PEOPLE v. SMITH (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 a plea of guilty of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]). We agree with defendant that County Court incorrectly characterized the waiver of the right to appeal as an absolute bar to the taking of an appeal, and we therefore conclude that the colloquy was insufficient to ensure that defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 564-567, 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]).

Nevertheless, we reject defendant's further contention that the court erred in summarily denying that part of his omnibus motion seeking to suppress, as the products of an unlawful search and seizure, a silver handgun and a backpack that defendant and a codefendant discarded while fleeing from the police. It is well settled that a motion to suppress evidence on such a ground may be summarily denied if defendant does not allege a proper legal basis for suppression or if the “sworn allegations of fact do not as a matter of law support the ground alleged” (CPL 710.60 [3] [b]; see People v. Mendoza, 82 N.Y.2d 415, 421, 604 N.Y.S.2d 922, 624 N.E.2d 1017 [1993]). “Hearings are not automatic or generally available for the asking by boilerplate allegations. Rather, ․ factual sufficiency [is to] be determined with reference to the face of the pleadings, the context of the motion and defendant's access to information” (Mendoza, 82 N.Y.2d at 422, 604 N.Y.S.2d 922, 624 N.E.2d 1017; see People v. Jones, 95 N.Y.2d 721, 725, 723 N.Y.S.2d 761, 746 N.E.2d 1053 [2001]).

Here, the allegations in defendant's moving papers are insufficient to warrant a hearing. The information that the People provided to the defense established that a police officer, who was already present at a location due to an unrelated earlier incident, observed defendant and another man jumping over a fence while running toward the officer. When defendant saw the officer, he jumped back over the fence and ran the other way. Immediately thereafter, the officer heard a radio report of a robbery that had just occurred at the location from which defendant was first seen running. It is well settled that “a ‘defendant's flight may be considered in conjunction with other attendant circumstances’ in determining whether reasonable suspicion justifying a seizure exists” (People v. Pines, 99 N.Y.2d 525, 527, 752 N.Y.S.2d 266, 782 N.E.2d 62 [2002], quoting People v. Martinez, 80 N.Y.2d 444, 448, 591 N.Y.S.2d 823, 606 N.E.2d 951 [1992]). Consequently, the officer's observations and the radio report provided “reasonable suspicion that defendant may have been engaged in criminal activity justifying police pursuit” (People v. Cruz, 14 A.D.3d 730, 732, 786 N.Y.S.2d 848 [3d Dept. 2005], lv denied 4 N.Y.3d 852, 797 N.Y.S.2d 427, 830 N.E.2d 326 [2005]). Defendant's abandonment of a weapon during that pursuit provided the police with probable cause to arrest him (see People v. Wilson, 5 A.D.3d 408, 409, 773 N.Y.S.2d 95 [2d Dept. 2004], lv denied 2 N.Y.3d 809, 781 N.Y.S.2d 308, 814 N.E.2d 480 [2004]). In his moving papers, however, defendant merely alleged that he was of a different race than the description of one of the perpetrators that the victim provided in the initial robbery report. The racial characteristics of the perpetrators were not relied upon by the officers who pursued and stopped defendant, thus defendant's allegations did not contravene any of the information possessed by the officers. Therefore, in his moving papers, defendant failed to “raise a factual dispute on a material point which must be resolved before the court [could] decide the legal issue” (People v. White, 192 A.D.3d 1539, 1539, 140 N.Y.S.3d 843 [4th Dept. 2021] [internal quotation marks omitted]; see Mendoza, 82 N.Y.2d at 422, 604 N.Y.S.2d 922, 624 N.E.2d 1017; People v. Davis, 142 A.D.3d 1387, 1387, 38 N.Y.S.3d 359 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017]).