PEOPLE v. LITTLETON (2009)

 Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ).   We agree with defendant that his waiver of the right to appeal was invalid.   County Court's brief reference to the waiver of the right to appeal during the plea colloquy was insufficient to establish that the waiver was a knowing and voluntary choice (see People v. Thousand, 41 A.D.3d 1272, 836 N.Y.S.2d 467, lv. denied 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901;  People v. Van Every, 1 A.D.3d 977, 978, 767 N.Y.S.2d 176, lv. denied 1 N.Y.3d 602, 776 N.Y.S.2d 233, 234, 808 N.E.2d 369, 370).   Although the further contention of defendant that the court erred in refusing to suppress the handgun seized from his truck and the cocaine seized from his house is therefore properly before us (cf. People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754), we nevertheless reject that contention.

 With respect to the handgun, the evidence at the suppression hearing established that, while on routine patrol in the area of defendant's house, the police observed defendant remove the handgun from his waistband and place it in his truck.   We conclude that the police thus had, at a minimum, reasonable suspicion to believe that defendant unlawfully possessed a weapon and that their “investigative detention [of defendant was not] unreasonable” (People v. Hicks, 68 N.Y.2d 234, 241, 508 N.Y.S.2d 163, 500 N.E.2d 861;  see generally People v. Allen, 73 N.Y.2d 378, 379-380, 540 N.Y.S.2d 971, 538 N.E.2d 323).   They also were justified in looking through the window of the truck (see People v. Tillery, 60 A.D.3d 1203, 875 N.Y.S.2d 343;  People v. Speicher, 244 A.D.2d 833, 834, 665 N.Y.S.2d 724) and, upon observing the top of a handgun in the door pocket, they properly seized the handgun as contraband or the instrumentality of a crime (see People v. Belton, 55 N.Y.2d 49, 54-55, 447 N.Y.S.2d 873, 432 N.E.2d 745, rearg. denied 56 N.Y.2d 646, 450 N.Y.S.2d 1026, 436 N.E.2d 196;  People v. Delarosa, 28 A.D.3d 1186, 813 N.Y.S.2d 610, lv. denied 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802).

 With respect to the cocaine, we reject the contention of defendant that the consent to search his house obtained from a witness was invalid.   The People met their burden of establishing that the police reasonably believed that the witness had the requisite authority to consent to the search of defendant's house (see People v. Gonzalez, 88 N.Y.2d 289, 295, 644 N.Y.S.2d 673, 667 N.E.2d 323;  People v. Adams, 53 N.Y.2d 1, 9-10, 439 N.Y.S.2d 877, 422 N.E.2d 537, rearg. denied 54 N.Y.2d 832, 443 N.Y.S.2d 1031, 427 N.E.2d 1192, cert. denied 454 U.S. 854, 102 S.Ct. 301, 70 L.Ed.2d 148).   The evidence at the suppression hearing established that the witness exited defendant's house when she observed the police outside and that her children were inside the house.   In addition, she told the police that she and the children lived with defendant in the house and that she and defendant shared the bedroom in which the cocaine was found.

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

MEMORANDUM: