| People v Monk |
| 2020 NY Slip Op 08127 [189 AD3d 1970] |
| December 31, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jovon L. Monk, Appellant. |
Marlene O. Tuczinski, Chatham, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Tompkins County (Cassidy, J.),rendered May 26, 2017, convicting defendant upon his plea of guilty of the crimes of attemptedcriminal possession of a weapon in the second degree and criminal sale of a controlled substancein the third degree.
Defendant was charged in two separate indictments, the first of which charged him withcriminal sale of a controlled substance in the third degree for selling heroin. The secondindictment charged defendant with criminal possession of a weapon in the second degree,criminal possession of a weapon in the third degree and criminal possession of a firearmstemming from the discovery of a loaded firearm during a search of a vehicle in which he was apassenger. A suppression hearing was held to address, among other things, defendant's motionsto suppress evidence seized from the vehicle. After the close of proof at the hearing, but prior toCounty Court rendering a decision, defendant entered into a plea agreement. Pursuant to the pleaagreement, defendant purportedly waived his right to appeal and pleaded guilty to criminal saleof a controlled substance in the third degree as charged in the first indictment and to the reducedcharge of attempted criminal possession of a weapon in the second degree in satisfaction of thesecond indictment. Defendant was sentenced, as a predicate felon, to concurrent prison terms ofthree years, followed by three years of postrelease supervision, for his conviction of criminal saleof a controlled substance in the third degree, and four years, followed by five years of postreleasesupervision, for his conviction of attempted criminal possession of a weapon in the seconddegree. Defendant appeals.
Initially, we agree with defendant that the appeal waiver was invalid. To that end, althoughCounty Court explained the separate and distinct nature of the right to appeal, the otherwise briefexplanation of the appeal waiver was overly broad and tended to impermissibly signify acomplete bar to any appellate rights (seePeople v Thomas, 34 NY3d 545, 566-567 [2019]; People v Barrales, 179 AD3d 1313, 1314 [2020]), and the writtenappeal waiver—which indicates that defendant waives his right to appeal only inconnection with his guilty plea to criminal sale of a controlled substance in the thirddegree—is insufficient to clarify any misleading information. Moreover, there is noindication in the record that defendant conferred with counsel, read the written waiver orunderstood its consequences, or at what point the written waiver was executed (see People v Brito, 184 AD3d 900,900 [2020]). Given these circumstances, we cannot say that defendant knowingly, voluntarily andintelligently waived his right to appeal (see id. at 900-901; People v Barrales, 179AD3d at 1314-1315).
Turning to the merits, we affirm. Defendant first argues that his motion to suppress evidenceseized from the vehicle should have been, or should be, granted[*2]. However, because defendant pleaded guilty while a decision onhis suppression motion was pending, defendant forfeited his right to appellate review of allclaims related to his suppression motions (see People v Fernandez, 67 NY2d 686, 688[1986]; People v Burks, 179 AD3d1387, 1388 [2020]). Although defendant is correct in noting that there is a record of thesuppression hearing that would allow for appellate review, a prerequisite to such consideration iswhether an order—either oral or written—was issued in the first instance by thetrial court on the suppression issue (see CPL 710.70 [2]; People v Elmer, 19 NY3d 501, 509[2012]). It is undisputed that no such order was issued here, and we decline defendant's invitationto decide his suppression motion in the interest of justice. Defendant's remaining contention isthat County Court's order directing forfeiture of cash and defendant's cell phone, which was partof the plea agreement, is invalid and unenforceable. This issue, however, is unpreserved for ourreview as defendant did not raise any objection to the forfeiture agreement, seek to withdraw hisplea or otherwise express any disinclination to proceed with the plea agreement if forfeiture wasa condition thereof (see People vColeman, 138 AD3d 1014, 1015 [2016], lv denied 27 NY3d 1149 [2016]; People v Burgos, 129 AD3d 627,628 [2015], lv denied 26 NY3d 1038 [2015]).
Lynch, J.P., Clark, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.