Opinion
5607 Ind. 2760/15
02-01-2018
The PEOPLE of the State of New York, Respondent, v. Victor THOMAS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and White & Case, LLP, New York (Louis O'Neill of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Samuel L. Yellen of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), and White & Case, LLP, New York (Louis O'Neill of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Samuel L. Yellen of counsel), for respondent.
Sweeny, J.P., Manzanet–Daniels, Webber, Kahn, Moulton, JJ.
Judgment, Supreme Court, Bronx County (April A. Newbauer, J. at hearing; Michael A. Gross, J. at plea and sentencing), rendered August 24, 2016, as amended October 20, 2016, convicting defendant, upon his plea of guilty, of attempted assault in the first degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.
Defendant made a valid general waiver of his right to appeal, which encompassed his suppression claims (see People v. Kemp, 94 N.Y.2d 831, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ). The court's on-the-record explanation of the appeal waiver "was sufficient because the right to appeal was adequately described without lumping it into the panoply of rights normally forfeited upon a guilty plea" ( People v. Sanders, 25 N.Y.3d 337, 341, 34 N.E.3d 344 [2015] ; see also People v. Bryant, 28 N.Y.3d 1094, 68 N.E.3d 60 [2016] ). The written waiver properly supplemented the court's oral explanation, and did not contain any language this Court has previously found to be unenforceable, or that would otherwise require the invalidation of the waiver. There was no language that "discourages defendants from filing notices of appeal even when they have claims that cannot be waived, such as one concerning the lawfulness of the waiver or the plea agreement itself" ( People v. Santiago, 119 A.D.3d 484, 485–486, 990 N.Y.S.2d 494 [1st Dept. 2014], lv denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ). On the contrary, unlike the form used in People v. Powell, 140 A.D.3d 401, 30 N.Y.S.3d 873 [1st Dept. 2016], lv denied 28 N.Y.3d 1074, 47 N.Y.S.3d 233, 69 N.E.3d 1029 [2016] ), the form did not limit the unwaived issues to constitutional speedy trial and legality of sentencing, but expressly stated that defendant could raise on appeal "the voluntariness of this appeal and waiver." Furthermore, the form here did not contain anything to suggest that the filing of a notice of appeal could be deemed a motion to vacate, or that it would have any other unwanted consequences (see Santiago, 119 A.D.3d at 485, 990 N.Y.S.2d 494 ).
Regardless of whether defendant made a valid waiver of his right to appeal, we find that the hearing court properly denied defendant's suppression motion. The record supports the court's finding that defendant's statement was spontaneous and was not the product of interrogation requiring Miranda warnings. A detective's act of showing defendant an incriminating photograph was, under the circumstances, a permissible response under People v. Rivers, 56 N.Y.2d 476, 480, 453 N.Y.S.2d 156, 438 N.E.2d 862 [1982] ) to defendant's demand to know why he was being arrested (see People v. Wilson, 279 A.D.2d 381, 719 N.Y.S.2d 555 [1st Dept. 2001], lv denied 96 N.Y.2d 869, 730 N.Y.S.2d 44, 754 N.E.2d 1127 [2001] ).