PEOPLE v. WHITE (2024)

Judgment, Supreme Court, New York County (Ericka Edwards, J., at suppression hearing;  Althea Drysdale, J., at plea and sentencing), rendered October 7, 2019, convicting defendant of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

The indictment was not jurisdictionally defective.  “The incorporation by specific reference to the statute” of the charged crime “operates without more to constitute allegations of all the elements of the crime” (People v. D'Angelo, 98 N.Y.2d 733, 735, 750 N.Y.S.2d 811, 780 N.E.2d 496 [2002];  People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 [1988];  People v. Parrilla, 145 A.D.3d 629, 42 N.Y.S.3d 825 [1st Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017]).  Here, the indictment identified the “specified offense” (Penal Law § 140.20) that defendant was alleged to have committed and mirrored the statutory language.  There was no nonwaivable defect, and by his plea of guilty, defendant waived any nonjurisdictional claim that the indictment failed to include sufficient allegations to provide him with notice of the charges (see People v. Iannone, 45 N.Y.2d 589, 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978]).

Defendant knowingly, intelligently, and voluntarily waived his right to appeal as a condition of his negotiated plea (see People v. Thomas, 34 N.Y.3d 545, 557–563, 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]).  In its oral colloquy, the court explained that even though defendant was pleading guilty, he “would normally have the right to appeal” his conviction, but that he had been “offered a beneficial plea” that was conditioned on his “giving up [his] right to appeal.”  Even if there had been any ambiguity in the oral colloquy, defendant executed a detailed written waiver of his appellate rights (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006]).

Regardless of whether defendant validly waived his right to appeal, the suppression court providently denied suppression of his statements.  Although the court found that there was a violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the record supports the court's determination that defendant's videotaped statement was attenuated from any illegality (See People v. Harris, 77 N.Y.2d 434, 568 N.Y.S.2d 702, 570 N.E.2d 1051 [1991]).  There was an interval of 4 hours and 45 minutes between defendant's arrest in the Bronx by an Amtrak investigator for burglaries in Penn Station and the interrogation by a prosecutor, which was conducted at the District Attorney's Office after Miranda warnings were given (see People v. Fashaw, 134 A.D.3d 490, 491, 21 N.Y.S.3d 235 [1st Dept. 2015], lv denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016]).  During that time, defendant was separately arrested by an NYPD detective for a burglary that occurred in Grand Central Terminal on a different date, an intervening circumstance that supported a finding of attenuation (see People v. Jones, 21 N.Y.3d 449, 455–456, 971 N.Y.S.2d 740, 994 N.E.2d 831 [2013]).  Further, both arrests were supported by probable cause based on the viewing of surveillance footage of the Penn Station and Grand Central burglaries by the respective officers (see People v. Clarkson, 292 A.D.2d 207, 208, 738 N.Y.S.2d 570 [1st Dept. 2002]).  The record also supports the court's finding that although the officer made an unlawful entry, there was no flagrant misconduct because the officer gave defendant time to wake up, get dressed, and put away his belongings, and did not conduct a search of his room for contraband or evidence (see People v. Bradford, 15 N.Y.3d 329, 333–334, 910 N.Y.S.2d 771, 937 N.E.2d 528 [2010]).