Opinion
50 KA 18-02088
02-10-2023
The PEOPLE of the State of New York, Respondent, v. Ritchy C. BELTRAN, Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (PAUL SKIP LAISURE OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (PAUL SKIP LAISURE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). As defendant contends and the People correctly concede, defendant did not validly waive his right to appeal. Supreme Court's oral colloquy mischaracterized the waiver as an absolute bar to the taking of an appeal (see People v. Thomas , 34 N.Y.3d 545, 565-566, 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] ; People v. Davis , 188 A.D.3d 1731, 1731, 136 N.Y.S.3d 638 [4th Dept. 2020], lv denied 37 N.Y.3d 991, 152 N.Y.S.3d 415, 174 N.E.3d 355 [2021] ). Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver did not cure the defects in the oral colloquy (see Davis , 188 A.D.3d at 1732, 136 N.Y.S.3d 638 ).
Defendant contends that Penal Law § 265.03 (3) is unconstitutional in light of the United States Supreme Court's decision in New York State Rifle & Pistol Assn., Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). That contention is not preserved for our review (see People v. Wright , 213 A.D.3d 1196,––––, 182 N.Y.S.3d 461 [4th Dept. 2023] ; People v. Reese , 206 A.D.3d 1461, 1462-1463, 170 N.Y.S.3d 375 [3d Dept. 2022] ; People v. Reinard , 134 A.D.3d 1407, 1409, 22 N.Y.S.3d 270 [4th Dept. 2015], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 [2016], cert denied ––– U.S. ––––, 137 S.Ct. 392, 196 L.Ed.2d 308 [2016] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Contrary to defendant's further contention, the court properly refused to suppress the evidence found on his person after he was forcibly detained at gunpoint by the police. Given the totality of the circumstances—which include the short period of time between the 911 call from an identified caller reporting that shots were fired and the police officer's response to the reported location, one-half mile away; the officer's observations that defendant's physical characteristics and clothing matched the description of the suspect as a "short, heavy-set male" wearing dark clothing and traveling on foot; and the officer's report of no other pedestrian foot traffic in the area—the responding officer "was justified in forcibly detaining defendant in order to quickly confirm or dispel [his] reasonable suspicion of defendant's possible [possession of a weapon]" ( People v. Pruitt , 158 A.D.3d 1138, 1139, 70 N.Y.S.3d 691 [4th Dept. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 380, 106 N.E.3d 763 [2018] [internal quotation marks omitted]; see People v. Wright , 210 A.D.3d 1486, 1489, 178 N.Y.S.3d 662 [4th Dept. 2022] ; see generally People v. De Bour , 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ).