| People v Fahey |
| 2021 NY Slip Op 07284 [200 AD3d 978] |
| December 22, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael J. Fahey, Appellant. |
Andrew E. MacAskill, Garden City, NY, for appellant.
Joyce A. Smith, Acting District Attorney, Mineola, NY (Cristin N. Connell of counsel;Matthew C. Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Teresa K.Corrigan, J.), rendered September 6, 2018, convicting him of rape in the first degree and courseof sexual conduct against a child in the second degree, upon his plea of guilty, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials.
Ordered that the judgment is affirmed.
Considering the totality of the circumstances, including the defendant's relatively limitedexperience with the criminal justice system, the record does not demonstrate that the defendantknowingly, voluntarily, and intelligently waived the right to appeal (see People v Adyl K., 187 AD3d1208, 1209 [2020]; People vZaffuto, 138 AD3d 1156, 1156-1157 [2016]). The Supreme Court's terse oral colloquywith the defendant concerning the waiver failed to advise him that the right to appeal is separateand distinct from other rights that are automatically waived in connection with taking a pleabargain, and that a waiver of the right to appeal was not an absolute bar to the taking of an appeal(see People v Seymour, 189 AD3d1269, 1270 [2020]; People vCruz, 177 AD3d 766, 767 [2019]). Moreover, the written waiver of appeal form signedby the defendant did not overcome these deficiencies in the court's explanation, as it did notcontain language clarifying these matters (see People v Thomas, 34 NY3d 545, 566 [2019]; People v Brown, 195 AD3d 943[2021]). As such, appellate review of the denial of that branch of the defendant's motion whichwas to suppress his statements to law enforcement officials is not precluded (see People v Garcia, 189 AD3d879, 881 [2020]).
The Supreme Court properly denied suppression of the statements the defendant made to lawenforcement officials, as the record does not support his contention that those statements werethe result of an interrogation which created a substantial risk that he might falsely incriminatehimself (see People v Thomas, 22NY3d 629, 641-642 [2014]; Peoplev Smith, 193 AD3d 770, 771 [2021]). Dillon, J.P., Barros, Wooten and Zayas, JJ.,concur.