illegal stop of the vehicle that he was driving is withoutmerit, and the court properly denied, without a hearing, the defendant's motion to controvert thesearch warrant and to suppress physical evidence seized in execution of the warrant (see People v Anglin, 178 AD3d839, 840 [2019]). Rivera, J.P., Chambers, Miller and Brathwaite Nelson, JJ., concur.