Opinion
2018-06047 Ind. No. 17-00610
12-04-2019
The PEOPLE, etc., Respondent, v. Angel RODRIGUEZ, Appellant.
Richard N. Lentino, Middletown, NY, for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (William C. Ghee of counsel), for respondent.
Richard N. Lentino, Middletown, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (William C. Ghee of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Orange County (William L. DeProspo, J.), rendered April 19, 2018, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial (Nicholas De Rosa, J.), without a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v. Bradshaw , 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez , 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The County Court did not adequately explain the nature of the right to appeal, nor did it ensure the defendant's understanding of the distinction between the waiver of his right to appeal and other rights automatically forfeited upon a plea of guilty (see People v. Rivas , 166 A.D.3d 1019, 86 N.Y.S.3d 741 ; People v. Pelaez , 100 A.D.3d 803, 954 N.Y.S.2d 554 ). Since the defendant's waiver of the right to appeal was invalid, it does not preclude appellate review of his contentions.
However, we agree with the County Court's denial, without a hearing, of that branch of the defendant's omnibus motion which was to suppress the identification testimony of an undercover police officer who purchased narcotics from the defendant. The undercover officer's photographic identification of the defendant, made only minutes after the transaction, was confirmatory in nature, thereby obviating the need for a hearing (see People v. Wharton , 74 N.Y.2d 921, 922–923, 550 N.Y.S.2d 260, 549 N.E.2d 462 ; People v. Twitty , 36 A.D.3d 723, 724, 826 N.Y.S.2d 750 ; People v. Andrews , 30 A.D.3d 434, 435, 818 N.Y.S.2d 110 ; People v. Polk , 284 A.D.2d 416, 417, 728 N.Y.S.2d 171 ).
The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.
MASTRO, J.P., LEVENTHAL, IANNACCI and CHRISTOPHER, JJ., concur.