Supreme Court, Appellate Division, Second Department, New York.
The PEOPLE, etc., respondent, v. Michael J. FAHEY, appellant.
Decided: December 22, 2021
MARK C. DILLON, J.P., BETSY BARROS, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
Andrew E. MacAskill, Garden City, NY, for appellant. Joyce A. Smith, Acting District Attorney, Mineola, NY (Cristin N. Connell of counsel; Matthew C. Frankel on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Teresa K. Corrigan, J.), rendered September 6, 2018, convicting him of rape in the first degree and course of sexual conduct against a child in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
Considering the totality of the circumstances, including the defendant's relatively limited experience with the criminal justice system, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived the right to appeal (see People v. Adyl K., 187 A.D.3d 1208, 1209, 131 N.Y.S.3d 642; People v. Zaffuto, 138 A.D.3d 1156, 1156–1157, 28 N.Y.S.3d 897). The Supreme Court's terse oral colloquy with the defendant concerning the waiver failed to advise him that the right to appeal is separate and distinct from other rights that are automatically waived in connection with taking a plea bargain, and that a waiver of the right to appeal was not an absolute bar to the taking of an appeal (see People v. Seymour, 189 A.D.3d 1269, 1270, 134 N.Y.S.3d 211; People v. Cruz, 177 A.D.3d 766, 767, 110 N.Y.S.3d 312). Moreover, the written waiver of appeal form signed by the defendant did not overcome these deficiencies in the court's explanation, as it did not contain language clarifying these matters (see People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970; People v. Brown, 195 A.D.3d 943, 146 N.Y.S.3d 514). As such, appellate review of the denial of that branch of the defendant's motion which was to suppress his statements to law enforcement officials is not precluded (see People v. Garcia, 189 A.D.3d 879, 881, 137 N.Y.S.3d 136).
The Supreme Court properly denied suppression of the statements the defendant made to law enforcement officials, as the record does not support his contention that those statements were the result of an interrogation which created a substantial risk that he might falsely incriminate himself (see People v. Thomas, 22 N.Y.3d 629, 641–642, 985 N.Y.S.2d 193, 8 N.E.3d 308; People v. Smith, 193 A.D.3d 770, 771, 141 N.Y.S.3d 869).
DILLON, J.P., BARROS, WOOTEN and ZAYAS, JJ., concur.
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