PEOPLE v. DOUGLAS (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered November 10, 2022, convicting him of attempted criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence.  The appeal brings up for review the denial, without a hearing (Matthew A Sciarrino, Jr., J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the record fails to establish that the defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344;  People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022).  The appeal waiver was not mentioned at the beginning of the plea proceeding.  Rather, it was not until after the defendant already had admitted to the facts of the crime that the Supreme Court mentioned the waiver.  At that point, the court asked defense counsel if he had “looked at” the written waiver of the right to appeal.  Defense counsel replied that he had not.  Then, after a pause in the proceedings, defense counsel stated, “We have reviewed it.”  Thus, the waiver of the right to appeal appears to have been an “after-the-fact additional demand asserted after the bargain had already been struck” (People v. Williams, 235 A.D.3d 1017, 1018, 228 N.Y.S.3d 323 [internal quotation marks omitted]).  Accordingly, the record fails to establish that the defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Sanders, 25 N.Y.3d at 340, 12 N.Y.S.3d 593, 34 N.E.3d 344).

However, that branch of the defendant's omnibus motion which was to suppress physical evidence was properly denied without a hearing (see CPL 710.60[3];  People v. Ibarguen, 37 N.Y.3d 1107, 1108, 157 N.Y.S.3d 252, 178 N.E.3d 917) since the warrantless search of the defendant's home by his parole officer was consented to by the defendant as part of his parole conditions and was reasonably related to the performance of the parole officer's duties (see People v. Moses, 177 A.D.3d 619, 621, 113 N.Y.S.3d 267;  People v. Purnell, 166 A.D.3d 814, 815, 88 N.Y.S.3d 86).  The defendant's contentions to the contrary are based upon speculation.

BARROS, J.P., WARHIT, LANDICINO and LOVE, JJ., concur.