Opinion
KA 01-00045.
November 21, 2003.
Appeal from a judgment of Erie County Court (Drury, J.), entered November 29, 2000, convicting defendant upon his plea of guilty of, inter alia, robbery in the second degree (two counts).
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant-Appellant.
Frank J. Clark, District Attorney, Buffalo (Wendy R. Irene of Counsel), for Plaintiff-Respondent.
Before: Present: Pine, J.P., Hurlbutt, Kehoe, Lawton, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of robbery in the second degree (Penal Law § 160.10, [2][a]) and one count of assault in the second degree (§ 120.05) (appeal No. 1). Defendant also appeals from a judgment convicting him upon his plea of guilty of, inter alia, driving while intoxicated as a felony (Vehicle and Traffic Law § 1192; § 1193 [1][c][ii]) (appeal No. 2). Defendant was sentenced to concurrent terms of incarceration on both convictions.
We reject the People's contention that defendant waived his right to appeal. The single reference to the waiver of the right to appeal, made on a date preceding the actual date of the pleas, is "insufficient to establish that [County Court] `engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice'" ( People v. Brown, 296 A.D.2d 860, 860, lv denied 98 N.Y.2d 767; see People v. Callahan, 80 N.Y.2d 273, 283; People v. Cohen, 210 A.D.2d 343, lv denied 85 N.Y.2d 937). We therefore address the merits of defendant's appeals.
We reject the contention of defendant that the stop of his vehicle following the robbery and assault was not supported by the requisite reasonable suspicion and was improperly based on information from an anonymous source. It is well settled that "[a]n identified citizen informant is presumed to be reliable" ( People v. Rivera, 210 A.D.2d 895, 895-896; see People v. Hetrick, 80 N.Y.2d 344, 349). In this case, the 911 caller gave police "`self-identifying information'" ( People v. Dixon, 289 A.D.2d 937, 937, lv denied 98 N.Y.2d 637) and "[i]t is readily inferable from the suppression hearing evidence that the [bartender and patrons in the bar] at the time of the robbery were the source of the [officers'] information" ( Rivera, 210 A.D.2d at 895; see People v. Parris, 83 N.Y.2d 342, 349-350). Moreover, the police went to the scene of the crimes and identified the witnesses before the stop of defendant's vehicle. Therefore, the information relied upon by the police was not obtained from an anonymous source ( see e.g. Parris, 83 N.Y.2d at 349-350; Dixon, 289 A.D.2d at 937; People v. Gasby, 288 A.D.2d 487, 488, lv denied 97 N.Y.2d 704).
The information given by the citizen informants established the type and color of the vehicle driven by the suspect. The informants also gave the police information identifying at least one of the suspects by name. Based on that information, the police went to a location near that suspect's home to wait for the vehicle to pass. A vehicle matching the description of the suspects' vehicle was spotted on one of two likely routes from the scene of the crime to the identified suspect's home. The vehicle was spotted approximately 10 to 15 minutes after the crime, which is consistent with the length of time it would take to drive from the scene of the crime to the location of the stop. Finally, both the crimes and the stop took place in the early morning hours when traffic was very light. Under the circumstances of this case, we conclude that the court properly determined that the police had the requisite reasonable suspicion to stop the vehicle ( see e.g. People v. Glaze, 255 A.D.2d 932, lv denied 93 N.Y.2d 853; People v. Willsey, 198 A.D.2d 911, lv denied 83 N.Y.2d 812; People v. Johnson, 102 A.D.2d 616, 622-623, lv denied 63 N.Y.2d 776).
Because we affirm the judgment of conviction in appeal No. 1, there is no merit to defendant's contention that the plea on the indictment in appeal No. 2 should be vacated pursuant to People v. Fuggazzatto ( 62 N.Y.2d 862, 863). The agreed-upon sentences are neither unduly harsh nor severe.