THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. FLOYD ALSTON DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. FLOYD ALSTON, DEFENDANT–APPELLANT.

KA 09–01249

Decided: December 21, 2012

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ. MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL), FOR RESPONDENT.

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 robbery in the first degree (Penal Law § 160.15[4] ).   We agree with defendant that the record fails to establish that his waiver of the right to appeal was knowing and voluntary (see generally People v. Lopez, 6 NY3d 248, 256).   We conclude that the single reference by Supreme Court to the signed written waiver, i.e., whether defendant understood what he had signed, is not sufficient to establish that defendant understood that he was waiving a right that otherwise would have survived the guilty plea (see People v. Cooper, 19 NY3d 501, 510;  People v. Norton, 96 AD3d 1651, 1651–1652, lv denied 19 NY3d 999).   We therefore conclude that defendant's contention that the court erred in refusing to suppress identification evidence on the ground that the photo array was unduly suggestive is not encompassed by the waiver (see People v. Adger, 83 AD3d 1590, 1591, lv denied 17 NY3d 857).   We further conclude, however, that defendant's contention is without merit.   The court properly determined that the People met their initial burden of establishing that the police conduct with respect to the photo array procedure was reasonable and that defendant failed to meet his ultimate burden of proving that the photo array was unduly suggestive (see People v. Santiago, 96 AD3d 1495, 1496;  see generally People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833).   The subjects depicted in the array were sufficiently similar in appearance so that the viewer's eye was not drawn to a particular photo “ ‘in such a way as to indicate that the police were urging a particular

selection' “ (People v. Weston, 83 AD3d 1511, 1511, lv denied 17 NY3d 823).

Frances E. Cafarell

Clerk of the Court