PEOPLE v. ROCHESTER (2025)

Judgment, Supreme Court, New York County (Patricia J. Nunez, J., at suppression hearing;  Maxwell Wiley, J., at plea and sentencing), rendered January 13, 2016, convicting defendant of attempted burglary in the second degree, and sentencing him to a term of two years, unanimously affirmed.

Defendant did not validly waive his right to appeal.  The court's oral colloquy, even considered in light of the written waiver, did not establish that defendant had a “full appreciation of the consequences” of the waiver (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] [internal quotation marks omitted]).  The court did not make clear that the right to appeal is separate and distinct from the trial rights defendant was waiving by pleading guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]), and insufficiently apprised defendant that a waiver of the right to appeal is “not an absolute bar to direct appeal and that some issues are nonwaivable” (People v. Cisse, 228 A.D.3d 440, 441, 212 N.Y.S.3d 606 [1st Dept. 2024]).

On the merits, the court properly determined that defendant's statement at the precinct following administration of Miranda warnings, more than three hours after his last inadmissible statement, was sufficiently attenuated from his earlier statements to be admissible (see People v. Paulman, 5 N.Y.3d 122, 130–131, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005];  People v. Samuels, 11 A.D.3d 372, 372, 784 N.Y.S.2d 36 [1st Dept. 2004], lv denied 4 N.Y.3d 802, 795 N.Y.S.2d 178, 828 N.E.2d 94 [2005]).  Defendant's post-Miranda statement was made at a different location, and to a different officer, than his earlier statements.  Further, “the circumstances surrounding the Miranda violation” (Paulman, 5 N.Y.3d at 130, 800 N.Y.S.2d 96, 833 N.E.2d 239), in which the officer asked defendant a handful of questions in a nonthreatening manner, were not of the sort to indelibly taint any subsequent statement.