Opinion
2014-10-15
The PEOPLE, etc., respondent, v. Hokeelho BAILEY, appellant.
Lynn W.L. Fahey, New York, N.Y. (Janet Claire Lê of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and David H. Kupfer of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Janet Claire Lê of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and David H. Kupfer of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS and SYLVIA O. HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered February 28, 2012, convicting him of robbery in the first degree (two counts) and attempted robbery in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Chun, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Pressley, 116 A.D.3d 794, 795–796, 983 N.Y.S.2d 322). Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony ( seeCPL 710.20[2]; People v. Crawford, 110 A.D.3d 916, 916, 977 N.Y.S.2d 37; People v. Jacob, 94 A.D.3d 1142, 1144, 942 N.Y.S.2d 627).
Nevertheless, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony. “[T]he purpose of the Wade hearing [ see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149] is to test identification testimony for taint arising from official suggestion during ‘police-arranged confrontations between a defendant and an eyewitness' ” (People v. Dixon, 85 N.Y.2d 218, 222, 623 N.Y.S.2d 813, 647 N.E.2d 1321 quoting People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924). Here, the People established in the first instance that the lineup was not improper, and the defendant failed to establish that the procedure was unduly suggestive ( see People v. Jackson, 98 N.Y.2d 555, 559, 750 N.Y.S.2d 561, 780 N.E.2d 162; People v. Chipp, 75 N.Y.2d 327, 335–336, 553 N.Y.S.2d 72, 552 N.E.2d 608; People v. Currie, 117 A.D.3d 1074, 1075, 986 N.Y.S.2d 609). Accordingly, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony.