| People v Stratton |
| 2022 NY Slip Op 00334 [201 AD3d 1201] |
| January 20, 2022 |
| Appellate Division, Third Department |
[*1](January 20, 2022)
| The People of the State of New York,Respondent, v Nahmel Stratton, Appellant. |
Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered March 22, 2018, convicting defendant upon his plea of guilty of the crime of criminalpossession of a weapon in the second degree.
In May 2017, defendant was charged with criminal possession of a weapon in the seconddegree for possessing a loaded firearm in the area of Johnnie's Bar in the City of Albany.Following Darden and Dunaway/Mapp hearings, County Court denied defendant'smotion to suppress the loaded firearm. In January 2018, defendant entered into a negotiated pleaagreement and pleaded guilty to the charge with the understanding that he would waive his rightto appeal and be sentenced to a prison term of seven years with five years of postreleasesupervision. He also signed a written waiver of his right to appeal during the plea proceedings.At sentencing, defendant asked the court to instead sentence him to a prison term of eight yearsand allow him the right to appeal the court's suppression decision. County Court denied hisrequest, and defendant was sentenced in accord with the negotiated plea agreement. Defendantappeals.
Defendant argues that his waiver of the right to appeal was overly broad and, thus, notknowing, voluntary and intelligent. We agree. We have found this exact written waiver, utilizedby the Albany County District Attorney's office, to be overly broad (see People v Robinson, 195 AD3d1235, 1236 [2021]; People vDowns, 194 AD3d 1118, 1118-1119 [2021], lv denied 37 NY3d 971 [2021]),and County Court's colloquy did not cure its defects (see People v Winters, 196 AD3d 847, 848-849 [2021], lvdenied 37 NY3d 1030 [2021]; People v Figueroa, 192 AD3d 1269, 1270 [2021]). Thus,defendant's waiver of the right to appeal is unenforceable, and we will therefore decide thesuppression issues relative to the loaded firearm.
The facts at the Darden and Dunaway/Mapp hearings establish that, in theearly hours of April 28, 2017, Scott Gavigan, an investigator with the City of Albany PoliceDepartment, received a telephone call from a confidential informant (hereinafter CI) telling him,as it was happening, that an individual known as Mel had placed a handgun in his waistbandoutside of a bar on Central Avenue in Albany, gotten into a black Durango SUV with four or fiveother black males and was heading to Johnnie's Bar on Broadway in Albany. The CI relayed thevehicle's license plate number and indicated that it had Texas plates. As Gavigan was off duty, hecalled the dispatcher for the police department and relayed the information that he had receivedfrom the CI. Shane Merritt, an Albany police officer, testified that, shortly after informationconcerning the vehicle was dispatched, he contacted the dispatcher and asked if the vehicle hadNew York or Texas plates as he and his partner had just seen a vehicle with the latter otherwisematching the dispatch description. As Merritt and his partner arrived at Johnnie's Bar, [*2]the dispatcher clarified that the vehicle was reported to have Texasplates, indicating that he had previously mistakenly noted that the vehicle had New York plates.They then saw the same vehicle with the Texas plates attempting to park as one of its occupantswas jumping out of the vehicle. Merritt and his partner ran up to the vehicle, and Merritt told theoccupants to remain inside and place their hands on the dashboard or headrest in front of them.The driver of the vehicle was then removed from the vehicle by Merritt. At that time, anotherofficer, Neil Mullarkey, arrived on the scene and assisted by removing defendant from the reardriver side of the vehicle. Mullarkey testified that, as he was about to pat down defendant,defendant tried to run away, but Mullarkey and another officer were able to stop him. As theofficers were bringing defendant to the ground, they heard what sounded like a heavy metalobject hit the ground, and Merritt then saw a handgun on the ground. Defendant was accordinglyarrested and taken into custody, and the firearm was recovered and found to be loaded.
Defendant maintains that the loaded firearm should be suppressed as the police did not haveprobable cause for an arrest and did not have reasonable suspicion that criminal activity wasafoot when they effectuated the subject traffic stop based upon the information provided by theCI. "The People may establish probable cause for a warrantless arrest based upon hearsayinformation supplied by an informant provided both the veracity and basis of knowledgerequirements of the Aguilar-Spinelli test have been met" (People v Smalls, 271AD2d 754, 754-755 [2000] [citations omitted], lv denied 95 NY2d 804 [2000]; seePeople v Griminger, 71 NY2d 635, 638-639 [1988]; People v Pettigrew, 161 AD3d 1306, 1307 [2018], lv denied32 NY3d 940 [2018]). According deference to County Court's credibility determinations, thebasis of the CI's firsthand knowledge of the events was clearly established during the confidentialDarden hearing (see People vJackson, 189 AD3d 1705, 1706 [2020], lv denied 36 NY3d 1098 [2021]), aswell as through the testimony of Gavigan at the Dunaway/Mapp hearing (see People v Rodriguez, 195 AD3d1237, 1239-1240 [2021], lv denied 37 NY3d 1061 [2021]). The People showed thatthe CI had a "reliable track record" of assisting the police over the course of the 10 years prior tothe hearings (People v Mondolfi, 221 AD2d 726, 726 [1995] [internal quotation marksand citation omitted], lv denied 88 NY2d 882 [1996]). As to the veracity of the CI'sinformation, Merritt's testimony showed that defendant was in the exact vehicle described by theCI at the location indicated by the CI. The police therefore had reasonable suspicion for thetraffic stop and probable cause for defendant's arrest, and, accordingly, his motion to suppress theloaded firearm was properly denied (see People v Rodriguez, 195 AD3d at 1239-1240;People v Jackson, 189 AD3d at [*3]1706; People v Zirpola, 171 AD3d 1245,1246-1247 [2019], lv denied 34 NY3d 1164 [2020]; People v Clark, 153 AD3d 1093, 1094-1095 [2017], lvdenied 30 NY3d 979 [2017]; Peoplev Cook, 134 AD3d 1241, 1243-1244 [2015], lv denied 26 NY3d 1143 [2016];People v Portelli, 116 AD3d1163, 1164 [2014]).
Defendant next contends that he was not afforded meaningful representation under both theFederal and State Constitutions. However, defendant's claim of ineffective assistance of counselis unpreserved as he did not make an appropriate postallocution motion (see People v Hines, 200 AD3d1217, 1218 [2021]; People vNack, 200 AD3d 1197, 1198 [2021]; People v Greene, 171 AD3d 1407, 1408 [2019]). "Further,defendant did not make any statements during the plea colloquy or at sentencing that cast doubtupon his guilt or otherwise called into question the voluntariness of his plea so as to trigger thenarrow exception to the preservation requirement" (People v Stebbins, 171 AD3d 1395, 1397 [2019] [citationsomitted], lv denied 33 NY3d 1108 [2019]; see People v Pastor, 28 NY3d 1089, 1090 [2016]; People vLopez, 71 NY2d 662, 665-666 [1988]). In any event, defendant received a favorable pleaagreement, and defense counsel's decision not to subpoena certain cell phone records cannot besaid to have been without strategy (see People v Benevento, 91 NY2d 708, 713 [1998];People v Pace, 192 AD3d 1274,1275 [2021], lv denied 37 NY3d 973 [2021]; People v Perry, 148 AD3d 1224, 1225-1226 [2017]).
Egan Jr., J.P., Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.