PEOPLE v. MONTERO (2021)

Judgment, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered May 6, 2015, convicting defendant, upon his plea of guilty, of criminal sale of a firearm in the third degree, and sentencing him to a term of five years, unanimously affirmed.

We do not find that defendant made a valid waiver of his right to appeal.  The court's colloquy with defendant contained misleading language about the absence of “meaningful” appellate issues, indicating that any appeal would be fruitless.

However, the court properly denied defendant's suppression motion.  Defendant does not dispute that there was probable cause to issue an eavesdropping warrant for his cell phone, and the record supports the court's conclusion that there was probable cause to issue two warrant extensions (see People v. Tambe, 71 N.Y.2d 492, 500, 527 N.Y.S.2d 372, 522 N.E.2d 448 [1988]).  An investigator submitted affidavits explaining that based on his training and experience, he concluded that defendant was using certain code words to refer to handguns, their operability, and ammunition.  Defendant also used the terms Cobray, Anaconda, and Springfield, all of which refer to firearm manufacturers or models, and the initial application, which was undisputedly supported by probable cause, cited numerous conversations with a codefendant who had sold a Cobray pistol, among other weapons, to an undercover officer.  While some conversations or terms viewed in isolation might seem innocent, “[t]he totality of information before the issuing Justice permitted a reasonable commonsense interpretation that the conversations ․ summarized, including those in code ․, involved illegal business and permitted the further inference that law enforcement officials were likely to garner evidence concerning such activities from the electronic surveillance of defendant's cell phone” (People v. DiNapoli, 260 A.D.2d 235, 236, 687 N.Y.S.2d 629 [1st Dept. 1999]).

Defendant's excessive sentence claim is moot because he has completed his entire sentence, including postrelease supervision.