| People v Burden |
| 2021 NY Slip Op 00686 [191 AD3d 1260] |
| February 5, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Rashad Burden, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Benjamin L. Nelson of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.),rendered September 6, 2016. The judgment convicted defendant upon a plea of guilty of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Asan initial matter, we agree with defendant that he did not validly waive his right to appealbecause Supreme Court's oral colloquy and the written waiver of the right to appeal provideddefendant with erroneous information about the scope of that waiver and failed to identify thatcertain rights would survive the waiver (see People v Thomas, 34 NY3d 545, 565-566 [2019], certdenied 589 US &mdash, 140 S Ct 2634 [2020]; People v Crogan, 181 AD3d 1212, 1212-1213 [4th Dept 2020],lv denied 35 NY3d 1026 [2020]).
Defendant contends that the court should have suppressed statements and tangible evidencebecause one of the officers who approached the vehicle in which defendant was seated effectedan unlawful seizure before he or any other officer detected the odor of marihuana emanating fromthe vehicle. Defendant's contention is not preserved for our review inasmuch as he failed to raisethat specific contention in his motion papers, at the suppression hearing, or in his posthearingpapers as a ground for suppression (seePeople v Watkins, 151 AD3d 1913, 1913 [4th Dept 2017], lv denied 30 NY3d984 [2017]; see generally People vHudson, 158 AD3d 1087, 1087 [4th Dept 2018], lv denied 31 NY3d 1117[2018]), and we decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [3] [c]). Present—Peradotto, J.P., Carni,NeMoyer, Troutman and Winslow, JJ.