The PEOPLE of the State of New York, Respondent, v. Richard R. HANKERSON, Defendant-Appellant.
-- April 24, 2009
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant-Appellant.Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 ). We agree with defendant that his waiver of the right to appeal is invalid. A single reference by the prosecutor to defendant's agreement to waive that right does not constitute “ ‘an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” (People v. Braswell, 49 A.D.3d 1190, 1191, 856 N.Y.S.2d 366, lv. denied 10 N.Y.3d 860, 860 N.Y.S.2d 486, 890 N.E.2d 249). Although the invalid waiver of the right to appeal thus does not encompass defendant's further contention that County Court erred in refusing to suppress identification testimony, we nevertheless reject that contention. The People met their initial burden of establishing the reasonableness of the police conduct with respect to the showup identification procedures, and defendant failed to establish that those procedures were unduly suggestive (see People v. Jackson, 98 N.Y.2d 555, 559, 750 N.Y.S.2d 561, 780 N.E.2d 162; People v. Morgan, 302 A.D.2d 983, 984, 755 N.Y.S.2d 538, lv. denied 99 N.Y.2d 631, 760 N.Y.S.2d 112, 790 N.E.2d 286).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.