Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Floyd ALSTON, Defendant–Appellant.
Michael Steinberg, Rochester, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
Michael Steinberg, Rochester, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15[4] ). We agree with defendant that the record fails to establish that his waiver of the right to appeal was knowing and voluntary ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). We conclude that the single reference by Supreme Court to the signed written waiver, i.e., whether defendant understood what he had signed, is not sufficient to establish that defendant understood that he was waiving a right that otherwise would have survived the guilty plea ( see People v. Cooper, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172;People v. Norton, 96 A.D.3d 1651, 1651–1652, 946 N.Y.S.2d 812,lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921). We therefore conclude that defendant's contention that the court erred in refusing to suppress identification evidence on the ground that the photo array was unduly suggestive is not encompassed by the waiver ( see People v. Adger, 83 A.D.3d 1590, 1591, 921 N.Y.S.2d 436,lv. denied17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803). We further conclude, however, that defendant's contention is without merit. The court properly determined that the People met their initial burden of establishing that the police conduct with respect to the photo array procedure was reasonable and that defendant failed to meet his ultimate burden of proving that the photo array was unduly suggestive ( see People v. Santiago, 96 A.D.3d 1495, 1496, 946 N.Y.S.2d 383;see generally People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70). The subjects depicted in the array were sufficiently similar in appearance so that the viewer's eye was not drawn to a particular photo “ ‘in such a way as to indicate that the police were urging a particular selection’ ” ( People v. Weston, 83 A.D.3d 1511, 1511, 921 N.Y.S.2d 754,lv. denied17 N.Y.3d 823, 929 N.Y.S.2d 812, 954 N.E.2d 103).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.