Opinion
September 18, 1990
Appeal from the Supreme Court, New York County, Thomas B. Galligan, J.
On June 7, 1986, defendant robbed Patricia Dieringer at knifepoint, and escaped in a stolen white Thunderbird whose license number was recorded by a witness. On June 16, 1986, defendant attempted to rob another victim, and fled in the same Thunderbird. After his arrest later that day in the stolen Thunderbird, defendant appeared in two lineups, where he was identified by Dieringer and two witnesses to her robbery, and by the victim of the June 16 attempted robbery. At the conclusion of a Wade hearing, after viewing the lineup photographs, the court concluded that the composition of and the procedures followed in the lineups were fair, and denied defendant's motion to suppress identification testimony.
Immediately thereafter, defendant offered to plead guilty to robbery in the first degree in satisfaction of the consolidated indictment. As part of the plea agreement, the court promised to sentence defendant to 10 years to life (the minimum period allowable) if he was later found to be a persistent violent felony offender, and after having been so advised, the defendant agreed to waive his right to appeal the denial of his Wade motion.
In view of defendant's waiver, we decline to consider the issue defendant now seeks to raise challenging the propriety of the court's denial of his suppression motions. A knowing, voluntary and intelligent waiver of appellate rights, which is part of a reasonable plea bargain, is enforceable (People v. Seaberg, 74 N.Y.2d 1, 11). People v. Ramos ( 152 A.D.2d 209), relied upon by the defendant, is clearly distinguishable. In Ramos, defense counsel had only mentioned waiver after defendant entered his plea and had been arraigned on the predicate felony statement filed by the People. Nothing in the record in Ramos indicated that defendant even knew that the waiver was part of the plea bargain. In the instant case, the waiver was explicitly discussed with defendant, and his options were spelled out for him before he pleaded guilty. The waiver was, accordingly, enforceable. Were we to reach the issue, we would find it to be without merit (People v. Peterkin, 151 A.D.2d 407, affd 75 N.Y.2d 985; People v. Chipp, 75 N.Y.2d 327).
Nor was there error in the trial court's refusal to grant defendant an adjournment of sentencing in order to challenge a 1979 conviction which had been found to constitute a predicate felony in 1983. CPL 400.15 (8) provides that once a finding has been entered pursuant to that section, the finding is binding in any future proceeding where the issue may arise.
Concur — Kupferman, J.P., Sullivan, Milonas, Ellerin and Smith, JJ.