Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Darrell HOFFMAN, also known as Durrell, Defendant–Appellant.
Bridget L. Field, Rochester, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
Bridget L. Field, Rochester, for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of gang assault in the first degree (Penal Law § 120.07 ). We agree with defendant that his waiver of the right to appeal is not valid (see People v.
Huddleston, 134 A.D.3d 1458, 1458–1459, 21 N.Y.S.3d 796, lv. denied 27 N.Y.3d 966; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Considering the prosecutor's plea colloquy and defendant's written waiver of the right to appeal, we conclude that the record as a whole “fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Huddleston, 134 A.D.3d at 1459, 22 N.Y.S.3d 728 [internal quotation marks omitted]; see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Furthermore, Supreme Court did not make “clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof” (People v. Guantero, 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438, lv. denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [internal quotation marks omitted] ).
We agree with defendant that, during the suppression hearing, the court erred in precluding defendant from cross-examining the police investigator on the issue whether “Witness # 1” was sufficiently familiar with defendant in order to render the single photo identification of defendant by that witness “merely confirmatory” (People v. Williamson, 79 N.Y.2d 799, 801, 580 N.Y.S.2d 170, 588 N.E.2d 68 ). Although the court conducted a Wade hearing, which ordinarily eliminates the need for a Rodriguez hearing (see People v. Quinones, 5 A.D.3d 1093, 1093, 773 N.Y.S.2d 671, lv. denied 3 N.Y.3d 646, 782 N.Y.S.2d 417, 816 N.E.2d 207 ), we conclude that the court's error during the suppression hearing renders a Rodriguez hearing necessary in this case (see Williamson, 79 N.Y.2d at 800–801, 580 N.Y.S.2d 170, 588 N.E.2d 68 ). We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a hearing to determine whether the identification by the subject witness was truly confirmatory in nature (see People v. Rodriguez, 79 N.Y.2d 445, 451–453, 583 N.Y.S.2d 814, 593 N.E.2d 268 ) and, if the court determines that the identification was not confirmatory, it must further determine whether the single photo identification procedure employed with the subject witness was unduly suggestive (see generally People v. Kairis, 37 A.D.3d 1070, 1071, 829 N.Y.S.2d 344, lv. denied 9 N.Y.3d 846, 840 N.Y.S.2d 772, 872 N.E.2d 885 ). Because no determination has yet been made that the single photo identification procedure at issue was unduly suggestive, the appeal may be held in abeyance for a postjudgment hearing (see People v. Redding, 47 A.D.3d 953, 953–954, 850 N.Y.S.2d 198 ).
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings.