PEOPLE v. MELENDEZ (2025)

Judgment, Supreme Court, Bronx County (Denise Dominguez, J., on search warrant application;  Alberto Lorenzo, J., at plea and sentencing), rendered May 1, 2017, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him to a term of probation of three years, unanimously affirmed.  Purported appeal from forfeiture agreement, unanimously dismissed, as taken from a nonappealable paper.

Defendant's waiver of his right to appeal was invalid because the court never advised defendant of the consequences of the appeal waiver, explained that the right to appeal was separate and distinct from the rights automatically waived by a guilty plea, or confirmed that defendant understood the rights that he was waiving by signing the written waiver (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011]).  Nevertheless, we find that the court properly denied defendant's suppression motion, as the property seized was recovered pursuant to a search warrant issued on probable cause (see People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985]).  Defendant's claim that the court should have conducted a Darden hearing is unpreserved and unavailing because defendant did not contest the existence of the confidential informant or the accuracy of the police testimony supporting the warrant.  Defendant's challenge to the protective order is also unpreserved and unavailing because the court issued the protective order on good cause to protect the confidential informant (see People v. Davis, 144 A.D.3d 1188, 1190, 41 N.Y.S.3d 160 [3d Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017]).

Defendant's challenges to his voluntary agreement to forfeit $6,982 seized from his apartment pursuant to a valid search warrant are not properly before this Court because the forfeiture was not part of the judgment of conviction (compare People v. Abruzzese, 30 A.D.3d 219, 220, 816 N.Y.S.2d 464 [1st Dept. 2006], lv denied 7 N.Y.3d 784, 821 N.Y.S.2d 814, 854 N.E.2d 1278 [2006], with People v. Detres–Perez, 127 A.D.3d 535, 5 N.Y.S.3d 729 [1st Dept. 2015], lv denied 25 N.Y.3d 1162, 15 N.Y.S.3d 294, 36 N.E.3d 97 [2015]).  The court did not order any forfeiture, and the agreement was not part of the sentence (cf.  People v. Burgos, 129 A.D.3d 627, 627–628, 13 N.Y.S.3d 350 [1st Dept. 2015], lv denied 26 N.Y.3d 1038, 22 N.Y.S.3d 168, 43 N.E.3d 378 [2015]).  Rather, the forfeiture was “based on a voluntary settlement of a potential, separate civil proceeding, which would be governed by the CPLR” (People v. Lewis, 222 A.D.3d 600, 600–601, 200 N.Y.S.3d 19 [1st Dept. 2023], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 316, 237 N.E.3d 1255 [2024];  Abruzzese, 30 A.D.3d at 220, 816 N.Y.S.2d 464).  Were we not dismissing this aspect of the appeal, we would affirm on the ground of defendant's valid waiver of his right to raise any appellate challenge to the forfeiture agreement (see People v. Sanchez, 223 A.D.3d 482, 483, 203 N.Y.S.3d 280 [1st Dept. 2024], lv denied 41 N.Y.3d 1020, 214 N.Y.S.3d 307, 237 N.E.3d 1247 [2024];  Abruzzese, 30 A.D.3d at 220, 816 N.Y.S.2d 464).  In any event, defendant's claims are unpreserved (see Burgos, 129 A.D.3d at 628, 13 N.Y.S.3d 350), and we decline to review them in the interest of justice.