PEOPLE v. ANDINO (2025)

Judgment, Supreme Court, New York County (Heidi C. Cesare, J. at search warrant;  Felicia A. Mennin, J. at suppression motion and motion to controvert;  Kevin B. McGrath, Jr., J. at plea and sentencing), rendered February 27, 2018, convicting defendant of criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent one year terms, unanimously affirmed.

Defendant's waiver of his right to appeal was invalid because the court did not adequately explain the nature of the appellate rights he was waiving, which were presented in the oral colloquy “as an automatic consequence of the plea” (People v. Francisco, 171 A.D.3d 536, 537, 97 N.Y.S.3d 118 [1st Dept. 2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 686, 130 N.E.3d 1296 [2019]).  As the People concede, the court's “oral explanation could have been understood to suggest that, simply by pleading guilty, defendant was giving up his right to make a Fourth Amendment challenge on appeal” and its limited advisements “did not sufficiently demonstrate to defendant that, he would normally have retained the right to have this Court review” his challenges to the court's decisions in connection with the search warrant “following entry of a guilty plea” (Francisco, 171 A.D.3d at 537, 97 N.Y.S.3d 118).  Additionally, the court did not confirm that defendant understood the written waiver he signed with counsel, “or even that he had read it” (People v. Thorne, 207 A.D.3d 73, 77, 169 N.Y.S.3d 63 [1st Dept. 2022]).

Nevertheless, the court correctly denied defendant's motion to controvert the search warrant and to suppress the evidence seized from the target premises.  Based on our review of the unredacted search warrant affidavit and the confidential informant's testimony, we find that the supporting affidavit clearly established probable cause to search the target premises (see People v. Taylor, 73 N.Y.2d 683, 688, 543 N.Y.S.2d 357, 541 N.E.2d 386 [1989]), and that the search warrant was not based on stale information (see e.g. People v. Floyd, 220 A.D.3d 497, 497, 197 N.Y.S.3d 507 [1st Dept. 2023];  People v. Freeman, 106 A.D.3d 590, 591, 965 N.Y.S.2d 127 [1st Dept. 2013], lv denied 21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147 [2013]).  The warrant was not overbroad nor insufficiently particular (see generally People v. Trulove, 238 A.D.3d 55, 62, 228 N.Y.S.3d 173 [1st Dept. 2025])).  A search warrant limited to a single dwelling apartment is sufficiently particular on its face (see People v. Gramson, 50 A.D.3d 294, 854 N.Y.S.2d 707 [1st Dept. 2008], lv denied 11 N.Y.3d 832, 868 N.Y.S.2d 607, 897 N.E.2d 1091 [2008];  see also People v. Duval, 36 N.Y.3d 384, 391, 141 N.Y.S.3d 439, 165 N.E.3d 209 [2021]), and “there is no merit to defendant's argument that the warrant was required to specify the part of the [apartment] to be searched” (People v. Danclair, 139 A.D.3d 541, 541, 30 N.Y.S.3d 554 [1st Dept. 2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 356, 63 N.E.3d 76 [2016]).

Further, “[a]lthough defendant was not named in the search warrant,” we find that the “common sense inferences to be drawn from his occupancy of a place of drug trafficking provided probable cause to believe that defendant was a participant in the drug operation conducted out of the apartment” (People v. Henderson, 162 A.D.3d 517, 517, 79 N.Y.S.3d 131 [1st Dept. 2018], lv denied 32 N.Y.3d 1111, 91 N.Y.S.3d 363, 115 N.E.3d 635 [2018] [internal citations omitted];  see also People v. Bundy, 90 N.Y.2d 918, 920, 663 N.Y.S.2d 837, 686 N.E.2d 496 [1997]).  Thus, the court also “properly denied defendant's motion to suppress contraband recovered from his person” (People v. Jackson, 44 A.D.3d 364, 364, 845 N.Y.S.2d 224 [1st Dept. 2007], lv denied 9 N.Y.3d 991, 848 N.Y.S.2d 608, 878 N.E.2d 1024 [2007]).

Defendant's “generalized challenge[s]” to the search warrant in the motions filed failed to preserve the remaining arguments he made on appeal (People v. Williams, 127 A.D.3d 612, 612, 8 N.Y.S.3d 133 [1st Dept. 2015], lv denied 27 N.Y.3d 1009, 38 N.Y.S.3d 118, 59 N.E.3d 1230 [2016];  see also People v. Graham, 25 N.Y.3d 994, 997, 10 N.Y.S.3d 172, 32 N.E.3d 387 [2015]), which were also not “expressly decided” by the motion court (CPL 470.05[2];  see also People v. Vasquez–Mendez, 115 A.D.3d 593, 593, 982 N.Y.S.2d 317 [1st Dept. 2014], lv denied 23 N.Y.3d 1026, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014]).  We decline to review defendant's unpreserved claims in the interest of justice.  As an alternative holding, we find them to be unavailing.