PEOPLE v. CISSE (2024)

Judgment, Supreme Court, New York County (Cori H. Weston, J., at suppression hearing;  Neil E. Ross, J., at plea and sentencing), rendered September 6, 2022, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of 364 days, unanimously affirmed.

As an initial matter, we find defendant's waiver of the right to appeal to be invalid.  The court did not make clear that the right to appeal is separate and distinct from the trial rights defendant was waiving by entering a guilty plea (see People v. Ellis, 194 A.D.3d 428, 428, 143 N.Y.S.3d 210 [1st Dept. 2021], lv denied 37 N.Y.3d 964, 148 N.Y.S.3d 765, 171 N.E.3d 241 [2021];  People v. Bonilla, 211 A.D.3d 614, 615, 180 N.Y.S.3d 162 [1st Dept. 2022]).  The court further failed to explain that a waiver of the right to appeal is not an absolute bar to direct appeal and that some issues are nonwaivable (see People v. Bisono, 36 N.Y.3d 1013, 1017, 140 N.Y.S.3d 433, 164 N.E.3d 239).  Thus, the record does not demonstrate that defendant had a full appreciation of the consequences of the waiver (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Thorne, 207 A.D.3d 73, 77, 169 N.Y.S.3d 63 [1st Dept. 2022]).  The written waiver also does not cure the defects in the court's oral colloquy, as there was a conflict between the colloquy and the written waiver, thus causing confusion as to waiver's effect (see People v. Thomas, 34 N.Y.3d 545, 560, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020];  Thorne, 207 A.D.3d at 77, 169 N.Y.S.3d 63).

As to the merits of the suppression issue, the court properly denied defendant's motion to suppress the guns recovered in the two separate incidents.  As to the November 2021 incident, the hearing testimony established that the police had reasonable suspicion to believe that defendant was engaged in criminal activity, justifying their pursuit of defendant.  In response to a radio run of a domestic dispute involving a gun, which also identified the defendant by name, the police entered an apartment building, whereupon they encountered a woman who told them, “He's upstairs.”  As the police ascended the stairs in the stairwell, defendant was coming down and, upon seeing the police, ran back up and fled.  Defendant's immediate flight, combined with the other circumstances, gave rise to reasonable suspicion (see People v. Parker, 32 N.Y.3d 49, 56, 84 N.Y.S.3d 838, 109 N.E.3d 1138 [2018];  People v. Archer, 160 A.D.3d 553, 554, 76 N.Y.S.3d 22 [1st Dept. 2018], lv denied 31 N.Y.3d 1144, 83 N.Y.S.3d 426, 108 N.E.3d 500 [2018]).  The fact that defendant's clothing only partially fit the description of the clothing the suspect was wearing as transmitted over the radio does not warrant a different conclusion (see People v. Wiley, 209 A.D.2d 361, 618 N.Y.S.2d 798 [1st Dept. 1994], lv denied 85 N.Y.2d 944, 627 N.Y.S.2d 1007, 651 N.E.2d 932 [1995]).  Defendant's discarding of his jacket, from which the police later recovered the gun, constituted an act of abandonment that was not precipitated by police illegality (see People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d 1329 [1979], cert denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383 [1979]).

As to the January 2022 incident, the police lawfully recovered the gun from defendant's car during a valid inventory search after defendant's arrest for an unrelated crime.  The People met their burden of establishing that the officers conducted the search in accordance with established procedure, and that the primary purpose was to protect the officers from dangerous instrumentalities and against unwarranted claims of theft (see People v. Lee, 29 N.Y.3d 1119, 1120, 61 N.Y.S.3d 522, 83 N.E.3d 852 [2017];  People v. Padilla, 21 N.Y.3d 268, 272, 970 N.Y.S.2d 486, 992 N.E.2d 414 [2013], cert denied 571 U.S. 889, 134 S.Ct. 325, 187 L.Ed.2d 158 [2013]).  The fact that the officers knew that contraband might be recovered did not invalidate the search (see Lee, 29 N.Y.3d at 1120, 61 N.Y.S.3d 522, 83 N.E.3d 852).

Defendant has not established that he has standing to challenge New York's gun licensing scheme, or that his conviction is unconstitutional under (New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022]) (see People v. Castillo, 226 A.D.3d 573, 575, 207 N.Y.S.3d 525 [1st Dept. 2024];  People v. Johnson, 225 A.D.3d 453, 455, 206 N.Y.S.3d 584).