| People v Dilworth |
| 2020 NY Slip Op 07720 [189 AD3d 636] |
| December 22, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jamal Dilworth, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Alma D. Gonzalez of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen and Rebecca Hausnerof counsel), for respondent.
Judgment, Supreme Court, New York County (Gregory Carro, J. at suppression hearing;Ellen N. Biben, J. at plea; Ann E. Scherzer, J. at sentencing), rendered March 28, 2017,convicting defendant of criminal possession of a weapon in the second degree, and sentencinghim, as a second felony offender, to a term of five years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal, which forecloses review of hissuppression claims. The court's oral colloquy avoided conflating the right to appeal with therights normally forfeited upon a guilty plea, and it exceeded the minimum standards for such acolloquy. The record of the plea proceeding, taken together with a detailed written waiver thatdefendant reviewed with his counsel, and that fully explained the appellate rights defendant wasgiving up, established that the waiver was knowing, intelligent and voluntary (see People v Thomas, 34 NY3d545 [2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]; People v Bryant, 28 NY3d 1094,1096 [2016]).
Although the court initiated the plea agreement, and imposed the condition of an appealwaiver sua sponte, we do not find that the court thereby "abandoned the role of a neutral arbiterand assumed the function of an interested party" (People v Towns, 33 NY3d 326, 328 [2019]). This case bears littleresemblance to Towns, where the judge, acting entirely on his own, obtained a witnessfor the prosecution by negotiating a cooperation agreement with a codefendant.
Defendant also cites to People vSutton (184 AD3d 236, 241 [2d Dept 2020], lv denied 35 NY3d 1070 [2020]),in which our colleagues in the Second Department held that a court-initiated appeal waiver wasinvalid where the court had accepted defendants' plea and made its sentence promise beforerequiring an appeal waiver and without setting forth on the record a reason for requiring thewaiver. This Court has not adopted the Second Department's requirement that the court articulatea reason for requiring a plea waiver in a court-initiated plea proceeding. Even if we were to doso, it would not change the result in this case. Unlike in Sutton, the court which tookdefendant's plea included the appeal waiver in the plea offer prior to accepting defendant's plea,explaining that the sentence offered benefitted defendant because it was "the minimum, it's afterhearing, and it's lower than what's ever been offered." Accordingly, this case is distinguishablefrom Sutton.
Regardless of whether defendant validly waived his right to appeal, we find that the recordsupports the hearing court's stated grounds for denying suppression, in light of the Courtof Appeals' recent decision in People v Pena (36 NY3d 978 [2020]). Concur—Renwick, J.P., Gesmer, González, Scarpulla, JJ.