Opinion
1480 KA 16–00233
02-09-2018
The PEOPLE of the State of New York, Respondent, v. Patrick M. BOOTH, Defendant–Appellant.
EFTIHIA BOURTIS, ROCHESTER, FOR DEFENDANT–APPELLANT. PATRICK M. BOOTH, DEFENDANT–APPELLANT PRO SE. KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
EFTIHIA BOURTIS, ROCHESTER, FOR DEFENDANT–APPELLANT.
PATRICK M. BOOTH, DEFENDANT–APPELLANT PRO SE.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a controlled substance in the third degree ( Penal Law §§ 110.00, 220.16[1] ). We agree with defendant that the waiver of the right to appeal was not valid. County Court did not engage defendant in an adequate colloquy to ensure that the waiver was knowing and voluntary (see People v. Ricks, 145 A.D.3d 1610, 1610, 45 N.Y.S.3d 738 [4th Dept. 2016], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017] ; People v. Brown, 296 A.D.2d 860, 860, 745 N.Y.S.2d 368 [4th Dept. 2002], lv denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 [2002] ). While the record contains a written appeal waiver, the written waiver, standing alone, offers no assurance that defendant knowingly, voluntarily and intelligently gave up his right to appeal (see People v. Welcher, 138 A.D.3d 1481, 1482, 30 N.Y.S.3d 461 [4th Dept. 2016], lv denied 28 N.Y.3d 938, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016] ) inasmuch as the court only asked defendant whether he signed the waiver, not whether he had read or understood its contents (see People v. Peterkin, 153 A.D.3d 1568, 1569, 61 N.Y.S.3d 398 [4th Dept. 2017] ; Ricks, 145 A.D.3d at 1610, 45 N.Y.S.3d 738 ).
We reject defendant's contention in his main and pro se supplemental briefs that the court improperly refused to suppress items of tangible evidence obtained from him by police officers following the stop of the vehicle in which he was the back seat passenger. The officers were authorized to stop the vehicle based upon their observation of an inoperable brake light, which was a violation of Vehicle and Traffic Law § 375(40)(b) (see People v. John, 119 A.D.3d 709, 710, 988 N.Y.S.2d 885 [2d Dept. 2014], lv denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 [2014] ; People v. Garcia, 30 A.D.3d 833, 834, 817 N.Y.S.2d 723 [3d Dept. 2006] ). When one of the officers looked into the area of the back seat, he recognized, based upon his training and experience, items that could be utilized for the production of methamphetamine. The officer had an objective credible reason at that point to request information from defendant (see People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] ). The officer could have also requested that defendant step out of the vehicle (see People v. Robinson, 74 N.Y.2d 773, 775, 545 N.Y.S.2d 90, 543 N.E.2d 733 [1989], cert denied 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376 [1989] ; People v. McLaurin, 70 N.Y.2d 779, 781–782, 521 N.Y.S.2d 218, 515 N.E.2d 904 [1987] ), but the court credited the officer's testimony that defendant spontaneously and voluntarily exited the vehicle.
When defendant was out of the vehicle, the officer noticed on defendant's clothing a distinct chemical odor that the officer associated with the production of methamphetamine. Before the officer spoke to him, defendant made repeated movements toward a large bulge in his front jacket pocket, despite the officer's repeated request that defendant keep his hands out of his pocket, prompting the officer to become reasonably concerned for his safety (see People v. Glover, 87 A.D.3d 1384, 1384–1385, 930 N.Y.S.2d 342 [4th Dept. 2011], lv denied 19 N.Y.3d 960, 950 N.Y.S.2d 112, 973 N.E.2d 210 [2012] ; People v. Robinson, 278 A.D.2d 808, 809, 718 N.Y.S.2d 524 [4th Dept. 2000], lv denied 96 N.Y.2d 787, 725 N.Y.S.2d 651, 749 N.E.2d 220 [2001] ). That concern increased when, upon being advised by the officer that he was going to pat defendant down for weapons, defendant became tense and immediately reached for another pocket (see People v. Wiggins, 126 A.D.3d 1369, 1369–1370, 4 N.Y.S.3d 798 [4th Dept. 2015] ). The patdown produced a switchblade knife, which provided probable cause for defendant's arrest (see Penal Law § 265.01[1] ). As the court concluded, the remaining evidence seized from defendant's person could have been lawfully obtained pursuant to his lawful arrest (see People v. Johnson, 132 A.D.3d 1295, 1297, 17 N.Y.S.3d 236 [4th Dept. 2015], lv denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ), but the officer, exhibiting an abundance of caution, obtained a warrant. In sum, therefore, we agree with the suppression court that the police conduct "was justified in its inception and at every subsequent stage of the encounter" ( People v. Nicodemus, 247 A.D.2d 833, 835, 669 N.Y.S.2d 98 [4th Dept. 1998], lv denied 92 N.Y.2d 858, 677 N.Y.S.2d 88, 699 N.E.2d 448 [1998], citing De Bour, 40 N.Y.2d at 215, 386 N.Y.S.2d 375, 352 N.E.2d 562 ).
Finally, we reject defendant's contention in his main and pro se supplemental briefs that he was denied effective assistance of counsel. " ‘In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel’ " ( People v. Singletary, 51 A.D.3d 1334, 1335, 858 N.Y.S.2d 483 [3d Dept. 2008], lv denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ). Here, defense counsel negotiated a favorable plea, and defendant has not demonstrated "the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings in his conduct of the suppression hearing ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Finally, we reject defendant's contention that he was denied effective assistance of counsel based upon the appearance of retained counsel's associate to represent defendant at the plea proceeding.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.