Opinion
2014-03-26
The PEOPLE, etc., respondent, v. Allen WOODS, appellant.
Richard J. Barbuto, Babylon, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz of counsel; Matthew C. Frankel on the brief), for respondent.
Richard J. Barbuto, Babylon, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz of counsel; Matthew C. Frankel on the brief), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (St.George, J.), rendered May 21, 2010, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motion, of the suppression of physical evidence.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of the right to appeal is invalid because there is no indication in the record that the defendant understood the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty ( see People v. Moyett, 7 N.Y.3d 892, 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59;People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Therefore, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial, after a hearing pursuant to a stipulation in lieu of motion, of the suppression physical evidence ( seeCPL 710.20[2]; People v. Barrett, 105 A.D.3d 862, 862–863, 962 N.Y.S.2d 673;People v. Jacob, 94 A.D.3d 1142, 1144, 942 N.Y.S.2d 627).
Nevertheless, the hearing court properly denied the suppression of physical evidence. The hearing court properly determined that the police officer's testimony at the hearing established that he had a founded suspicion that the defendant was engaged in criminal activity, triggering the common-law right of inquiry, which, by virtue of the defendant's flight, ripened into reasonable suspicion to pursue him ( see People v. Sierra, 83 N.Y.2d 928, 615 N.Y.S.2d 310, 638 N.E.2d 955;People v. Barrow, 103 A.D.3d 745, 959 N.Y.S.2d 284;People v. Soscia, 96 A.D.3d 1081, 946 N.Y.S.2d 653). Moreover, although, upon the exercise of our factual review power, this Court may make its own findings of fact if it determines that the hearing court incorrectly assessed the evidence ( see People v. Lewis, 107 A.D.3d 826, 827, 966 N.Y.S.2d 687;People v. Anderson, 91 A.D.3d 789, 937 N.Y.S.2d 109;Matter of Robert D., 69 A.D.3d 714, 716–717, 892 N.Y.S.2d 523), we cannot say that the hearing court was incorrect in crediting the police officer's testimony ( see People v. Lewis, 107 A.D.3d at 827, 966 N.Y.S.2d 687).
By pleading guilty, the defendant forfeited his contention regarding the denial of his application to dismiss the count of the indictment that charged him with criminal possession of a weapon in the second degree, based upon the sufficiency of the evidence before the grand jury ( see e.g. People v. Hansen, 95 N.Y.2d 227, 233, 715 N.Y.S.2d 369, 738 N.E.2d 773;People v. Devodier, 102 A.D.3d 884, 885, 958 N.Y.S.2d 220;People v. Wager, 34 A.D.3d 505, 506, 823 N.Y.S.2d 522).