Opinion
626 KA 17-00492
11-10-2022
The PEOPLE of the State of New York, Respondent, v. Randy T. HOWARD, Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree ( Penal Law § 125.20 [1] ), defendant contends that the written waiver of the right to appeal is invalid because it contained overbroad advisements suggesting that it was "an absolute bar to the taking of a direct appeal" ( People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ), and that the oral waiver of the right to appeal did not cure the deficiencies in the written waiver. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of any of defendant's contentions, we nevertheless affirm the judgment.
Defendant contends that Supreme Court erred in refusing to suppress evidence obtained as a result of an allegedly unlawful arrest without conducting a hearing with respect to the legality of that arrest. A court is required to grant a suppression hearing "if the defendant ‘raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue’ of whether evidence was obtained in a constitutionally permissible manner" ( People v. Burton , 6 N.Y.3d 584, 587, 815 N.Y.S.2d 7, 848 N.E.2d 454 [2006] ; see People v. Mendoza , 82 N.Y.2d 415, 426, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993] ). The "factual sufficiency should be determined with reference to the face of the pleadings, the context of the motion and defendant's access to information" ( Mendoza , 82 N.Y.2d at 422, 604 N.Y.S.2d 922, 624 N.E.2d 1017 ; see People v. Battle , 109 A.D.3d 1155, 1157, 971 N.Y.S.2d 627 [4th Dept. 2013], lv denied 22 N.Y.3d 1038, 981 N.Y.S.2d 372, 4 N.E.3d 384 [2013] ). We reject defendant's contention that a hearing was warranted based on an alleged violation of CPL 140.15 (2). CPL 140.15 (2) provides that, when arresting a person without a warrant, "[t]he arresting police officer must inform such person of his [or her] authority and purpose and of the reason for such arrest unless he [or she] encounters physical resistence, flight or other factors rendering such procedure impractical." Any violation of CPL 140.15 (2) is "a statutory, as opposed to a constitutional, violation" and "does not itself trigger suppression" ( People v. Henry , 185 A.D.2d 1, 3 n., 591 N.Y.S.2d 1018 [1st Dept. 1992], lv denied 81 N.Y.2d 887, 597 N.Y.S.2d 948, 613 N.E.2d 980 [1993] ) or render the arrest unlawful (see People v. Battest , 168 A.D.2d 958, 959, 564 N.Y.S.2d 910 [4th Dept. 1990], lv denied 77 N.Y.2d 958, 570 N.Y.S.2d 491, 573 N.E.2d 579 [1991] ; see also People v. Hampton , 44 A.D.3d 1071, 1072, 844 N.Y.S.2d 399 [2d Dept. 2007], lv denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86 [2008] ).
We further reject defendant's contention that a hearing was warranted based on his allegation that he was arrested without probable cause. It is well settled that a police officer may arrest a person without a warrant when he or she has probable cause to believe that such person has committed a crime (see People v. Johnson , 66 N.Y.2d 398, 402, 497 N.Y.S.2d 618, 488 N.E.2d 439 [1985] ). The search warrant application used to secure a search warrant for the premises in which defendant was arrested was before the court, and that application "was sufficient to establish probable cause to believe that defendant had committed [a crime]" ( People v. Carlton , 26 A.D.3d 738, 739, 810 N.Y.S.2d 606 [4th Dept. 2006] ; see People v. Snagg , 35 A.D.3d 1287, 1288, 825 N.Y.S.2d 874 [4th Dept. 2006], lv denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243 [2007] ; see generally People v. Parker , 160 A.D.3d 989, 990, 72 N.Y.S.3d 467 [2d Dept. 2018] ). In support of his motion, defendant "failed to raise factual issues sufficient to require a hearing" ( People v. Caldwell , 78 A.D.3d 1562, 1563, 910 N.Y.S.2d 740 [4th Dept. 2010], lv denied 16 N.Y.3d 796, 919 N.Y.S.2d 513, 944 N.E.2d 1153 [2011] ; see Mendoza , 82 N.Y.2d at 426, 604 N.Y.S.2d 922, 624 N.E.2d 1017 ).
Defendant further contends that the court erred in denying defense counsel's request for an adjournment of sentencing in order to, inter alia, submit a motion on defendant's behalf. It is well settled that the determination whether to grant an adjournment of sentencing rests within the sound discretion of the court and should not be disturbed unless there is a clear abuse of that discretion (see People v. Hernandez , 192 A.D.3d 1528, 1532, 145 N.Y.S.3d 224 [4th Dept. 2021], lv denied 37 N.Y.3d 957, 147 N.Y.S.3d 529, 170 N.E.3d 403 [2021] ; see generally People v. Spears , 24 N.Y.3d 1057, 1059-1060, 999 N.Y.S.2d 818, 24 N.E.3d 1082 [2014] ). Defense counsel sought an adjournment to review the plea minutes and prepare a motion to withdraw the plea, and to investigate possible newly discovered evidence. The court noted that the plea was entered knowingly and voluntarily and advised defendant that it would entertain any postconviction motion based on newly discovered evidence. Under the circumstances, we conclude that the court did not abuse its discretion in denying the request for an adjournment (see People v. Shanley , 189 A.D.3d 2108, 2108, 134 N.Y.S.3d 856 [4th Dept. 2020], lv denied 36 N.Y.3d 1100, 144 N.Y.S.3d 117, 167 N.E.3d 1252 [2021] ; People v. Ippolito , 242 A.D.2d 880, 880-881, 662 N.Y.S.2d 881 [4th Dept. 1997], lv denied 91 N.Y.2d 874, 668 N.Y.S.2d 573, 691 N.E.2d 645 [1997] ; see also People v. Rivera , 34 A.D.3d 240, 240-241, 823 N.Y.S.2d 147 [1st Dept. 2006], lv denied 8 N.Y.3d 926, 834 N.Y.S.2d 517, 866 N.E.2d 463 [2007] ; People v. Vucetovic , 258 A.D.2d 335, 335, 685 N.Y.S.2d 203 [1st Dept. 1999], lv denied 93 N.Y.2d 930, 693 N.Y.S.2d 514, 715 N.E.2d 517 [1999] ).
We have considered defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.