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People v Blue 2024 NY Slip Op 05175 [42 NY3d 584] October 22, 2024 Halligan, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Anthony Blue, Appellant. Argued September 10, 2024; decided October 22, 2024 People v Blue , 202 AD3d 546 , affirmed. {**42 NY3d at 587} OPINION OF THE COURT Halligan, J. Defendant Anthony Blue challenges his criminal conviction for five counts of second-degree burglary. Blue argues that a criminal defendant cannot make a knowing, voluntary, and intelligent waiver of the right to counsel unless the trial judge specifically apprises the defendant of his maximum sentencing exposure in years. Rather than imposing a bright-line rule such as this, we have said that a court must ensure a defendant is adequately warned of the dangers and disadvantages of {**42 NY3d at 588} self-representation before allowing him to proceed pro se. A review of the record here confirms that Blue had such an understanding at the time he waived his right to counsel. Blue also argues that his indictment should have been dismissed on statutory speedy-trial grounds. CPL 30.30 (4) (d), broadly speaking, excludes from the time chargeable to the People a reasonable period of delay when a defendant is joined for trial with a codefendant. Blue contends this provision does not apply to prearraignment time, but the Appellate Division correctly concluded that it does. Thus the 57 days between indictment and arraignment chargeable to Blue's codefendant were also chargeable to Blue, even though he had not yet been arraigned. For these reasons, we affirm the order of the Appellate Division. I. We recount only the facts essential to the issues before us. On March 25, 2013, a grand jury returned a single indictment charging Blue and his codefendant Carnona Puello with six counts of second-degree burglary ( see Penal Law § 140.25 [2]) arising from a series of burglaries in the Washington Heights area of Manhattan. Blue and Puello previously had been arrested on August 27, 2012, but that case was dismissed and Blue was released. [*2] At some point between his release and the arraignment on the indictment that was scheduled for March 28, 2013, Blue traveled from New York to Florida. He did not appear for arraignment at the scheduled time, but Puello did. On April 17, 2013, Puello requested a motion schedule, and the court, after an extension, set June 26, 2013 as its date of decision. [FN1] After law enforcement located and apprehended Blue in Florida, he appeared for arraignment on June 13, 2013—80 days after his indictment and 57 days after Puello's request for an adjournment. Blue was represented by court-appointed counsel when he appeared for arraignment, but by early 2014 he asked the trial court to proceed pro se. The court first addressed Blue's motion at an appearance on January 8, 2014. It advised Blue that waiving his right to counsel would be "a big mistake" because he "face[d] a lot of jail time." Blue persisted in his request, and {**42 NY3d at 589} the court reiterated that he was making "a mistake," asked him to think more about his decision, and decided to hold the motion over until Blue's next appearance. When Blue next appeared on February 3, 2014, he insisted that he still wanted to waive his right to counsel. The trial court engaged Blue in a colloquy to determine whether his waiver was knowing, voluntary, and intelligent. It explained, among other things, the nature of the charges against Blue and the dangers and disadvantages of representing oneself in a criminal proceeding. Blue stated that he understood the consequences of his decision. Specifically, he confirmed that he understood that "many pro se representations are not successful"; that he would "be held to the same legal standards" as an attorney; that he would be "foregoing the benefits of courtroom experience and legal training possessed" by his court-appointed attorney; and that he believed he was "capable of representing [himself] in this case." On the last point, Blue informed the court that he had "been involved in the criminal justice system before," and that he had "read [a] criminal advocacy law book" and "been in debate classes." The court also explained to Blue that he was entitled to standby counsel, but Blue waived that right too, stating, "I'm positive. I waive standby counsel also." Following this colloquy, the court was satisfied that Blue's "request [was] unequivocal" and that his decision "to give up [his] right to be represented by a lawyer [was] knowingly and intelligently made." It then granted Blue's request to proceed pro se. Over the course of the proceedings, Blue filed several motions to dismiss the indictment on statutory speedy-trial grounds. Relevant here is Blue's first motion, filed on April 8, 2014, in which he argued that "[a]ll the time between March 25, 2013, to June 13, 2013, is chargeable to the People" because he "was never notified of the proceedings" and "could not have voluntarily absented himself from a hearing for which he was not informed." The People responded that the entire period should be excluded from the speedy-trial calculation under CPL 30.30 (4) (c) (i) because Blue fled to Florida after learning he had been indicted. Blue denied this allegation, insisting that he had no knowledge of the indictment when he left New York. Supreme Court denied Blue's motion. It acknowledged the factual dispute over whether Blue left the state to avoid apprehension, but concluded that there was no need to resolve it. {**42 NY3d at 590} Instead, relying on CPL 30.30 (4) (d), the court found that Blue's speedy-trial clock stopped on April 17, 2013, when Puello asked for an adjournment to file pretrial motions. Because Puello had not requested motion practice until 23 days after the indictment was filed, the court concluded that "at most 23 days of [the 80-day period between Blue's indictment and arraignment] would be" chargeable to the People. In that order, Supreme Court also determined that an additional 70 days were chargeable to the People on other grounds. That brought the speedy-trial clock up only to 93 days—far short of the six-month limit that would require dismissal. [*3] A year later, Blue filed another motion to dismiss pursuant to CPL 30.30. He argued that certain periods subsequent to his earlier motions were chargeable and reiterated his position that the period from March 25, 2013 to June 13, 2013 was chargeable as well. Supreme Court agreed that some additional periods of time postdating its earlier order were chargeable to the People, and further found that, even assuming the entire 80-day period between Blue's indictment and arraignment was chargeable, "no more than 174 days are chargeable to the People." The court therefore denied that motion as well. The case proceeded to trial, and a jury found Blue guilty on five of the six counts. Supreme Court sentenced Blue to consecutive terms amounting to 25 years in prison followed by five years of postrelease supervision. Blue appealed the judgment as well as the subsequent denial of his CPL 440.10 motion, which was based, among other things, on the alleged CPL 30.30 violation. On the speedy-trial issue, the Appellate Division rejected Blue's contention that the entire period between his indictment and arraignment was chargeable to the People, but agreed that the period from March 25, 2013, to April 17, 2013, was chargeable ( see 202 AD3d 546, 547 [1st Dept 2022]). [FN2] The Court also found that the trial court had improperly excluded an unrelated 12-day period in November 2014 ( see id. ). Those determinations, taken together, brought the amount of time {**42 NY3d at 591} chargeable to the People to only 180 days, [FN3] and accordingly the Appellate Division agreed that Blue's motion to dismiss the indictment should be denied ( see id. ). The Appellate Division also rejected Blue's argument, made for the first time on appeal, that the trial court should have suppressed text messages obtained pursuant to a warrant to search his cell phone because the warrant was executed "more than ten days after the date of issuance," and, according to Blue, thus violated CPL 690.30 (1). The Appellate Division determined there was no statutory violation and affirmed the conviction ( see 202 AD3d at 547). A Judge of this Court granted Blue leave to appeal (39 NY3d 984 [2022]). II. We begin with Blue's challenge to the validity of his waiver of his constitutional right to counsel. It is well-established that a defendant may choose to proceed pro se ( see People v McIntyre , 36 NY2d 10, 14-15 [1974]; Faretta v California , 422 US 806, 827-830 [1975]). Because this decision requires a disavowal of the constitutional right to counsel and the many benefits associated with legal representation, "a defendant must make a knowing, voluntary and intelligent waiver of" that right ( People v Arroyo , 98 NY2d 101, 103 [2002]). A trial court must undertake a "searching inquiry" in assessing whether a defendant's waiver meets this standard ( People v Providence , 2 NY3d 579 , 582 [2004] [internal quotation marks omitted]). That "inquiry encompasses consideration of a defendant's pedigree since such factors as age, level of education, occupation and previous exposure to the legal system may bear on a waiver's validity" ( People v Crampe , 17 [*4] NY3d 469, 482 [2011]). Furthermore, it must be "aimed at insuring that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel" ( Providence , 2 NY3d at 582 [internal quotation marks omitted]; see also People v Vivenzio , 62 NY2d 775, 776 [1984]). As the U.S. Supreme Court put it, a trial court must assure itself that the defendant "knows what he is doing and his choice is made with eyes open" ( Faretta , 422 US at 835, quoting Adams v United States ex rel. McCann , 317 US 269, 279 [1942]). {**42 NY3d at 592} Mindful that "there is simply no one-size-fits-all format for a searching inquiry" ( Crampe , 17 NY3d at 483), "we have eschewed application of any rigid formula and endorsed the use of a nonformalistic, flexible inquiry" ( Arroyo , 98 NY2d at 104). We have required that the colloquy "adequately warn[ ] a defendant of the risks inherent in proceeding pro se , and appris[e] a defendant of the singular importance of the lawyer in the adversarial system of adjudication" ( People v Smith , 92 NY2d 516, 520 [1998]). When a defendant challenges the validity of their waiver on appeal, "a reviewing court may look to the whole record, not simply to the questions asked and answers given during a waiver colloquy," to determine whether the defendant effectively waived counsel ( Providence , 2 NY3d at 581). In reviewing the record, "[t]he critical consideration is defendant's knowledge at the point in time when he first waived his right to counsel" ( Crampe , 17 NY3d at 483). Although post-colloquy proceedings cannot "retrospectively 'cur[e]' " an invalid waiver, "the record as a whole may . . . be considered when a court assesses whether the accused [was] aware of the dangers of self-representation" at the time of the waiver colloquy ( id. ). Blue argues that his waiver was deficient in only one respect: the trial court did not expressly lay out during the waiver colloquy the range of allowable punishments—including the maximum number of years of potential imprisonment—that Blue might face if convicted. That position finds support in at least one decision from the First Department, which held that the trial court was required to inform a defendant during the colloquy of their "actual sentencing exposure" ( see People v Rodriguez , 158 AD3d 143 , 152-153 [1st Dept 2018]; but see People v Rogers , 186 AD3d 1046 , 1048 [4th Dept 2020] [declining to follow Rodriguez ]) . But neither this Court nor the U.S. Supreme Court have required a specific recitation of maximum potential years of imprisonment as part of a valid waiver colloquy. To the contrary, we have declined to impose particularized requirements of this sort upon a trial court, instead instructing that the inquiry is flexible and should be aimed at achieving the goals outlined above ( see e.g. Providence , 2 NY3d at 583; Arroyo , 98 NY2d at 104; Smith , 92 NY2d at 520-521; see also Faretta , 422 US at 835). None of the cases Blue and the dissent marshal hold otherwise. In Von Moltke v Gillies (332 US 708 [1948]), a plurality of the U.S. Supreme Court emphasized that the validity of {**42 NY3d at 593} a waiver turns on the "circumstances" surrounding it ( id. at 723, 724). There, the defendant—the wife of an alleged German spy who was told only that she was being held indefinitely "as a dangerous enemy alien"—was briefly assigned an attorney who agreed to represent her for "only two or three minutes" at arraignment, but she otherwise had "no legal counsel upon whom to rely except the government lawyer-agents" who would prosecute her case ( id. at 711, 722, 716-717). Throughout the proceedings, the defendant gave no indication that she was aware "a sentence of death could be imposed under the charges" ( id. at 718); witness testimony revealed the defendant's "perplexity," "doubt," and "uncertainty" leading up to her decision to plead guilty; and the record revealed no "explanation of the implications of the indictment or of the consequences of her plea" ( id. at 725, 717). On those facts, the plurality found her waiver of counsel invalid and noted that information "essential to a [defendant's] broad understanding of the whole matter" included "an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, [and] possible defenses to the charges and circumstances in mitigation thereof" ( id. at 724). [*5] Our analysis in Matter of Lawrence S. (29 NY2d 206 [1971]) was along similar lines. We noted that the case involved a "13-year-old respondent," and that "with respect to a juvenile charged as a delinquent, the courts have imposed particularly strict requirements before permitting a waiver of his right to counsel" ( id. at 209, 208). We found the waiver invalid not because the court failed to make any particular statement during the colloquy regarding the potential years of imprisonment faced by the defendant, but because the court's inquiry did not sufficiently account for the youth and inexperience of the defendant ( see id. at 208-209). Nor does Iowa v Tovar (541 US 77 [2004]) mandate that a colloquy include any specific, formulaic statements regarding the precise number of years of incarceration a defendant might face. In Tovar , the U.S. Supreme Court unanimously reversed a state court decision requiring trial courts to give specific warnings to a defendant during a waiver colloquy ( see id. at 81). The Court found the colloquy at issue sufficient even without these warnings because the defendant was informed of the charges against him, his right to counsel, and the range of allowable punishments ( see id. ). While finding those factors {**42 NY3d at 594} relevant, the Court did not hold it constitutionally necessary to provide each of those three specific items of information during a colloquy. Indeed, the Court stressed that it has never "prescribed any formula or script to be read to a defendant" during a colloquy, and that its "decisions indicate" that "[t]he information a defendant must possess in order to make an intelligent election . . . will depend on a range of case-specific factors" ( id. at 88; see also id. at 92). Thus, as we previously have explained, Tovar reaffirms that "the scope of a searching inquiry turns on the context in which the right to counsel is waived," rather than declaring a new rule for assessing the validity of a waiver ( Crampe , 17 NY3d at 483; see also id. at 484, citing & discussing Tovar , 541 US at 89). [FN4] [1] The question before us, then, is whether Blue was adequately warned of the dangers of proceeding pro se when he waived his right to counsel. Our review of the whole record satisfies us that he was. The proceedings prior to the colloquy establish that Blue was aware that he likely would serve a lengthy prison sentence if convicted. At arraignment, the People informed the court in Blue's presence that "the defendant is charged with six C violent felonies and faces substantial time." Then, while conversing with the defense counsel, the court explained that "[t]he defendant faces a mandatory state prison sentence and could get consecutive sentences. He is clearly facing a lot of time." That remark prompted the People to clarify the sentence they would seek: "The People in this case are recommending 12 years jail with five years [*6] post release supervision." Later, on {**42 NY3d at 595} January 8, 2014, when the court first addressed Blue's motion to proceed pro se, Blue explicitly stated that he understood he might serve a significant sentence: "THE DEFENDANT: I still would like to waive counsel and proceed pro se. "THE COURT: That's a big mistake. You face a lot of jail time. "THE DEFENDANT: I understand, your Honor, but I am making my decision. . . . "THE COURT: It's a big mistake. . . . "THE DEFENDANT: So what is the decision for the pro se? "THE COURT: I want you to think about that. That's a mistake. I am going to ask you a lot of questions on February 3rd. "THE DEFENDANT: I understand." In light of these exchanges during pre-colloquy proceedings, it is clear that Blue had an understanding of the extent of his potential sentencing {**42 NY3d at 596} exposure by the time the trial court conducted its waiver inquiry on February 3, 2014. Then, during the colloquy, Blue informed the court that he had been through a trial before and that he understood he was charged with "[b]urglary [in] the second degree." He also told the court that he had discussed a potential plea bargain—what he called a "cop out"—and the strength of the People's evidence with his court-appointed attorney, indicating that he understood he faced an even longer sentence than the 12 years of imprisonment and five years of postrelease supervision that the People sought. Nothing in the post-colloquy proceedings suggests Blue did not apprehend the extent of his potential sentencing exposure. During an appearance on September 29, 2014, the court noted that Blue's "exposure in this case is huge" and that he could "go to jail for 25, 30, [or] 40 years," to which Blue replied that he was "aware" and understood. The court later informed Blue, during discussion of a possible plea, that his exposure was "way, way beyond five years" and Blue said, "I'm fully aware of it. I'm fully aware." These proceedings confirm what was apparent from the pre-colloquy proceedings: Blue had an understanding of the extent of his potential sentencing exposure at the time he elected to waive his right to counsel. [FN5] We thus find his waiver valid. [FN6] III. [*7] [2] We turn now to Blue's statutory speedy-trial claim. "CPL 30.30 require[s] that the People be ready for trial within specific time periods that vary according to the level of offense charged" ( People v Bay , 41 NY3d 200 , 207 [2023]). "The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded" ( People v Price , 14 NY3d 61 , 63 [2010]). When, as here, a defendant is charged with a felony, CPL 30.30 (1) (a) requires the People to be ready for trial within six months of the commencement of the criminal action. The parties agree that the People were required to declare readiness within 184 days, and that the Appellate Division properly charged 180 days to the People. They dispute whether the 57-day period from April 17, 2013, when Puello adjourned for motion practice, and June 13, 2013, when Blue was arraigned, should be excluded pursuant to CPL 30.30 (4) (d). The Appellate Division concluded that the period is not chargeable to the People. We agree. "When resolving a question of statutory interpretation, the primary consideration is to ascertain and give effect to the legislature's intent" ( People v Schneider , 37 NY3d 187 , 196 [2021]). As the clearest indicator of legislative intent, "the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" ( People v Golo , 26 NY3d 358 , 361 [2015] [internal quotation marks omitted]) . CPL 30.30 (4) (d) provides that "the following period[ ] must be excluded" from the speedy-trial clock: "a reasonable {**42 NY3d at 597} period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial pursuant to this section has not run and good cause is not shown for granting a severance." The question before us is when a defendant is "joined for trial" with a codefendant: prior to arraignment, or, in cases where the defendant is not arraigned at the same time as his codefendants, only afterwards. The answer to that question is supplied by CPL 200.40, which sets forth "[t]he three basic situations in which two or more defendants may be joined for trial" (Peter Preiser, Prac Commentaries, McKinney's Cons Laws of NY, CPL 200.40). As relevant here, CPL 200.40 (1) (a) states that "[t]wo or more defendants may be jointly charged in a single indictment provided that . . . all such defendants are jointly charged with every offense alleged therein." Blue and Puello were jointly charged in a single indictment with every offense alleged therein, and so Blue was joined for trial with his codefendant at the time of indictment, prior to his arraignment, for purposes of CPL 30.30 (4) (d). This interpretation is consistent with the purposes underlying the exclusion. We long have recognized that in the State of New York, "a strong public policy favors joinder, because it expedites the judicial process, reduces court congestion, and avoids the necessity of recalling witnesses" ( People v Mahboubian , 74 NY2d 174, 183 [1989]). CPL 30.30 (4) (d) furthers that policy by facilitating joint proceedings, easing the administration of multidefendant cases, and preventing defendants from benefitting from delays caused by codefendants who might, for example, make successive requests for adjournments ( see People v Chrysler , 152 AD3d 825 , 827 [3d Dept 2017], lv denied 30 NY3d 948 [2017]). We note that the federal courts have inferred the same purposes from near-identical statutory language ( see e.g. United States v Pena , 793 F2d 486, 489-490 [2d Cir 1986]). Blue argues that a defendant nonetheless cannot be joined for trial for purposes of CPL 30.30 (4) (d) until they have been arraigned. Arraignment confers jurisdiction over a defendant ( see People v England , 84 NY2d 1, 4-5 [1994]) and triggers various rights under the Criminal Procedure Law ( see CPL 210.15 [1], [2]). But these points do not necessarily compel the reading of CPL 30.30 (4) (d) that Blue advances. As an initial matter, the text of the provision does not differentiate between pre- and post-arraignment time. And we previously have {**42 NY3d at 598} recognized that the People may declare readiness before a defendant is arraigned and that certain prearraignment delays not attributable to the People may be excluded from the speedy-trial clock ( see e.g. People v Carter , 91 NY2d 795, 799 [1998]), confirming that time is not chargeable to the People simply because no court has jurisdiction over the criminal action and the defendant's rights have not yet attached under the Criminal Procedure Law. In the same vein, Blue argues that if the legislature had intended for the exclusion to apply before arraignment, then it would have expressly said as much. He suggests that we should infer from the absence of a clear statement applying the exclusion to prearraignment time that it applies only to post-arraignment time. The statutory scheme refutes the premise of this argument. Looking to the rest of CPL 30.30, we note that another provision distinguishes between pre- and post-arraignment time ( see CPL 30.30 [4] [i]). That express textual distinction shows that the legislature knew how to draft an exclusion that applies only to pre- or post-arraignment time, but did not do so in CPL 30.30 (4) (d). Blue also argues that the provision's reference to severance implicitly limits CPL 30.30 (4) (d) to post-arraignment time. The provision does not apply unless "good cause is not shown for granting a severance" (CPL 30.30 [4] [d]). Blue notes that severance is a remedy ordinarily available to a defendant only after they have been arraigned ( see CPL 255.20 [1]), and argues that it would not make sense for CPL 30.30 (4) (d) to apply before arraignment, when a defendant cannot sever their proceedings. We disagree. When the People seek to exclude time pursuant to CPL 30.30 (4) (d), a defendant may make a showing of good-cause severance not necessarily to sever the joint proceedings, but instead to charge that period of time to the People. Some defendants might wish only to charge additional time to the People, without actually severing the joint proceedings. And as at least one Appellate Division has recognized, the exclusion allows a defendant to show that he would have had good cause to sever at some earlier time ( see People v Vidal , 180 AD2d 447, 448-449 [1st Dept 1992]). Next, Blue argues that his interpretation of CPL 30.30 (4) (d) better reflects the purposes of the exclusion. He concedes that the exclusion is intended to prevent defendants from causing delays that inure to the benefit of codefendants, but says that a defendant cannot engage in this kind of gamesmanship {**42 NY3d at 599} until after they have been arraigned, precisely because they cannot file pretrial motions until that point ( see CPL 255.20 [1]). That may be so, but a codefendant, if arraigned, can still participate in that kind of gamesmanship. Further, Blue cannot square his interpretation with the other purposes of the provision, namely, to facilitate joint proceedings and ease administration of multidefendant cases. His interpretation would force the People to undertake the difficult task of maintaining a separate speedy-trial clock for each defendant in a joint proceeding, which might in turn necessitate separate trials—an outcome that would undermine a key purpose of the exclusion. Finally, Blue argues that even if a defendant can be "joined for trial" with a codefendant before he is arraigned, charging prearraignment time to the defendant would conflict with the statutory language that restricts exclusions to a "reasonable period of delay" (CPL 30.30 [4] [d]). According to Blue, it would be unreasonable to charge time to a defendant before a court has jurisdiction and before their rights under the Criminal Procedure Law have attached. But, as we have said, prearraignment delays not caused by the People may be charged to a defendant ( see Carter , 91 NY2d at 799), and Blue has not shown that charging Puello's prearraignment delay to him is unreasonable. In sum, we conclude that the Appellate Division properly excluded from the speedy-trial calculation the 57-day period between Puello's request to adjourn and Blue's arraignment. That leaves the speedy-trial clock at 180 days, four fewer than the maximum number of days to which the People are statutorily entitled. IV. [*8] Blue's remaining challenges are unpreserved or meritless. He argues that he is entitled to a new trial because text messages taken from his cell phone were improperly admitted into evidence in violation of CPL 690.30 (1), which governs the execution of search warrants. This argument is unpreserved. In supplemental pro se briefing, Blue also presents two additional statutory speedy-trial claims. The first of these remaining arguments is not sufficiently developed to establish a basis for reversal and the second is belied by the record. The order of the Appellate Division should be affirmed. Rivera, J. (dissenting). I would reverse and hold that the {**42 NY3d at 600} Constitution requires the trial court to explore whether a criminal defendant is aware of their sentencing exposure as part of its "searching inquiry" before they may proceed pro se ( People v White , 56 NY2d 110, 117 [1982]). [FN1] Here, the court failed to ensure that defendant was aware of the range of punishments allowable for the crimes as charged and a new trial is required. A defendant may waive their right to counsel and proceed pro se but only once the court has confirmed for itself that the defendant is aware of the risks of foregoing assistance of counsel ( Matter of Lawrence S ., 29 NY2d 206, 208 [1971], quoting Von Moltke v Gillies , 332 US 708, 724 [1948]; Iowa v Tovar , 541 US 77, 81 [2004]). The court's duty is not solely to inform defendants lacking the legal training and skills necessary to meaningfully defend against the prosecution of the dangers of self-representation. As the United States Supreme Court and this Court have explained, the duty entails much more. Before they may proceed pro se, a defendant must apprehend "the nature of the charges, the statutory offenses included within them, [and] the range of allowable punishments thereunder," in addition to any other "facts essential to a broad understanding of the whole matter" ( Matter of Lawrence S. , 29 NY2d at 208, quoting Von Moltke , 332 US at 724). When assessing if the prosecution has met its burden of "proving a knowing, intelligent and voluntary waiver," "the courts must indulge every reasonable presumption against waiver" ( People v Davis , 75 NY2d 517, 523 [1990], citing Brewer v Williams , 430 US 387, 404 [1977]). [*9] As the Supreme Court stated in Von Moltke v Gillies : "The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before [them] demand" ( {**42 NY3d at 601} 332 US 708, 723-724 [internal quotation marks omitted]). [FN2] A constitutionally valid waiver "must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances" ( id. at 724 [emphasis added]). In other words, judicial confirmation that the defendant appreciates each of these circumstances is a necessary component of the court's protective duty. It is not enough for the court to assume that, under the circumstances, the defendant probably appreciates the risks of going pro se—for the waiver to be valid, the court must create a record that establishes defendant's knowledge of those risks, including the defendant's sentencing exposure. The majority holding on the matter is unclear. Perhaps the majority means to say one of the following: (1) its flexible, case-by-case inquiry results in no actual requirement that the trial court ensure that a defendant have any comprehension of the range of punishments that they face; (2) there is some requirement that a defendant understand if they face prison time; (3) as long as the defendant is charged with a serious crime, they should know they face significant time; or (4) no constitutional problem arises if the defendant has some ballpark understanding of the amount of time they face, even if that is off by almost a decade. Whatever the majority intends, its analysis disregards the import of Supreme Court and Court of Appeals precedent establishing a more straightforward, workable requirement that a court ascertain whether a defendant has an understanding of the range of allowable punishments they face before they may validly waive counsel. {**42 NY3d at 602} The majority misconstrues how this Court previously characterized the holding of Von Moltke . As explained in Matter of Lawrence S : [*10] " 'To be valid', the Supreme Court declared in the Von Moltke case (332 U. S. 708, 724, supra ), 'such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder , possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter' " (29 NY2d at 208-209 [emphases added]). While the Matter of Lawrence S. Court noted that the government must meet a particularly "heavy burden" to permit a juvenile to waive counsel, this did not—and, of course, could not—either raise or lower Von Moltke 's federal constitutional floor ( see Matter of Lawrence S. , 29 NY2d at 208). Matter of Lawrence S. merely confirmed the settled proposition that, as with waivers of constitutional rights generally, age is a factor that courts must consider when evaluating whether the record supports " 'an intentional relinquishment or abandonment of a known right' " to counsel ( United States ex rel. B. v Shelly , 430 F2d 215, 218 [2d Cir 1970], quoting Johnson v Zerbst , 304 US 458, 464 [1938], cited in Matter of Lawrence S. , 29 NY2d at 208). Accordingly, for juveniles, the last clause of the Von Moltke rule, " and all other facts essential to a broad understanding of the whole matter," necessarily may include more (332 US at 724 [emphasis added]). Contrary to the majority's suggestion, nothing in Matter of Lawrence transforms the requirement for understanding the "range of allowable punishments" as optional. Here, defendant argues that the court's inquiry was deficient because it failed to confirm defendant's understanding of the range of allowable punishments. Defendant was charged with six counts of second-degree burglary ( see Penal Law § 140.25 [2]), and, according to the prosecution, faced a maximum sentencing exposure of 90 years, subject to a statutory 20 year cap (Penal Law § 70.30 [1] [e] [i]). [FN3] Defendant asserts that the court should have conducted the required "searching inquiry" about his awareness of the "range of allowable punishments," {**42 NY3d at 603} including his maximum sentencing exposure. The court's failure to do so rendered his waiver of his right to counsel invalid. To the extent the majority describes how the court complied with its duty in other respects—informing defendant of the risks of self-representation—defendant does not challenge this aspect of the court's inquiry. The fact that the court's inquiry may have been adequate in other ways is beside the point, as it is irrelevant to the specific question before us of whether defendant understood the range of punishments. The majority clouds the issue by stating that there is no "mandate that [*11] a colloquy include any specific, formulaic statements" (majority op at &mdash). I agree that the Court has never imposed a catechism for ensuring a knowing, voluntary, and intelligent waiver. Nor has the Supreme Court, which has explained that a colloquy does not require "any formula or script to be read to a defendant" to be valid ( Tovar , 541 US at 88). But allowing courts flexibility in how they carry out their duty and how they communicate with a defendant has no bearing on what they must convey in order to comply with that duty and does not diminish a court's responsibility to make sure whatever is said and done complies with the Constitution. While a colloquy need not "include any specific, formulaic statements regarding the precise number of years of incarceration a defendant might face," it still must address the range of allowable punishments (majority op at &mdash). Otherwise, a court cannot be certain that the defendant is making an informed decision to waive their constitutional right. The most obvious way a court may ensure that a defendant understands the range of punishments is to discuss the defendant's sentencing exposure with them while discussing the inherent risks of self-representation. But merely stating that a defendant faces incarceration, or "a lot of time"—as the court did here—is constitutionally inadequate. We have rejected similar {**42 NY3d at 604} language ( see e.g. People v Kaltenbach , 60 NY2d 797, 798-799 [1983] ["The court's declarations—that defendant was entitled to be represented by a lawyer; that he was facing a serious charge; and that, if convicted, he could receive a year's imprisonment—did not satisfy the duty to make a searching inquiry"]; [FN4] People v Sawyer , 57 NY2d 12, 21 [1982] ["The court's declarations that defendant was 'facing a very serious charge' and that 'your own best interests are probably served by having a lawyer represent you' simply did not satisfy the duty to make a 'searching inquiry' "]). The word "range" means "the limits of a series : the distance or extent between possible extremes" or "the difference between the least and greatest values of an attribute" (Merriam-Webster.com Dictionary, range [https://www.merriam-webster.com/dictionary/range]). A defendant understands "the range of allowable punishments" if that includes knowledge of the length of a possible confinement ( Von Moltke , 332 US at 724). The court may easily dispense with its duty by ensuring that a defendant knows the statutory maximum allowable under the Penal Law for each offense charged, that sentences on the offenses may run consecutively or be subject to enhancement, and the application of the statutory cap. The court may also rely on a clear record that defendant is aware of the potential years of confinement. Here, prior to accepting defendant's waiver of the right to counsel, the court did not inform him of the potential span of confinement or the maximum time he faced if convicted on all charges. Though the majority claims otherwise (majority op at &mdash), the record does not clearly support defendant's understanding of his sentencing exposure at that [*12] time. Defendant does not state his understanding of the potential sentence he faced, and his attorney provided no such information in defendant's presence on the record as to the time he would potentially serve. {**42 NY3d at 605} As the majority correctly recognizes, "post-colloquy proceedings cannot 'retrospectively "cure" an invalid waiver' " (majority op at — [brackets omitted], quoting People v Crampe , 17 NY3d 469, 483 [2011]). To the extent the majority asserts that defendant's post-waiver statements only confirm his pre-waiver understanding, the majority's assertion is no argument at all since it depends on a pre-waiver basis for concluding defendant had the requisite knowledge ( see Crampe at 483). So, we must look to the record before and at the time of the waiver. The majority claims that defendant "was aware that he likely would serve a lengthy prison sentence if convicted" (majority op at &mdash). The majority relies on the prosecution's in-court statement in defendant's presence that he was "charged with six C violent felonies and faces substantial time" ( id. ). This statement says nothing about the number of years in prison defendant faced. Reliance on such would also lead to the absurd result that mere knowledge of the crimes charged is sufficient to establish knowing, intelligent waiver of the right to counsel. The majority also points to the court's statement to defense counsel that "defendant face[d] a mandatory state prison sentence and could get consecutive sentences. He is clearly facing a lot of time" ( id. ). Statements to defense counsel are not the same as judicial inquiry of the defendant ensuring they understand those statements. They provide no basis for inferring that the defendant possesses a constitutionally-sufficient "apprehension" of the consequences of firing their lawyer and representing themselves ( Von Moltke , 332 US at 724). Moreover, the court's statement, like the prosecutor's, failed to put a numerical range to defendant's potential "time" in prison. There is no way around the Supreme Court's mandate that a constitutionally effective waiver requires that a defendant understand the range of punishments ( Tovar , 541 US at 81). "Substantial" means "large" and "a lot" means "very much" or "a large number." The use of either or both these terms fails to convey the enormity of the potential sentence. Indeed, a person facing five years of incarceration would reasonably consider this to be substantial and a lot of time. Here, if found guilty, defendant faced decades in prison (Penal Law §§ 140.25 [2]; 70.00 [2] [c]). The expanse of that range of incarceration was certainly relevant to defendant's assessment of the risk of self-representation. The majority further notes that, in reaction to the court's statement, the prosecution represented that it was "recommending 12 years jail with five years post release {**42 NY3d at 606} supervision." But that was a recommendation, and, in any case, not close to defendant's maximum sentencing exposure, even after applying the statutory cap. Lastly, the majority quotes defendant's statement during the court's first colloquy on January 8, 2014, as establishing that defendant understood he faced "a significant sentence" (majority op at &mdash). But that is not what defendant said. Rather, in response to the court's statement that defendant's request to waive counsel and proceed pro se would be "a big mistake. You face a lot of jail time," defendant replied, "I understand your Honor, but I am making my decision." The majority places undue weight on this one sentence; defendant's response in no way clarifies his understanding of what the court meant by a lot of time, and, more significantly, what defendant would consider to be a lot of time. That is why the Supreme Court has wisely interpreted the Constitution to require the court to confirm defendant understands the range of punishments, rather than an abstract reference to a "substantial" or "a lot" of time. [*13] Similarly, the majority states that defendant's description of the plea bargain as a "cop out" indicated that "he understood he faced an even longer sentence than the 12 years of imprisonment and five years of post-release supervision" (majority op at &mdash). This misrepresents the record by omitting crucial context: "THE COURT: You've never discussed this case with your attorney at all? "THE DEFENDANT: No. "THE COURT: The strength of the People's case, none of that? "THE DEFENDANT: Nothing. The only thing we've discussed is a cop out. We haven't discussed trial strategy, nothing. "THE COURT: Well, when you discussed what you call 'a cop out,' is that a plea? "THE DEFENDANT: Plea bargain, yes, sir. "THE COURT: Didn't your attorney discuss with you the strength of the People's case, what their evidence is going to be? "THE DEFENDANT: There is no evidence. {**42 NY3d at 607} "THE COURT: That's not what I'm asking you. I'm asking you didn't your attorney tell you what the People say their evidence is going to be. You went over that? "THE DEFENDANT: Yes. She told me something about some text messages. I haven't seen anything." There is nothing in this exchange that indicates defendant understood the upper and lower limit of the range of sentences he faced. To the extent that he did understand that the plea bargain offer meant he faced at least 12 years' incarceration, that figure was off by 40% since defendant actually faced 20 years in prison. It appears the majority has decided that 12 years is "close enough" to 20. Putting aside that the majority provides no normative basis for determining what is close enough to an actual range to satisfy the requirement—or to guide courts in the future—the difference between 12 and 20 years—almost a decade—is certainly not close enough by any rational metric. The majority confuses the method of informing the defendant of the range of punishments during the colloquy with whether the court needs develop a record indicating that the defendant knows about the range of punishments at all . By stretching beyond any permissible bounds of what a "flexible inquiry" may require, the majority concludes that this inquiry may be so flexible as to be functionally no inquiry at all that defendant comprehends the range of sentences they face ( People v Arroyo , 98 NY2d 101, 104 [2002]). Permitting "a lot" to satisfy the court's duty to inform defendant about the range of sentences they face makes the requirements of this inquiry so flexible as to be meaningless. [*14] Numbers matter. As I have stated previously, a defendant's sentencing exposure is perhaps the most important information necessary for a defendant to chart their course. It affects their decision whether to plead guilty, testify on their own behalf, and represent themselves without the assistance of a trained legal advocate ( Tovar , 541 US at 81; People v Bush , 38 NY3d 66 , 80 [2022, Rivera, J., dissenting]; People v Williams , 27 NY3d 212 , 226 [2016, Rivera, J., dissenting]). It is neither impossible nor a significant burden on the court to ensure defendant understands the range of punishments with some numerical reference. The Penal Law sets the potential sentence. To the extent the majority believes it is simply too much to expect and somehow too complex a calculus for a court to {**42 NY3d at 608} provide a range, then how can we expect a defendant to be more adept at determining their sentencing exposure? Courts can provide a defendant information about the range of their sentencing exposure and do so all the time. Since the Constitution tolerates nothing less, I dissent. Chief Judge Wilson and Judges Garcia, Singas, Cannataro and Troutman concur. Judge Rivera dissents in an opinion. Order affirmed. Footnotes Footnote 1: Puello eventually pleaded guilty to the charges and is not a party to this appeal. Footnote 2: Blue also argued that the entire 33-day period from May 11, 2015, to June 13, 2015, was chargeable to the People. The trial court charged part of that time to the People but found that the speedy-trial clock stopped on June 7, when Blue filed a motion to dismiss. Blue contended that the clock should not have stopped until June 13, 2015, apparently because he had mailed his motion from out of state. The Appellate Division did not expressly address this contested period. Footnote 3: Although the Appellate Division did not elaborate on this point, the parties agree that at least 180 days are chargeable to the People. Footnote 4: The dissent's reliance on People v Kaltenbach (60 NY2d 797 [1983]) and People v Sawyer (57 NY2d 12 [1982]) is misplaced ( see dissenting op at &mdash). Those decisions turned not on the absence of any particular statement from a waiver colloquy, but on the absence of a meaningful colloquy altogether. In Kaltenbach , the trial court undertook merely a "precautionary inquiry" consisting of statements "that defendant was entitled to be represented by a lawyer," "that he was facing a serious charge," "and that, if convicted, he could receive a year's imprisonment" (60 NY2d at 799). We held that absent "further colloquy regarding defendant's decision" to proceed pro se, these "declarations . . . failed to adequately warn defendant of the risks inherent in representing himself or apprise him of the value of counsel" ( id. at 798, 799 [internal quotation marks omitted]). We found the waiver in Sawyer invalid for the same reason: the trial court's "precautionary inquiry" consisted only of "declarations" to the defendant, rather than a "colloquy on the record between the judge and defendant [to] test the defendant's understanding" of his decision (57 NY2d at 21 [internal quotations marks omitted]). There is no question here that the trial court engaged in a colloquy with Blue to test his understanding of his request to proceed pro se. Footnote 5: The dissent dismisses the requirement that a defendant apprehend the extent of his potential sentencing exposure as "unclear" (dissenting op at &mdash), but it is difficult to ascertain exactly what obligation the dissent would impose ( see id. at &mdash, &mdash, &mdash, &mdash). If the dissent means to suggest that a trial court must inform a defendant of "the statutory maximum allowable under the Penal Law for each offense charged, that sentences on the offenses may run consecutively or be subject to enhancement, and the application of the statutory cap" ( id. at &mdash), there is, as we have explained, no precedent from the U.S. Supreme Court or this Court mandating such specificity. Footnote 6: After Blue's trial, the Model Colloquy was revised to include a statement of the defendant's potential sentencing exposure. As we have "emphasized, the model charges contain the 'preferred phrasing' of legal instructions" ( People v J.L. , 36 NY3d 112 , 122 [2020], quoting People v Cubino , 88 NY2d 998, 1000 [1996]). Footnote 1: I agree with the majority's disposition of defendant's other claims. Footnote 2: Von Moltke v Gillies (332 US 708) is a plurality opinion, but its "range of allowable punishments" requirement was adopted by a unanimous United States Supreme Court in Tovar (541 US at 81, 88-89) and by this Court in Matter of Lawrence S . (29 NY2d at 208). Footnote 3: This sentence would be deemed to be 20 years after applying the limitation on consecutive determinate sentences set forth in Penal Law § 70.30 (1) (e) (i). In People v Moore (61 NY2d 575, 578 [1984]), this Court explained that "[w]here the aggregate maximum term of consecutive sentences imposed . . . exceeds the applicable limitation set forth in section 70.30 (subd 1, par [c]) of the Penal Law, the term shall be 'deemed' to be equal to that limitation and 'reduced' accordingly. The statute does not restrict the number or length of the individual consecutive sentences that may be imposed . . . it merely requires that the Department of Correctional Services calculate the aggregate maximum length of imprisonment consistent with the applicable limitation." @f2Accordingly, as conceded by the prosecution, defendant's maximum sentencing exposure—the incarceratory term the court could impose—was 90 years. Footnote 4: The majority incorrectly characterizes Kaltenbach as turning "not on the absence of any particular statement from a waiver colloquy, but on the absence of a meaningful colloquy altogether" (majority op — n 4; 60 NY2d 797, 798-799). Kaltenbach states that "[t]here was no further colloquy regarding defendant's decision" ( id. at 798 [emphasis added]), and "[t]he court's declarations—that defendant was entitled to be represented by a lawyer; that he was facing a serious charge; and that, if convicted, he could receive a year's imprisonment—did not satisfy the duty to make a searching inquiry" ( id. at 799). The Court continued that "[t]he precautionary inquiry in this case" was insufficient—in other words, it existed, but was not enough ( id. ). Here, too, there was a colloquy that was insufficiently searching to determine whether defendant comprehended the range of allowable punishments.

[Assistant]
Court rejected defendant's contentions that (1) he should not have been
allowed to proceed pro se because the trial judge, in conducting the
colloquy re the waiver of the right to counsel, did not specifically advise
him of the maximum prison term he faced if convicted.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Poulos 2024 NY Slip Op 05152 [231 AD3d 1273] October 17, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] (October 17, 2024) The People of the State of New York, Respondent, v Tyson Poulos, Appellant. Paul J. Connolly, Delmar, for appellant, and appellant pro se. Jason M. Carusone, District Attorney, Lake George (Robert P. McCarty of counsel), for respondent. Mackey, J. Appeal from a judgment of the County Court of Warren County (John S. Hall Jr., J.), rendered June 29, 2016, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree and criminal sale of a controlled substance in the third degree (two counts). In January 2014, the Warren County Sheriff's Department received a tip from a confidential informant that defendant, who had an outstanding arrest warrant, was selling drugs out of room 118 at the Budget Inn Motel in the Town of Queensbury. Members of the Warren County Narcotics Enforcement Unit responded to the motel and proceeded to room 118, which was registered to defendant's girlfriend. Defendant and his girlfriend were both present and, after allegedly obtaining the girlfriend's consent, officers entered and searched the room, where they discovered heroin and crack cocaine, smaller quantities of other scheduled drugs and items that appeared to be associated with reselling the drugs. The officers also seized two cell phones from inside the motel room. In connection therewith, defendant was charged by indictment with, in relevant part, two counts of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree and aggravated harassment in the second degree. [FN1] When evidence was later discovered that defendant had sold drugs out of the motel, he was also charged in a separate indictment with two counts of criminal sale of a controlled substance in the third degree and the two indictments were consolidated for trial. After trial, defendant was convicted of both counts of criminal possession of a controlled substance in the third degree (counts 1 and 2), each count of criminal possession of a controlled substance in the fourth and seventh degrees (counts 3 and 4, respectively) and both counts of criminal sale of a controlled substance in the third degree (counts 5 and 6). Thereafter, County Court sentenced defendant to various concurrent and consecutive terms of incarceration, with the aggregate of the consecutive sentences amounting to a prison term of 32 years, to be followed by three years of postrelease supervision, and imposed a $5,000 fine upon him. Defendant appeals. We begin by addressing defendant's argument that County Court erred in denying his request to represent himself at trial. "A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues" ( People v McIntyre , 36 NY2d 10, 17 [1974]; see People [*2] v Atutis , 222 AD3d 1106 , 1106 [3d Dept 2023]; People v Curry , 152 AD3d 818 , 821 [3d Dept 2017], lv denied 30 NY3d 948 [2017]; People v Poulos , 144 AD3d 1389 , 1391 [3d Dept 2016]). At his arraignment in April 2014, defendant informed County Court that he "was considering the possibility of going pro se." The court responded that such a move was typically "a bad idea" because counsel's education and experience "can really be a great benefit for you." The court inquired into defendant's educational background and, after testing his understanding of the law, acknowledged that defendant's knowledge put him "ahead of a lot of people." However, it noted that "it would be unrealistic to think that [he had] the knowledge and experience [of] somebody who's gone through three years of law school plus been practicing law a number of years." Still, the court indicated that it would consider a future application to proceed pro se, before urging defendant "to reconsider that idea. It's just a bad idea." Thereafter, by letters dated August 15, 2014 and September 22, 2014, defendant's counsel informed the court that defendant wanted to represent himself at trial. [FN2] Having received no response from the court, on September 25, 2014, defendant filed a motion requesting that the court allow him to proceed pro se. To illustrate his competence to proceed without the assistance of counsel, defendant prepared his own omnibus motion which, according to his counsel at the time, "demonstrate[d] an understanding of the nature of the proceedings." Without conducting any inquiry to determine if defendant's waiver of counsel and request to represent himself was knowing and intelligent, the court, seemingly relying upon its determination in a prior unrelated criminal matter that defendant was incompetent to represent himself, summarily denied his request. [FN3] A court may not summarily deny a defendant's request to represent himself or herself, even if the court believes it to be in the defendant's best interest to be represented by counsel ( see People v Poulos , 144 AD3d at 1392). Once defendant made his request, which was unequivocal and timely, County Court was required to conduct a colloquy to determine whether he was making a voluntary and intelligent waiver of his right to counsel ( see People v Smith , 68 NY2d 737, 738 [1986], cert denied 479 US 953 [1986]). There is no merit to the People's argument that defendant forfeited his right to represent himself by engaging in disruptive behavior. To the contrary, aside from an isolated incident during the grand jury proceedings, the record does not reflect any disruptive behavior by defendant before the court denied his request to represent himself. Nor did the court make any explicit findings that defendant would not comply with the court's directives if he were allowed to represent himself. In any event, even if the court believed defendant's motion was "a disingenuous attempt to subvert the overall purpose of the trial," it was nevertheless [*3] required "to conduct a dispassionate inquiry into the pertinent factors" ( People v McIntyre , 36 NY2d at 19), which it failed to do. Since defendant was improperly denied the right to proceed pro se, the judgment must be reversed and the matter remitted for a new trial ( see People v Poulos , 144 AD3d at 1392). Next, we address defendant's motion to suppress, as relevant to a new trial. Defendant contends that evidence seized from the motel room should have been suppressed because the warrant to arrest him was based on a charge that he had violated Penal Law § 240.30 (1) (aggravated harassment in the second degree), which statute was later held to be unconstitutionally vague ( see People v Golb , 23 NY3d 455 [2014], cert denied 574 US 1079 [2015]). However, "[t]he subsequently determined invalidity of [a statute] on vagueness grounds does not undermine the validity of [an] arrest made for violation of that [statute], and the evidence discovered in the search of [defendant need not be] suppressed" ( Michigan v DeFillippo , 443 US 31, 40 [1979]). Accordingly, County Court properly denied defendant's motion to suppress on the ground that his arrest was unlawful ( see People v Pantusco , 107 AD2d 854, 855-856 [3d Dept 1985]). Defendant also argues that the evidence seized from the motel room should have been suppressed because the People failed to show that his girlfriend, to whom the room was registered, consented to its search. Although there were some discrepancies in various witnesses' testimony, deferring to County Court's credibility determinations, we find no basis in the record to disturb the court's conclusion that the girlfriend voluntarily consented, both orally and in writing, to a search of the room ( see People v Crispell , 223 AD3d 941 , 942 [3d Dept 2024], lv denied 41 NY3d 964 [2024]; People v Brinkley , 174 AD3d 1159 , 1163-1164 [3d Dept 2019], lv denied 34 NY3d 979 [2019]; People v Miller , 159 AD3d 1053 , 1054 [3d Dept 2018]). We do agree with defendant, however, that County Court erred in denying his motion to suppress evidence obtained through a search of his cell phones, as the application for a warrant to search the phones failed to establish probable cause. A search warrant application must contain "information sufficient to support a reasonable belief that . . . evidence of a crime may be found in a certain place" ( People v Cruz , 221 AD3d 1423 , 1424 [4th Dept 2023] [internal quotation marks and citation omitted], lv denied 41 NY3d 1001 [2024]; see CPL 690.35 [3] [b]; People v Alexander , 207 AD3d 878 , 880 [3d Dept 2022], lv denied 39 NY3d 984 [2022]). The application "may be based upon personal knowledge of the applicant or upon information and belief, provided that in the latter event the sources of such information and the grounds of such belief are stated" (CPL 690.35 [3] [c]). "A presumption of validity attaches to a search warrant signed by a magistrate, and a court's determination that there is a probable cause for a search warrant must [*4] be afforded great deference" ( People v Montgomery , 229 AD3d 899 , 905 [3d Dept 2024] [internal quotation marks and citations omitted]; see People v Cruz , 221 AD3d at 1424-1425). On June 20, 2014, County Court issued a warrant to search the contents of the seized cell phones. The warrant was issued based on the affidavit of an investigator, Anthony Bruno, which recited, in relevant part, that the Warren County Sheriff's Department received a tip from a confidential informant that drugs were being sold out of the motel room where the phones were found; that, in addition to the phones, various quantities of heroin, crack cocaine, methadone, vegetation and drug paraphernalia were seized from the motel room; and that the quantity and appearance of the drugs suggested they were packaged and intended to be sold. Based on this information, Bruno believed the "electronic or digital contents" of the phones "may" contain information about the owner of the cell phones and evidence of the commission of drug-related crimes committed by the phones' owner. The cell phones were subsequently searched pursuant to the warrant. [FN4] In October 2014, defendant filed a motion to suppress the evidence obtained from that search, contending that Bruno's affidavit did not demonstrate probable cause to believe that evidence of a crime would be found within the phones. While that motion was pending, Bruno submitted a second search warrant application regarding the same phones. The only difference between the first application and the second was Bruno's addition of language indicating that, in his extensive law enforcement experience, "cell phones are almost always used by the sellers of narcotics to facilitate them in their sales." A second search warrant was issued in October 2014, and the phones were searched again. The results of the second analysis of the cell phones were identical to the first, with the exception that the second analysis included the phone number associated with one of the phones, whereas the first analysis did not include the phone number. Defendant then filed a second motion to suppress, arguing that law enforcement's "attempt to cure defects in the first warrant application brought to light by the defense's motion to dismiss" constituted an improper "[s]econd [b]ite at the [a]pple." Even so, defendant argued that the improper attempt to cure the deficiencies of the first warrant still failed as there remained "insufficient [detail] to establish a nexus between [defendant's] alleged criminal activity and the phone[s]." After a hearing, County Court denied "[d]efendant's motion to suppress . . . in its entirety." While we defer to all reasonable inferences that the magistrate could have made in issuing the initial search warrant, we find the original affidavit did not establish the probable cause required to issue a search warrant for defendant's cell phones. As noted, the warrant was supported by Bruno's affidavit, which stated that he believed the phones "may" contain digital data, including call histories, that would evidence the commission of criminal possession of a controlled substance in the third degree. However, the statute requires that a statement of reasonable cause based upon information and belief must also state "the sources of such information and the grounds of such belief" (CPL 690.35 [3] [c]), which was lacking here. Stated differently, even where there is probable cause to suspect the defendant of a crime, law enforcement may not search his or her cell phone unless they have information demonstrating that evidence is likely to be found there; some link sufficient to connect the two must be provided. Our review of the affidavit of probable cause in this case reveals no such link. While Bruno recounted that there was a quantity of drugs found in the motel room, along with the two phones, he did not explain why the phones likely contained evidence of a crime. Although common sense and experience might suggest that cell phones found in the same room as a quantity of drugs could potentially contain evidence related to the sale of those drugs, "common sense alone does not establish probable cause to search a person's cell phone" ( People v Jemmott , 164 AD3d 953 , 954 [3d Dept 2018], lv denied 32 NY3d 1112 [2018]). The application's inadequacy is underscored by the subsequent application, submitted months later and shortly after defendant challenged the validity of the warrant. Notably, the only addition in the second application attempts to remedy this deficiency and the People concede that the second application was submitted in response to defendant's motion to suppress "[i]n lieu of litigating the issue." In the second application, Bruno stated that his vast experience as a law enforcement officer who investigates drug-related crimes led him to believe that the phones would contain pertinent evidence because "cell phones are almost always used by the sellers of narcotics to facilitate them in their sales." Although the addition of this contention arguably cured the deficiency in the initial application ( see People v Alexander , 207 AD3d at 880-881), "obtaining a warrant to search [the phones] that had already been searched [cannot] cure the violation of . . . defendant's constitutional rights" ( People v Perez , 88 AD3d 1016 , 1018 [2d Dept 2011]; see People v Hickey , 172 AD3d 745 , 747-748 [2d Dept 2019], lv denied 33 NY3d 1105 [2019]). Accordingly, having been obtained pursuant to an invalid search warrant, the evidence from the two recovered cell phones should have been suppressed ( see People v Williams , 37 NY2d 206, 208 [1975]; People v Jemmott , 164 AD3d at 953-954; People v Mullins , 137 AD2d 227, 231-232 [3d Dept 1988], lv denied 72 NY2d 922 [1988]). During the various pretrial hearings held in this case, the People explained that through the text messages found on defendant's phone that suggested he was selling drugs, they "investigated the whereabouts of" the individuals defendant [*5] was texting, "reached out to th[ose] individuals" and then "filled in the gaps between [the] messages and what occurred." Further information about the discovery of evidence of the sales through the phone was discussed during the trial. Outside of the information uncovered through the data on the phone, the People had no independent basis for the sales charges that they brought against defendant. Accordingly, as the second indictment is, essentially, "fruit of the poisonous tree," the charges in that indictment—counts 5 and 6 as put forth to the jury—must be dismissed ( People v Crispell , 223 AD3d at 945 [internal quotation marks and citations omitted]; compare People v Jordan , 154 AD3d 1176 , 1176-1177 [3d Dept 2017]). Lastly, we address defendant's argument that his convictions for criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree are against the weight of the evidence. [FN5] "Such review entails weighing the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony while viewing the evidence in a neutral light and giving deference to the jury's credibility assessments" ( People v Gibson , 121 AD3d 1416 , 1418 [3d Dept 2014], lv denied 24 NY3d 1119 [2015] [internal quotation marks and citations omitted]; see People v Danielson , 9 NY3d 342 , 348-349 [2007]; People v Bleakley , 69 NY2d 490, 495 [1987]). Inasmuch as a different verdict would not have been unreasonable, we evaluate whether each element of the crimes charged was proven beyond a reasonable doubt ( see People v Danielson , 9 NY3d at 348-349; People v Bleakley , 69 NY2d at 494-495). As relevant to counts 1 and 2, "[a] person is guilty of criminal possession of a controlled substance in the third degree when he [or she] knowingly and unlawfully possesses . . . a narcotic drug with intent to sell it" (Penal Law § 220.16 [1]). As to count 3, "[a] person is guilty of criminal possession of a controlled substance in the fourth degree when he [or she] knowingly and unlawfully possesses . . . one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-eighth ounce or more" (Penal Law § 220.09 [1]). "Constructive possession may be established by circumstantial evidence and any conflict in the evidence regarding a defendant's dominion and control over the drugs in question creates issues of witness credibility, and the jury's determination in that regard must be accorded great deference" ( People v Garcia-Toro , 155 AD3d 1086 , 1086-1087 [3d Dept 2017] [internal quotation marks, brackets, ellipsis and citations omitted], lv denied 30 NY3d 1115 [2018]). "With respect to establishing a defendant's intent to sell drugs, the jury is allowed to infer, based on the amount of drugs at issue, that the defendant possessed them for the purpose [*6] of financial gain, rather than personal consumption" ( People v Patterson , 199 AD3d 1072 , 1075 [3d Dept 2021] [internal quotation marks and citations omitted], lv denied 37 NY3d 1163 [2022]). Testimony at trial established that multiple law enforcement officers from the narcotics unit responded to the motel after receiving a tip that defendant was selling drugs out of room 118. After inquiring with the motel as to who was renting room 118, the officers learned that the room was rented by a female and that a male was staying with her. The officers proceeded to room 118, knocked, and the girlfriend answered the door. According to a Warren County Sheriff's Department investigator, he recognized defendant and asked him to exit the motel room. Defendant was then taken into custody on the outstanding warrant for his arrest. Although disputed by the girlfriend at trial, officers testified that she verbally consented to their search of the motel room. During their search, officers found a black plastic bag on a dresser and an orange knife with what appeared to be cocaine residue. Upon searching the black plastic bag, the officers found four bundles of heroin, some loose bags of heroin and several tie-offs containing crack cocaine. The heroin was packaged in blue tinted glassine bags. In addition to the black plastic bag, the officers located a black backpack which contained five additional bags of heroin and some empty glassine envelopes as well as a "green tie-off rag," a digital scale and a plastic spoon. A hypodermic needle was also found inside a dresser drawer. Defendant's ID, along with his photograph, a medicine bottle of methadone with defendant's name on it and two cell phones were also recovered from the scene. A forensic scientist employed by the State Police testified that he analyzed the substances collected at the motel room. His analysis confirmed that the bags containing white material were cocaine with a total weight of more than an eighth of an ounce. Regarding the substance believed to be heroin at the motel room, the forensic scientist inventoried 53 blue glassine envelopes containing the powder suspected to be heroin as well as seven other glassine envelopes with residue. Testing revealed that the powder did contain heroin and after weighing, the forensic scientist determined that there was less than an eighth of an ounce of heroin. There were also 11 blue glassine envelopes recovered from inside the black backpack containing visible powder or residue, which the forensic scientist analyzed and determined was also heroin. A Warren County Sheriff's Department investigator testified that, based upon his training and experience, the glassine envelopes were typically used for packaging heroin for sale. The girlfriend testified, pursuant to a cooperation agreement with the People, that around January 18, 2014, she suggested that she and defendant travel to the Warren County area and do a "drug flip" to secure cash for defendant's anticipated [*7] needs for bail on an unrelated charge. She gave defendant approximately $800; he bought drugs and then they brought those drugs up to Warren County. The girlfriend was not with defendant when he purchased the drugs, but she "got a couple glances of them" when he was packaging them in his house the night that he bought them. When they arrived at the motel, the girlfriend paid for and reserved the room in her name because defendant "didn't want to use his ID." She indicated that the plan was to then sell the drugs and return to the New York City area. Having never lived in the Warren County area herself, the girlfriend did not have any contacts or friends to whom she could make such sales. The girlfriend acknowledged that defendant was a heroin addict. Despite his addiction, she maintained that defendant was the one in constant possession of the drugs throughout the weekend because she "trusted that he would do what he said he was going to do with them." However, on cross-examination, the girlfriend admitted that during a period where defendant was out of the motel room he texted her and instructed her that an individual would be coming by the motel room, she was to get a quantity of drugs from the bag inside the room and give it to this individual in exchange for $100. She secured the $100 in her own pocketbook following the transaction. She noted that during that period when defendant left to retrieve luggage from the Albany bus station, she was in possession of the drugs, which were left with her in the motel room. By two letters sent to defendant following his arrest, the girlfriend referred to defendant as her "slave," told him that she "own[ed]" him and that she had "strength and power to dictate and rule him." In his defense, defendant posited that it was the girlfriend who exercised "dominion and control over" the drugs in the black plastic bag found in the motel room. He testified that, prior to the police coming, the girlfriend kept the drugs in a locked box, suggesting that she was in fact in possession and had control of the drugs. He indicated that the girlfriend had a dominating personality in that she wanted to be in control, and she was a "pathological liar." While defendant admitted that the heroin found in the black backpack was his, he maintained that it was for personal use and not "getting ready to be packaged for some sort of sale." He emphasized that the different location of the drugs—i.e., in the plastic bag and the backpack—was evidence of different ownership. Defendant admitted that he "demanded" that the girlfriend give him bail money or he would tell her parents about her child. He testified that the girlfriend was able to obtain crack cocaine from her child's father, and that she indicated to defendant that they could sell that to get bail money for him. Defendant suggested to the girlfriend that people would not purchase the cocaine unless they could also purchase heroin, but he noted that this was a ploy to get heroin [*8] so he could get high himself when they got to Warren County. At that point, the girlfriend withdrew $500 or $600 to purchase the heroin. In this sense, defendant acknowledged that he was guilty of "conspiracy to distribute narcotics," but that was not what he was charged with. Evaluating the evidence in a neutral light and according deference to the jury's credibility determinations, we find the jury's conclusion that defendant possessed the drugs to be supported by the record. Further, the quantity of heroin—over 50 bags—and crack cocaine—approximately 13 grams—found in the motel room also suggested that defendant's intent was to sell the drugs ( see People v Garcia-Toro , 155 AD3d at 1087). That the crack cocaine weighed greater than one-eighth of an ounce and that there was a scale located in the motel room—suggesting that defendant knew the weights of the various drugs—supports the guilty verdict for criminal possession of a controlled substance in the fourth degree ( see Penal Law § 220.09 [1]; People v Nelson , 156 AD3d 1112 , 1115-1116 [3d Dept 2017], lv denied 31 NY3d 1151 [2018]). Thus, we do not find defendant's convictions to be against the weight of the evidence. Since we are ordering a new trial, we find it unnecessary to address defendant's remaining arguments. Aarons, J.P., Lynch, Ceresia and McShan, JJ., concur. Ordered that the judgment is reversed, on the law, counts 5 and 6 are dismissed, and matter remitted to the County Court of Warren County for a new trial on the remaining counts. Footnotes Footnote 1: The aggravated harassment charge was the basis for defendant's outstanding arrest warrant and is not relevant to this appeal. Footnote 2: The People concede that defendant's August 15, 2014 request to proceed pro se was "a timely and unequivocal assertion of [his] invocation of his right to" represent himself and that such request was a knowing and voluntary attempt to waive his right to counsel. Footnote 3: County Court's determination in that matter was reversed on appeal ( People v Poulos , 144 AD3d at 1391-1392). Footnote 4: Data extracted from these phones revealed, among other things, several text messages that, according to the testimony of Bruno, contained language indicating that defendant used the cell phones to sell drugs. Footnote 5: Because we are ordering dismissal of counts 5 and 6 and defendant concedes that the verdict as to count 4 was not against the weight of the evidence, we conduct a weight of the evidence review as to counts 1, 2 and 3 only.

[Assistant]
Defendant's right to self-representation was improperly denied. A court
cannot deny a defendant's request to proceed pro se merely because the court thinks it is a bad idea. Once a defendant makes an unequivocal
request, the court must engage in a colloquy with defendant to make a
determination whether defendant is making a knowing and intelligent
waiver of his right to counsel.


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Jimenez 2024 NY Slip Op 03765 [229 AD3d 568] July 10, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v Ricardo Jimenez, Appellant. Lipman & Booth, LLC, New York, NY (Christopher Booth of counsel), for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Virginia A. Marciano and Steven A. Bender of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Westchester County (David S. Zuckerman, J.), rendered November 29, 2021, convicting him of bribery in the second degree and rewarding official misconduct in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Following a jury trial, the defendant was convicted of bribery in the second degree and rewarding official misconduct in the second degree. The defendant's challenge to the legal sufficiency of the evidence supporting his convictions is unpreserved for appellate review ( see CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15 [5]; People v Danielson , 9 NY3d 342 , 348 [2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410 [2004]; People v Bleakley , 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero , 7 NY3d 633 [2006]). The County Court providently exercised its discretion in denying the defendant's applications for a mistrial based on the court's COVID-19 safety protocols. Contrary to the defendant's contention, the court's COVID-19 safety protocols did not deprive him of the ability to meaningfully participate in jury selection or violate his right to due process ( see People v Ramirez , 41 NY3d 406 , 411-412 [2024]). The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit. Barros, J.P., Wooten, Warhit and Ventura, JJ., concur.

[Assistant]
COVID-conscious protocols did not deprive defendant of the ability to
meaningfully participate in jury selection or violate his right to due process


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Bradshaw 2024 NY Slip Op 03761 [229 AD3d 563] July 10, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v Glenn Bradshaw, Appellant. Thomas R. Villecco, Jericho, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Edward D. Saslaw of counsel), for respondent. Appeals by the defendant from (1) a judgment of the County Court, Orange County (Craig S. Brown, J.), rendered January 20, 2022, convicting him of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree (three counts), under indictment No. 69/20, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered January 20, 2022, revoking a sentence of probation previously imposed by the same court under indictment No. 193/18, upon a finding that he had violated conditions thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a controlled substance in the third degree. Ordered that the judgment and the amended judgment are affirmed. The defendant's trial took place at a time when COVID-19-related protocols required individuals in the courtroom, including the defendant, to wear a face mask. The defendant contends that the prosecutor violated his right to a fair trial when the prosecutor told the jury, during summation, that it may send a note asking the County Court to direct the defendant to remove his mask to show his face. However, as the defendant did not object to the summation remark at issue or make a timely motion for a mistrial on the specific grounds now asserted on appeal, his contention that the prosecutor's summation remark deprived him of a fair trial is unpreserved for appellate review ( see CPL 470.05 [2]; People v Ambers , 115 AD3d 671 , 672 [2014]). To the extent that the defendant's claim that he did raise an objection to the summation remark at issue is based on matter dehors the record, it is not reviewable on direct appeal ( see People v Boyce , 118 AD3d 1016 , 1017 [2014]). In any event, the prosecutor's summation remark was responsive to defense counsel's summation comments ( see People v Halm , 81 NY2d 819, 821 [1993]; People v Komynar , 210 AD3d 698 , 700 [2022]). To the extent that the prosecutor's remark was improper, it was not so flagrant or pervasive as to have deprived the defendant of a fair trial ( see People v Komynar , 210 AD3d at 700). Contrary to the defendant's contention, the record does not reflect that the County Court exercised any retaliation or vindictiveness against the defendant for electing to proceed to trial under indictment No. 69/20 ( see People v Garcia , 222 AD3d 659 , 660 [2023]; People v Hunter , 151 AD3d 1077 [2017]). Moreover, the sentences imposed under indictment Nos. 193/18 and 69/20 were not [*2] excessive ( see People v Suitte , 90 AD2d 80 [1982]). Brathwaite Nelson, J.P., Maltese, Wan and Landicino, JJ., concur.

[Assistant]
Rejects argument that prosecutor violated defendant's right to a fair trial
when the prosecutor told the jury, during summation, that it could send a
note asking the County Court to direct the defendant to remove his mask to
show his face. Prosecutor's summation remark was responsive to defense
counsel's summation comments.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Yeager 2024 NY Slip Op 03846 [229 AD3d 942] July 18, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 4, 2024 [*1] The People of the State of New York, Respondent, v Jonah P. Yeager, Appellant. Dennis J. Lamb, Troy, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent. Appeal from a judgment of the County Court of Clinton County (Timothy J. Lawliss, J.), rendered June 2, 2021, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree. Defendant waived indictment and agreed to plead guilty to criminal possession of a controlled substance in the third degree in satisfaction of a four-count superior court information. Under the terms of the plea agreement, defendant was to be sentenced either to 364 days in jail or to six months in jail and five years of probation, and he was required to waive the right to appeal. During the plea colloquy, County Court admonished defendant that it would not be bound by the agreed-upon sentencing commitment if defendant violated local, state or federal law between the date of the plea and the date of sentencing, and that the maximum sentence he could then receive as the result of such a violation would be nine years in prison followed by two years of postrelease supervision. At sentencing, County Court noted that defendant stated during his interview with the Probation Department as part of its presentence investigation that he had been using cocaine daily up until a couple of days before the interview. For failing to comply with the conditions of the plea agreement by violating state law, County Court sentenced defendant to an enhanced prison term of three years followed by two years of postrelease supervision. Defendant appeals, and we affirm. Initially, we are unpersuaded by defendant's contention that he did not validly waive his right to appeal because his attorney did not sufficiently review the written waiver with him. The record reveals that, prior to the plea proceeding, defense counsel had gone over all of the contents of the appeal waiver with defendant on the telephone. Further, while defendant and his attorney were not in the same physical location during the plea hearing given that it was conducted virtually as a result of the COVID-19 pandemic, defendant was provided a copy of the written appeal waiver, read it in its entirety, confirmed that he fully understood it and indicated that he had no questions about it either for his attorney or the court. Defendant then freely signed the written waiver of appeal. Under these circumstances, and noting that " 'there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights' " ( People v Smith , 210 AD3d 1207 , 1208 [3d Dept 2022], quoting People v Johnson , 14 NY3d 483 , 486 [2010]; see People v Daniels , 193 AD3d 1179 , 1179-1180 [3d Dept 2021]), we find that defendant's argument is without merit. Given the valid appeal waiver, and noting that County Court advised defendant of the consequences of violating the law prior to sentencing, defendant's challenge to the postrelease supervision component of the enhanced sentence as unduly harsh and severe is precluded ( see People v Trent , 206 AD3d 1355 , 1356 [3d Dept 2022]; People [*2] v Wilson , 194 AD3d 1195 , 1196 [3d Dept 2021]). In any event, we perceive no basis to disturb that aspect of the sentence ( see People v Buchas , 226 AD3d 1217 , 1218 [3d Dept 2024]). Aarons, J.P., Lynch, Ceresia, McShan and Mackey, JJ., concur. Ordered that the judgment is affirmed.

[Assistant]
Court
upheld validity of plea and waiver of appeal. Defendant and his attorney
were not in the same physical location during the plea hearing, conducted
virtually because of the COVID-19 pandemic. Defendant was provided a
copy of the written appeal waiver, read it in its entirety, confirmed that he
fully understood it and indicated that he had no questions about it either
for his attorney or the court. Defendant then freely signed the written
waiver of appeal.