Opinion
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Moses MADDEN, III, Defendant–Appellant.
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of reckless endangerment in the first degree (Penal Law § 120.25 ) and aggravated criminal contempt (§ 215.52[1] ). As the People correctly concede, defendant's written waiver of the right to appeal is invalid because the record establishes that Supreme Court did not explain the written waiver to defendant or ascertain that he understood its contents (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Terry, 138 A.D.3d 1484, 1484, 30 N.Y.S.3d 464, lv. denied 27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 ). Indeed, a "written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal" (People v. Banks, 125 A.D.3d 1276, 1277, 2 N.Y.S.3d 714, lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 [internal quotation marks omitted] ). Moreover, the record does not support the People's contention that defendant pleaded guilty before the court ruled on his suppression motion and thus forfeited his challenge to the court's suppression determination (see generally People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 ; People v. Scaccia, 6 A.D.3d 1105, 1105, 776 N.Y.S.2d 420, lv. denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837 ). Although the court noted during the plea colloquy that it had not yet issued a written order denying defendant's motion, the court did issue an oral suppression ruling, and a written order is not required in seeking to review an adverse suppression ruling pursuant to CPL 710.70(2) (see People v. Elmer, 19 N.Y.3d 501, 505, 950 N.Y.S.2d 77, 973 N.E.2d 172 ). Contrary to the People's contention, the court's comments that it intended to issue a written order did not constitute a retraction of its oral order.
On the merits, however, we conclude that the court properly refused to suppress defendant's statements to the police on the ground that his indelible right to counsel was allegedly violated. Defendant failed to meet his burden of establishing that his indelible right to counsel had attached before he made his statements to the police (see People v. Castor, 128 A.D.3d 1357, 1358, 8 N.Y.S.3d 746, lv. denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 ; People v.
Brown, 46 A.D.3d 1128, 1129, 847 N.Y.S.2d 729 ; see generally People v. Cohen, 90 N.Y.2d 632, 638–639, 665 N.Y.S.2d 30, 687 N.E.2d 1313 ).
Finally, we reject defendant's challenge to the factual sufficiency of his plea allocution. It is well established that a defendant who pleads guilty need not "acknowledge[ ] committing every element of the pleaded-to offense ... or provide[ ] a factual exposition for each element of the pleaded-to offense" (People v. Seeber, 4 N.Y.3d 780, 781, 793 N.Y.S.2d 826, 826 N.E.2d 797 ). A plea will not be vacated where, as here, the defendant does not negate an element of the pleaded-to offense during the colloquy or otherwise cast doubt on his or her guilt or the voluntariness of the plea (see Seeber, 4 N.Y.3d at 781–782, 793 N.Y.S.2d 826, 826 N.E.2d 797 ; People v. Jeanty, 41 A.D.3d 1223, 1223, 838 N.Y.S.2d 293, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 ). Thus, we conclude that, "even if ‘defendant's allocution did not establish the essential elements of the crime to which he pleaded guilty, it would not require vacatur of his plea since there is no suggestion in the record that the plea was improvident or baseless' " (People v. O'Keefe, 170 A.D.2d 1020, 1020, 566 N.Y.S.2d 166, lv. denied 77 N.Y.2d 965, 570 N.Y.S.2d 498, 573 N.E.2d 586 ; see People v. Pratcher, 50 A.D.3d 1063, 1064, 856 N.Y.S.2d 646, lv. denied 11 N.Y.3d 793, 866 N.Y.S.2d 619, 896 N.E.2d 105 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.