Opinion
1084/19 KA 17-01302
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Joshua L. MILLER, Defendant-appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAIXI XU OF COUNSEL), FOR DEFENDANT-APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAIXI XU OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.
Memorandum: This case is before us upon remittitur from the Court of Appeals ( People v. Bisono , 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 [2020], revg People v. Miller , 177 A.D.3d 1397, 110 N.Y.S.3d 615 [4th Dept. 2019] ). We previously affirmed the judgment convicting defendant upon his plea of guilty of attempted criminal possession of a controlled substance in the second degree ( Penal Law §§ 110.00, 220.18 [2] ) and concluded that defendant's waiver of the right to appeal was valid and that it encompassed his challenge to the severity of the sentence as well as his challenge to County Court's suppression ruling ( Miller , 177 A.D.3d at 1397, 110 N.Y.S.3d 615 ). The Court of Appeals reversed, determining that, pursuant to the analysis in People v. Thomas , 34 N.Y.3d 545, 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], defendant's waiver of the right to appeal was "invalid and unenforceable" ( Bisono , 36 N.Y.3d at 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239 ). The Court of Appeals remitted the matter to this Court for consideration of issues raised but not determined previously ( id. at 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239 ). We now affirm.
Contrary to defendant's contention, the court did not err in refusing to suppress evidence recovered during the execution of a search warrant. The information in the search warrant application "was indicative of an ongoing drug operation at [the searched location], and thus the application established probable cause to believe that a search of [that location] would result in evidence of drug activity" ( People v. Santos , 122 A.D.3d 1394, 1395, 996 N.Y.S.2d 858 [4th Dept. 2014] [internal quotation marks omitted]; see People v. Coleman , 176 A.D.3d 851, 852, 107 N.Y.S.3d 877 [2d Dept. 2019], lv denied 34 N.Y.3d 1076, 116 N.Y.S.3d 133, 139 N.E.3d 791 [2019] ).
We reject defendant's further contention that the court failed to comply with CPL 710.60 (6), which requires it to "set forth on the record its findings of facts, its conclusions of law and the reason for its determination" with respect to suppression. Although the court's statement was terse, we conclude that it was in substantial compliance with the statutory requirement ( see People v. Franco , 167 A.D.2d 957, 957, 561 N.Y.S.2d 1019 [4th Dept. 1990] ).
Finally, we conclude that the sentence is not unduly harsh or severe.