PEOPLE v. GOVAN (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]). In appeal Nos. 2 and 3, defendant appeals by permission of this Court from orders denying his motions pursuant to CPL 440.10 to vacate the judgment in appeal No. 1.

In his pro se supplemental brief, defendant contends in appeal No. 1 that the waiver of the right to appeal was not made knowingly, intelligently, and voluntarily and, in his main brief, he contends in appeal No. 1 that the waiver does not encompass any suppression issues because Supreme Court stated that defendant was waiving “certain” motions or suppression decisions, thus implying that some suppression decisions survived the waiver. Even assuming, arguendo, that the waiver of the right to appeal is invalid (see People v. Spratt, 239 A.D.3d 1325, 1325, 232 N.Y.S.3d 850 [4th Dept. 2025], lv denied 44 N.Y.3d 984, 241 N.Y.S.3d 154, 267 N.E.3d 1223 [2025]) and therefore does not encompass defendant's challenges in his main and pro se supplemental briefs in appeal No. 1 to the court's suppression rulings, we conclude, for the following reasons, that those challenges are without merit.

Defendant contends in his main and pro se supplemental briefs that the People failed to meet their burden of establishing the lack of undue suggestiveness in the photo array procedure inasmuch as defendant was the only person in jail clothing. We reject that contention. Defendant wore a green and white striped shirt that was visible on only one shoulder, and there were no markings on the shirt to indicate that it was a jail uniform. As the court noted, a witness looking at defendant's photograph would not necessarily conclude that he was wearing jail garb. The photographs in the array depicted men similar in age, race, hairstyles, and physical features (see People v. Mead, 41 A.D.3d 1306, 1307, 838 N.Y.S.2d 303 [4th Dept. 2007], lv denied 9 N.Y.3d 963, 848 N.Y.S.2d 31, 878 N.E.2d 615 [2007]). Because “the subjects depicted in the photo array [were] sufficiently similar in appearance so that the viewer's attention [was] not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection,” the photo array itself was not unduly suggestive (People v. Quinones, 5 A.D.3d 1093, 1093, 773 N.Y.S.2d 671 [4th Dept. 2004], lv denied 3 N.Y.3d 646, 782 N.Y.S.2d 417, 816 N.E.2d 207 [2004]; see People v. Holmes, 210 A.D.3d 1510, 1511, 178 N.Y.S.3d 357 [4th Dept. 2022], lv denied 39 N.Y.3d 1073, 204 N.E.3d 445, 204 N.E.3d 445 [2023]; People v. Powell, 26 A.D.3d 795, 795, 810 N.Y.S.2d 266 [4th Dept. 2006], lv denied 7 N.Y.3d 793, 821 N.Y.S.2d 823, 854 N.E.2d 1287 [2006]).

Defendant failed to preserve for our review his further contention in his pro se supplemental brief that the procedure used by the police in presenting the photo array was unduly suggestive (see People v. Lundy, 165 A.D.3d 1626, 1627, 85 N.Y.S.3d 665 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 588, 121 N.E.3d 215 [2019]; People v. VanVleet, 140 A.D.3d 1633, 1634, 34 N.Y.S.3d 274 [4th Dept. 2016], lv denied 28 N.Y.3d 938, 40 N.Y.S.3d 365, 63 N.E.3d 85 [2016]). In any event, contrary to defendant's contention, the police employed a “blind or blinded” procedure inasmuch as one investigator prepared the photo array and a second investigator, who did not know which person in the array was the suspect or where the suspect was in the array, administered the photo array (see CPL 60.25 [1] [c] [i], [ii]; People v. Moss, 232 A.D.3d 1327, 1327-1328, 222 N.Y.S.3d 270 [4th Dept. 2024]; People v. Tyme, 222 A.D.3d 783, 784, 202 N.Y.S.3d 234 [2d Dept. 2023], lv denied 41 N.Y.3d 944, 206 N.Y.S.3d 259, 229 N.E.3d 1152 [2024]). Although the second investigator had viewed a surveillance video depicting the crime prior to the photo array identification procedure, he testified that the video did not have enough clarity for him to identify the suspect.

We reject defendant's further contention in his pro se supplemental brief that his statements should have been suppressed as a result of his intoxication. Defendant preserved his contention for our review only with respect to statements he made to the arresting officers and not the investigator who conducted the interview with defendant. In any event, we conclude that defendant did not provide a factual record sufficient to enable us to review his contention inasmuch as the body-worn camera footage of the two arresting officers, which was admitted in evidence at the suppression hearing and reviewed by the court, was not provided to this Court (see People v. Brady, 192 A.D.3d 1557, 1558-1559, 140 N.Y.S.3d 846 [4th Dept. 2021], lv denied 37 N.Y.3d 954, 147 N.Y.S.3d 522, 170 N.E.3d 396 [2021]; People v. Smith, 93 A.D.3d 1345, 1346, 940 N.Y.S.2d 768 [4th Dept. 2012], lv denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217 [2012]; see generally People v. Kinchen, 60 N.Y.2d 772, 773-774, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983]). Based only on the testimony from the officers, we agree with the court that defendant was not intoxicated to a degree of mania or of being unable to understand the meaning of his statements (see People v. Mineccia, 185 A.D.3d 1407, 1408, 128 N.Y.S.3d 105 [4th Dept. 2020]; People v. Iddings, 23 A.D.3d 1132, 1133, 805 N.Y.S.2d 210 [4th Dept. 2005], lv denied 6 N.Y.3d 776, 811 N.Y.S.2d 343, 844 N.E.2d 798 [2006]).

We also reject defendant's contention in his pro se supplemental brief that the court erred in refusing to suppress physical evidence without conducting a hearing on the legality of the arrest. A motion to suppress may be summarily denied if the motion papers do not allege a ground constituting a legal basis for the motion, or the sworn allegations of fact do not as a matter of law support the ground alleged (see CPL 710.60 [3] [a], [b]; People v. Collier, 238 A.D.3d 1530, 1531, 233 N.Y.S.3d 872 [4th Dept. 2025], lv denied 44 N.Y.3d 981, 241 N.Y.S.3d 148, 267 N.E.3d 1217 [2025]). Here, the court did not abuse its discretion in denying, without an evidentiary hearing, that part of defendant's omnibus motion seeking to suppress a gun recovered after defendant discarded it in a park (see Collier, 238 A.D.3d at 1531, 233 N.Y.S.3d 872).

Defendant next contends in his pro se supplemental brief in appeal No. 1 that he was denied the right to testify before the grand jury. Assuming again, arguendo, that the waiver of the right to appeal is invalid (see Spratt, 239 A.D.3d at 1325, 232 N.Y.S.3d 850), we conclude that defendant's contention is forfeited by his plea of guilty (see People v. Goodwin, 238 A.D.3d 1333, 1334-1335, 234 N.Y.S.3d 651 [3d Dept. 2025], lv denied 43 N.Y.3d 1055, 239 N.Y.S.3d 110, 265 N.E.3d 1127 [2025]; People v. Lafferty, 227 A.D.3d 1480, 1481-1482, 210 N.Y.S.3d 596 [4th Dept. 2024], lv denied 42 N.Y.3d 928, 216 N.Y.S.3d 119, 240 N.E.3d 838 [2024], reconsideration denied 42 N.Y.3d 1036, 223 N.Y.S.3d 600, 248 N.E.3d 760 [2024]; People v. Escalera, 121 A.D.3d 1519, 1520, 993 N.Y.S.2d 605 [4th Dept. 2014], lv denied 24 N.Y.3d 1083, 1 N.Y.S.3d 10, 25 N.E.3d 347 [2014]).

We reject defendant's contention in his main and pro se supplemental briefs in appeal No. 2 that the court erred in summarily denying his first CPL 440.10 motion seeking to vacate the judgment on the ground that his guilty plea was not knowingly, voluntarily, and intelligently entered because defense counsel coerced him into pleading guilty. Defendant's “unsupported, self-serving assertions ․ are contradicted by the transcript of the plea proceeding, at which defendant indicated that he agreed to plead guilty of his own free will and that no one had coerced him to enter the plea” (People v. Witkop, 114 A.D.3d 1242, 1243, 980 N.Y.S.2d 674 [4th Dept. 2014], lv denied 23 N.Y.3d 1069, 994 N.Y.S.2d 328, 18 N.E.3d 1149 [2014]; see CPL 440.30 [4] [d] [i]). Under these circumstances and considering defendant's further statements during the plea colloquy, we conclude that there is no reasonable possibility that the allegation is true (see CPL 440.30 [4] [d] [ii]; People v. McCullough, 144 A.D.3d 1526, 1527-1528, 40 N.Y.S.3d 855 [4th Dept. 2016], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017]; People v. Atkins, 107 A.D.3d 1465, 1466, 967 N.Y.S.2d 318 [4th Dept. 2013], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 [2013]). The court therefore properly denied defendant's first CPL 440.10 motion without a hearing because “the motion could be determined on the trial record and defendant's submissions on the motion” (People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834 [1985]).

Finally, we have reviewed defendant's remaining contentions raised in his pro se supplemental brief with respect to appeal Nos. 2 and 3 and conclude that they do not warrant modification or reversal of the orders.