| People v Bowman |
| 2021 NY Slip Op 02846 [194 AD3d 1123] |
| May 6, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mark Bowman, Also Known as Merk,Appellant. |
Aaron A. Louridas, Delmar, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Colangelo, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered May 13, 2016, convicting defendant upon his plea of guilty of the crime of attemptedmurder in the second degree.
During the early morning hours of May 5, 2015, defendant and Jaushi'ir Weaver shot into acrowd of people gathered outside a residential building in the City of Albany to avenge themurder of defendant's cousin. Two individuals in the crowd were struck and injured, and a thirdvictim was fatally wounded. Thereafter, defendant and Weaver, along with their get-away driver,Rashad Quintyne, were charged in a multicount indictment with various crimes in connectionwith the shooting. Following a combined pretrial Dunaway/Huntley/Wade/Mapp hearing,County Court, among other rulings, denied defendant's suppression motions made with respect tohis oral and written statements to police, identification testimony and tangible physical evidence.Prior to trial, and following a Sandoval/Molineux hearing, the court partially granted thePeople's motion to introduce evidence of prior uncharged crimes and/or bad acts attributed todefendant and his codefendants that occurred earlier in the evening of the shootings. Defendantthereafter pleaded guilty to attempted murder in the second degree in full satisfaction of theindictment and waived his right to appeal, with the understanding that he would be sentenced, asa violent predicate offender, to a prison term of 25 years followed by five years of postreleasesupervision.[FN1] CountyCourt sentenced defendant to a reduced prison term of 21 years, followed by five years ofpostrelease supervision. This appeal ensued.
We agree with defendant that his waiver of the right to appeal was invalid. "A waiver of theright to appeal is effective only so long as the record demonstrates that it was made knowingly,intelligently and voluntarily" (People vLopez, 6 NY3d 248, 256 [2006] [citation omitted]; see People v Thomas, 34 NY3d 545, 559 [2019]). " 'Indetermining whether the record demonstrates that a defendant understood an appeal waiver'sconsequences, proper considerations include the defendant's consultation with counsel andon-the-record acknowledgments of understanding, a written appeal waiver that supplements orclarifies the court's oral advice and the defendant's experience with the criminal justicesystem' " (People v Gamble,190 AD3d 1022, 1023-1024 [2021], lv denied 36 NY3d 1097 [2021], quotingPeople v Thomas, 34 NY3d at 560). "[O]f paramount importance is the trial court'sresponsibility to ensure that [a] defendant's full appreciation of the consequences andunderstanding of the terms and conditions of the plea and appeal waiver are apparent on the faceof the record" (People v Thomas, 34 NY3d at 560 [internal quotation marks and citationomitted]).
A review of County Court's brief colloquy with defendant reflects that the court "did notinform defendant that the right to appeal was separate and [*2]distinct from the rights [he] was forfeiting by pleading guilty anddid not adequately explain the nature of the waiver or ascertain defendant's knowledge of itsramifications" (People v Williams,190 AD3d 1192, 1193 [2021]). In addition, the written waiver at issue was overbroad andpurported to "encompass[ ] all issues arising from th[e] criminal proceeding. Although we haveexcused overly-broad written waivers where the court's oral colloquy with the defendant stillpermit[ted] the conclusion that the counseled defendant understood the distinction that someappellate review survived, County Court's terse discussion of defendant's appellate rights fellshort of drawing that distinction" (People v Gervasio, 190 AD3d 1190, 1190-1191 [2021] [internalquotation marks and citations omitted]). Indeed, the waiver at issue misadvised defendant that, aspart of the plea bargain, he was "waiving and giving up all of [his] rights to appeal on all legaland constitutional grounds that [he] might have and that [his] waiver of [his] right to appeal willinclude not only everything that has occurred in this prosecution through today, [his] waiver ofappeal will be extended forward in time and date to include the sentencing proceeding and thesentence imposed so long as the sentence imposed is consistent with the plea agreement in thiscase." The record further demonstrates that County Court did not ascertain from defendant thathe had conferred with counsel prior to the written waiver's execution (see People v Burnell, 183 AD3d931, 932 [2020], lv denied 35 NY3d 1043 [2020]; People v Dolder, 175 AD3d 753,754 [2019]). As such, the record fails to demonstrate that defendant knowingly, intelligently andvoluntarily waived his right to appeal (see People v Gamble, 190 AD3d at 1023; People v Brito, 184 AD3d 900,901 [2020]; People v Burnell, 183 AD3d at 932; People v Alexander, 174 AD3d 1068, 1068 [2019], lvdenied 34 NY3d 949 [2019]).
Defendant's challenge to the voluntariness of his plea is unpreserved for our review due tohis failure to file an appropriate postallocution motion (see People v Aponte, 190 AD3d 1031, 1032 [2021]; People v Apelles, 185 AD3d 1298,1299 [2020], lv denied 35 NY3d 1092; People v Brito, 184 AD3d at 901; People v Schmidt, 179 AD3d1384, 1385 [2020]). "Furthermore, the narrow exception to the preservation requirement wasnot implicated as the record does not disclose that defendant made any statements during the pleacolloquy or at sentencing that cast doubt upon his guilt or otherwise called into question thevoluntariness of the plea" (People vBotts, 191 AD3d 1044, 1045 [2021] [citation omitted], lv denied 36 NY3d 1095[2021]; see People v Rodriguez, 185AD3d 1233, 1235 [2020], lv denied 36 NY3d 975 [2020]; People v Schmidt,179 AD3d at 1385). As to defendant's challenge to County Court's Molineux ruling, his"entry of a valid guilty plea forfeited [his] right to challenge any aspect of [that] ruling"(People v Bowden[*3], 177 AD3d 1037, 1038-1039[2019] [internal quotation marks and citation omitted], lv denied 34 NY3d 1157[2020]).
Next, defendant contends that County Court erred in failing to suppress Weaver's pretrialidentification of defendant from a photo array. According to the testimony at the suppressionhearing, the police recovered video footage from a surveillance camera near the location of theshootings after Weaver and Quintyne had been taken into custody and before defendant wasarrested. The hearing testimony established that Weaver, when shown the video, immediatelyrecognized and identified defendant in the video as an individual he knew as "Merk." Weaverwas then shown a photo array containing six "mug-shot" photos and selected defendant's photo.We find that, under these circumstances, Weaver's identification of defendant from the photoarray was merely confirmatory, and no Wade issue was present (see People vCuevas, 133 AD2d 504, 505 [1987], lv denied 70 NY2d 930 [1987]). Had aWade issue been present, we would find that the photo array was not unduly suggestive."A photo array is unduly suggestive if some feature or characteristic of one of the depictedindividuals or photographs is so unique or distinctive that it draws the viewer's attention to thatphotograph, thereby indicating that the police have selected that particular individual" (People v Marryshow, 162 AD3d1313, 1313 [2018] [citations omitted]; see People v Johnson, 176 AD3d 1392, 1394 [2019], lvdenied 34 NY3d 1129 [2020]; People v Quintana, 159 AD3d 1122, 1126 [2018], lv denied31 NY3d 1086 [2018]). Although it is not required that the individuals in a photo array be nearlyidentical to the defendant, their characteristics "must be sufficiently similar" to those of thedefendant "so as to not 'create a substantial likelihood that the defendant would be singled out foridentification' " (People vLanier, 130 AD3d 1310, 1312 [2015], lv denied 26 NY3d 1009 [2015], quotingPeople v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; see People v Cole, 150 AD3d1476, 1477-1478 [2017], lv denied 31 NY3d 1146 [2018]). All of the photos depictblack males with similar eye color and facial hair with indistinguishable backgrounds behindthem, in similar lighting conditions. Although, as defendant contends, the men are not at identicaldistances from the camera, nothing about defendant's photo was "so distinctive that it would havedrawn the viewer's attention to that photograph, so as to create a substantial likelihood that hewould be singled out for identification" (People v Marryshow, 162 AD3d at 1315; see People v Al Haideri, 141 AD3d742, 743-744 [2016], lv denied 28 NY3d 1025 [2016]; People v Lanier, 130AD3d at 1312).
We also reject defendant's contention that the search warrant, obtained by police tophotograph defendant's injuries, failed to provide a sufficiently particular description ofhim[FN2] and was notsupported by probable cause. "To establish probable [*4]cause forthe issuance of a search warrant, the warrant application must demonstrate that there is sufficientinformation to support a reasonable belief that evidence of a crime may be found in a certainplace" (People v Cazeau, 192 AD3d1388, 1388 [2021] [internal quotation marks and citations omitted]; see People v Luciano, 152 AD3d989, 991 [2017], lv denied 30 NY3d 1020 [2017]). Here, the search warrant directedthe police to search "[t]he person of Mark Bowman dob 08/27/90" for "[e]vidence consisting ofphysical injury including but not limited to bruising, swelling, lacerations, scratches, scrapes andscabbing and to document through photographic collection." As County Court correctlydetermined, the descriptions in the warrant and its supporting affidavit were sufficiently definiteto enable the police to identify the person and evidence that the magistrate had determined shouldbe the subject of the search and seizure (see People v Cowan, 177 AD3d 1173, 1176 [2019], lvdenied 34 NY3d 1127 [2020]). In addition, the applicant's sworn allegations of fact andevidentiary material offered in support of the search warrant[FN3] was sufficient to support a reasonableconclusion that evidence of a crime was to be found on defendant's person (see People v Schaefer, 163 AD3d1179, 1181 [2018], lv denied 32 NY3d 1007 [2018]; People v Vanness, 106 AD3d1265, 1266-1267 [2013], lv denied 22 NY3d 1044 [2013]), thus providing probablecause for the issuance of the search warrant.
Next, defendant argues that County Court erred in denying his motion to suppress his oraland written statements to a police detective that he contends were made while he was in custodyand after he had invoked his right to counsel. It is well settled that Miranda warnings arerequired prior to custodial interrogation and that a statement obtained in violation of thisprinciple must be suppressed (see Miranda v Arizona, 384 US 436, 471-472 [1966];People v Berg, 92 NY2d 701, 704 [1999]; People v Henry, 114 AD3d 1025, 1026 [2014], lv dismissed22 NY3d 1199 [2014]). "[T]he right to counsel indelibly attaches as soon as 'a defendant incustody unequivocally requests the assistance of counsel' " (People v Harris, 177 AD3d 1199,1203 [2019], lv denied 35 NY3d 970 [2020], quoting People v Glover, 87 NY2d838, 839 [1995]; see People vFiorino, 130 AD3d 1376, 1379 [2015], lv denied 26 NY3d 1087 [2015])."Whether a particular request is or is not unequivocal is a mixed question of law and fact thatmust be determined with reference to the circumstances surrounding the request[,] including thedefendant's demeanor, manner of expression and the particular words found to have been used bythe defendant" (People v Glover, 87 NY2d at 839 [citations omitted]; accord People v Henry, 133 AD3d1085, 1086 [2015]; People vJemmott, 116 AD3d 1244, 1246 [2014]). "The relevant inquiry is whether a reasonablepolice officer would have understood the statement in question as a request for an attorney, [*5]and a statement that is merely a forewarning of a possible,contingent desire to confer with counsel rather than an unequivocal statement of [a] defendant'spresent desire to do so is not sufficient to invoke the right to counsel" (People v Slocum, 133 AD3d 972,975 [2015] [internal quotation marks and citations omitted], appeal dismissed 29 NY3d954 [2017]). "Generally, remarks that are subject to numerous objective interpretations or adefendant's mere 'suggestion that counsel might be desired . . . will notsuffice' " (People v Higgins,124 AD3d 929, 931 [2015], quoting People v Mitchell, 2 NY3d 272, 276 [2004]).
The video recordings of defendant's interrogation and the hearing testimony of, amongothers, the detective who primarily questioned defendant support County Court's determinationthat defendant did not invoke his right to counsel. Defendant's initial interaction with thedetective occurred in an interview room at the police station after defendant had been taken intocustody for an unrelated investigation. Defendant complained of pain from injuries he claimed hesustained when police tackled him to take him into custody. After emergency medical servicespersonnel assessed his injuries, it was decided that defendant would be taken to the hospital.Prior to the transport, the detective and another detective holding a camera entered the room andrequested to photograph defendant's injuries. Defendant initially consented stating, "Yeah, takethe pictures," but then refused to allow photographs, stating, "I don't want the pictures taken.Take me up to the hospital." Defendant then stated, "No pictures until my lawyer gets here," andrepeated "no pictures until my lawyer gets on set." The video recordings and the hearingtestimony reflect that upon defendant's return to the interview room approximately2
We find that defendant's statements—"No pictures until my lawyer gets here," and "nopictures until my lawyer gets on set"—were not an unequivocal request for counsel. Thehearing testimony reflects that the statements were interpreted by the detective as referring to alawyer for his injuries, which is a reasonable interpretation in the context of defendant's claimthat the police were responsible for his injuries. In [*6]our view,defendant's remarks are subject to more than one objective interpretation and do not constitute anunequivocal request for counsel (see People v Higgins, 124 AD3d at 931; People vIsaac, 224 AD2d 993, 994 [1996], lv denied 88 NY2d 937 [1996]).
We reach the same conclusion with respect to defendant's post-Miranda questions."[W]hat if I got a lawyer" and "What if the lawyer that I got doesn't come" can reasonably beviewed as related hypothetical requests for counsel (see People v Meadows, 180 AD3d 1244, 1245 [2020], lvdenied 35 NY3d 994 [2020]), or a mere forewarning of a possible, contingent desire toconfer with counsel as opposed to a present desire to do so (see People v Slocum, 133AD3d at 975). "The suppression court's credibility determinations and choice between conflictinginferences to be drawn from the proof are granted deference and will not be disturbed unlessunsupported by the record" (People vBarski, 66 AD3d 1381, 1382 [2009] [internal quotation marks and citations omitted],lv denied 13 NY3d 905 [2009]). We find that the record supports County Court's factualfindings that defendant was given Miranda warnings that he acknowledged andknowingly waived and that no force, threats, promises or other forms of coercion or unfairinducement were used to secure defendant's statements, and the motion to suppress hisstatements was properly denied.
We are unpersuaded that the sentence imposed was harsh and excessive. Initially we notethat, given the invalidity of the appeal waiver, defendant's challenge to the severity of hissentence is not foreclosed (see People v Williams, 190 AD3d at 1193; People v Cruz, 186 AD3d 932,933 [2020], lv denied 35 NY3d 1112 [2020]). "A sentence that falls within thepermissible statutory range will not be disturbed unless it can be shown that the sentencing courtabused its discretion or extraordinary circumstances exist warranting a modification" (People v Cancer, 185 AD3d 1353,1354 [2020] [internal quotation marks and citations omitted]; see People v Barzee, 190 AD3d 1016, 1021-1022 [2021]). CountyCourt sentenced defendant to a reduced prison term that was four years less than the sentencingpromise made when defendant pleaded guilty. The transcript of the sentencing proceedingreflects that the court considered defendant's circumstances, including the severity of the crimeand defendant's cooperation in testifying against a codefendant, which helped the People secure aconviction in that case. Upon review of the record, we discern no abuse of discretion orextraordinary circumstances warranting a modification of the sentence in the interest of justice(see People v Bombard, 187 AD3d1417, 1420 [2020]; People v Cancer, 185 AD3d at 1354; People v Rodriguez, 185 AD3d1296, 1297 [2020]). Finally, we find unpreserved defendant's pro se contention that CountyCourt erred in permitting the People to proceed on the first indictment, and his remaining pro secontentions are without merit[*7].
Egan Jr., J.P., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote 1:Weaver was convicted, after ajury trial, of murder in the second degree and criminal possession of a weapon in the seconddegree and his judgment of conviction was affirmed on appeal (People v Weaver, 167 AD3d 1238[2018], lv denied 33 NY3d 955 [2019]).
Footnote 2:The issuing magistrate wasprovided with defendant's name, date of birth and a black and white copy of the photo array.
Footnote 3:The documents provided to themagistrate included various case reports, the arrest report pertaining to Weaver's arrest, the photoarray and still images from the video surveillance.