PEOPLE v. AUSTIN (2022)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). As an initial matter, we conclude that defendant's waiver of the right to appeal is invalid inasmuch as both the written waiver signed by defendant and County Court's oral waiver colloquy mischaracterized the nature of the right to appeal (see People v. Thomas, 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020]; People v. Jones, 186 A.D.3d 1069, 1070, 127 N.Y.S.3d 361 [4th Dept. 2020]).

Defendant's contention that his right to due process was violated by the court's in camera review of the search warrant application is unpreserved for our review because defendant never objected to the in camera review on that ground (see CPL 470.05 [2]; see generally People v. Jackson, 203 A.D.3d 1680, 1682, 164 N.Y.S.3d 352 [4th Dept. 2022]; People v. Resto, 147 A.D.3d 1331, 1331-1332, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017]), and we decline to exercise our power to reach that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

We reject defendant's contention that the court erred in refusing to suppress evidence obtained pursuant to search warrants for defendant and his apartment. The court properly concluded that the warrants were based on probable cause, inasmuch as they were “based on[, inter alia,] firsthand information from the officer who conducted the monitored, controlled drug buy ․ with a confidential informant, thereby establishing the informant's reliability” (People v. Long, 100 A.D.3d 1343, 1346, 953 N.Y.S.2d 744 [4th Dept. 2012], lv denied 20 N.Y.3d 1063, 962 N.Y.S.2d 613, 985 N.E.2d 923 [2013] [internal quotation marks omitted]). Further, the court “properly relied on the ability of [the issuing court] to assess the credibility of the confidential informant” (People v. Demus, 82 A.D.3d 1667, 1667, 919 N.Y.S.2d 664 [4th Dept. 2011], lv denied 17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95 [2011]; see Long, 100 A.D.3d at 1346, 953 N.Y.S.2d 744).

Contrary to defendant's further contention, we conclude that the bargained-for sentence is not unduly harsh or severe. Finally, we note that the court misstated at sentencing that defendant was being sentenced as a second felony offender, rather than as a second felony drug offender (see Penal Law § 70.71 [1] [b]; see generally People v. Manners, 196 A.D.3d 1125, 1127, 149 N.Y.S.3d 743 [4th Dept. 2021], lv denied 37 N.Y.3d 1028, 153 N.Y.S.3d 427, 175 N.E.3d 452 [2021]). Consequently, the certificate of disposition must be amended to reflect that defendant was sentenced as a second felony drug offender (see Manners, 196 A.D.3d at 1127, 149 N.Y.S.3d 743).