PEOPLE v. MCCRAY (2025)

Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J. at motion to controvert search warrant;  Neil E. Ross, J. at plea and sentencing), rendered December 13, 2022, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him to a term of five years, unanimously affirmed.

Defendant's waiver of appeal was not knowing, intelligent and voluntary (see People v. Thomas, 34 N.Y.3d 545, 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]).  At the oral colloquy the court merely asked defendant if he had reviewed and signed the written waiver, and asked him “did you place your signature here to indicate that you've read the document, that you understand the terms of the waiver of right to appeal, and that you're knowingly and voluntarily waiving your right to appeal?”  The court did not ask any further questions that could verify that defendant understood what he was waiving.  The court did not state that the right to appeal is separate and distinct from the trial rights defendant was waiving by taking a guilty plea, and it made no mention of appeal rights that survive a valid waiver.  These errors, taken as a whole, could not be cured by a written waiver (People v. Cisse, 228 A.D.3d 440, 441, 212 N.Y.S.3d 606 [1st Dept. 2024];  see People v. Rochester, ––– A.D.3d ––––, 226 N.Y.S.3d 210, 2025 N.Y. Slip Op. 00640 [1st Dept. 2025];  People v. Amparo, 234 A.D.3d 605, 226 N.Y.S.3d 50, 2025 N.Y. Slip Op. 00389 [1st Dept. 2025]).  However, we find that the court properly denied defendant's motion to controvert the search warrant because the no-knock provision was authorized based on sufficient information supporting the conclusion that defendant might be present with immediate access to firearms when the search warrant was executed (see People v. Brown, 46 A.D.2d 590, 591, 364 N.Y.S.2d 512 [1st Dept. 1975], affd 40 N.Y.2d 183, 386 N.Y.S.2d 359, 352 N.E.2d 545 [1976]).

We have considered and rejected defendant's remaining arguments for affirmative relief.