PEOPLE v. THOMAS (2025)

Judgment, Supreme Court, Bronx County (Tara A. Collins, J. at suppression hearing;  Albert Lorenzo, J. at plea and sentencing), rendered September 6, 2022, convicting defendant of attempted criminal possession of a weapon in the second degree under indictment No. 1516/19, and sentencing him to a term of two years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed at sentencing, and otherwise affirmed.  Appeal from judgment, same court (Lorenzo, J. at plea and sentencing), rendered September 6, 2022, convicting defendant of criminal possession of a firearm under indictment No. 1122/21, and sentencing him to a concurrent term of 364 days, unanimously dismissed, as abandoned.

Defendant knowingly, intelligently, and voluntarily waived his right to appeal (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]).  “Neither the execution of the written waiver of the right to appeal at the beginning of the plea proceeding, nor the court's colloquy about the waiver after defendant's allocution, rendered his waiver of his right to appeal invalid” (People v. Jessamy, 237 A.D.3d 619, 230 N.Y.S.3d 259 [1st Dept. 2025];  see People v. Brown, 228 A.D.3d 465, 211 N.Y.S.3d 372 [1st Dept. 2024], lv denied 42 N.Y.3d 1019, 221 N.Y.S.3d 480, 246 N.E.3d 923 [2024]).  The record demonstrates that defendant had a full appreciation of the waiver and its consequences, and that the waiver was voluntary, under “the totality of the circumstances” (Thomas, 34 N.Y.3d at 559, 122 N.Y.S.3d 226, 144 N.E.3d 970).

Defendant's voluntary waiver of appeal forecloses review of his challenge to the court's suppression order in indictment No. 1516/19. Even assuming the waiver was invalid, we find that the court properly denied defendant's suppression motion.  There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977]).  The hearing court had the unique opportunity to see and hear the police officer's testimony, which included a courtroom demonstration of the manner in which the officer saw defendant holding the bag with the gun inside (see People v. Garcia, 242 A.D.2d 427, 427, 662 N.Y.S.2d 34 [1st Dept. 1997], lv denied 90 N.Y.2d 1011, 666 N.Y.S.2d 106, 688 N.E.2d 1389 [1997]).

Further, when defendant abandoned the gun by throwing the bag with it inside, over the fence behind him as police approached him, “the abandonment was ‘not precipitated by unlawful police activity’ ” (People v. Jiminez, 147 A.D.3d 496, 497, 47 N.Y.S.3d 287 [1st Dept. 2017], lv denied 29 N.Y.3d 1081, 64 N.Y.S.3d 171, 86 N.E.3d 258 [2017], quoting People v. Ramirez–Portoreal, 88 N.Y.2d 99, 110, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996]).  At the point when defendant abandoned the gun, the plain clothes officers had done nothing more than greet him with, “hello, police,” and walk toward him, without drawing their guns, as he stood on the sidewalk (see e.g. People v. Bora, 83 N.Y.2d 531, 535–536, 611 N.Y.S.2d 796, 634 N.E.2d 168 [1994];  People v. Grunwald, 29 A.D.3d 33, 38, 810 N.Y.S.2d 437 [1st Dept. 2006], lv denied 6 N.Y.3d 848, 816 N.Y.S.2d 754, 849 N.E.2d 977 [2006]).

Based on our own interest of justice powers, we vacate the mandatory surcharge and fees imposed on defendant at sentencing in indictment No. 1516/19 (see People v. Chirinos, 190 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021]).  We note that the People do not oppose this relief.