[User]
Create a takeaway summary for the following court decision, focusing on the topic of Vehicle stops & searches and the subtopic of Length of stop. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Thomas 2024 NY Slip Op 03319 [42 NY3d 236] June 18, 2024 Cannataro, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 16, 2024 [*1] The People of the State of New York, Respondent, v Kevin L. Thomas, Appellant. Argued April 17, 2024; decided June 18, 2024 People v Thomas , 211 AD3d 1326 , reversed. {**42 NY3d at 238} OPINION OF THE COURT Cannataro, J. The question presented by this appeal is whether the courts below erred in denying defendant's motion to suppress a large quantity of heroin recovered from the backseat of his car during a warrantless search by defendant's parole officer, who had been contacted by police in the course of a traffic stop. Because the lower courts applied an incorrect legal standard in analyzing whether the traffic stop was unreasonably prolonged, we reverse and remit to County Court for further proceedings. The testimony presented at the suppression hearing established that defendant, who was on lifetime parole for prior narcotics offenses, was observed driving outside his county of residence by an off-duty police officer who recognized defendant's distinctive vehicle and license plate. The off-duty officer, who was familiar with defendant, suspected that defendant was in violation of a condition of his parole requiring him to stay within a certain geographic area and so contacted an on-duty officer in the vicinity of defendant's residence. The on-duty officer knew defendant to be on parole, and suspected that he was in violation of his parole conditions because he was outside of the county and out after the standard parole curfew time. Based on these facts and defendant's history, he believed defendant was "possibly transporting drugs." The officer and his partner waited for defendant to return to the jurisdiction at a location where they could observe him exiting the highway. When defendant exited the highway, the officers followed defendant's vehicle, observed him commit a traffic infraction by failing to come to a complete stop at a stop sign and initiated a traffic stop at about 9:20 p.m. Defendant had pulled [*2] into his driveway by the time he stopped his vehicle and the ensuing encounter was captured on one officer's body camera. Defendant readily admitted committing the traffic infraction, claiming he was distracted because he was talking on the phone, and provided his driver's license, which the officer confirmed was valid. The officer then questioned defendant about where he was coming from and whether he was in violation of his curfew. Defendant provided a series of inconsistent responses that the officer knew to be false. Defendant also {**42 NY3d at 239} appeared nervous and, when asked, withheld consent to search his vehicle. The officers repeatedly stated that if he did not give consent, they would call his parole officer to search the car. The police attempted to have a canine unit come to the scene to conduct a sniff of the exterior of the vehicle, but none was available. Then, at about 9:40 p.m., the police contacted defendant's parole officer to advise him of what had transpired up to that point. The parole officer indicated that he would report to the scene to investigate. Defendant was frisked, his personal belongings were removed and he was placed, without handcuffs, in the back of the patrol car for officer safety purposes to await his parole officer's arrival. Upon arrival, defendant refused to answer his parole officer's questions, despite a parole condition requiring him to do so. The parole officer searched defendant's vehicle and discovered 2,000 glassines of heroin inside a shoebox. In support of his motion to suppress, defendant argued that the People failed to prove that the officers had the requisite level of suspicion to extend the traffic stop after its initial basis—the traffic infraction—was exhausted, asserting that a traffic stop cannot be extended for the purpose of investigating an unrelated crime for which the officer lacked reasonable suspicion. [FN1] He also argued that the parole officer's warrantless search of his vehicle was not justified, as the parole officer was acting as an agent of the police. County Court denied the motion, finding that the initial stop was justified by the police officer's observation of the traffic infraction. The court further found that, under the totality of the circumstances, including defendant's parole status and the false responses he gave to the police officers' questions, the police had a founded suspicion of criminality justifying the continued detention of defendant in order to contact his parole officer. The court went on to find that, based on the credible evidence of defendant's parole violations, the ensuing search of the vehicle by the parole officer was rationally and reasonably related to that officer's parole duties. Defendant was convicted, upon his guilty plea, of criminal possession of a controlled substance in the third degree. The {**42 NY3d at 240} Appellate Division affirmed, concluding that suppression was properly denied as the traffic stop, which was justified at its inception, was not unlawfully prolonged (211 AD3d 1326 [3d Dept 2022]). The Court opined that defendant's inconsistent and false responses, considered with the apparent violations of the conditions of his parole and his nervous demeanor, provided a founded suspicion of criminality, allowing the officers to extend the stop to request consent to search or await a canine sniff. The Court further concluded that, once the police officers learned that the canine unit was unavailable, it was reasonable for them to contact defendant's parole officer and detain defendant pending the parole officer's arrival. Finally, the Court determined that the subsequent warrantless search of the vehicle was substantially related to the performance of the parole officer's duty in the circumstances. Two Justices dissented and would have granted suppression, concluding that defendant was detained beyond what was reasonable under the circumstances because the police officers lacked a founded suspicion that criminality was afoot after the justification for the traffic stop had been exhausted. An Appellate Division Justice granted defendant leave to appeal (39 NY3d 1081 [2023]). The proper standard for detaining an individual beyond "the time reasonably required" to complete a traffic stop is reasonable suspicion ( Rodriguez v United States , 575 US 348, 354-355 [2015] [internal quotation marks omitted]; see People v Banks , 85 NY2d 558, 562 [1995]). Given that a traffic stop is a "limited seizure" of the occupants of a vehicle, "[f]or a traffic stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance" ( Banks , 85 NY2d at 562). A "continued involuntary detention of [a] defendant . . . constitute[s] a seizure in violation of their constitutional rights, unless circumstances coming to [the officer's] attention following the initial stop furnish[ ] . . . reasonable suspicion that they were engaged in criminal activity" ( id. [emphasis added]). Likewise, the United States Supreme Court has held that "[a] seizure justified only by a police-observed traffic violation . . . become[s] unlawful if it is prolonged beyond the time [*3] reasonably required to complete th[e] mission of issuing a ticket for the violation" ( Rodriguez , 575 US at 350-351 [internal quotation marks and citation omitted]). In this {**42 NY3d at 241} vein, although that "mission" encompasses " 'ordinary inquiries incident to [the traffic] stop,' " it does not include additional measures designed to detect evidence of criminality (575 US at 355, quoting Illinois v Caballes , 543 US 405, 408 [2005]). Thus, an otherwise lawful traffic stop may not be prolonged "absent the reasonable suspicion ordinarily demanded to justify detaining an individual" (575 US at 355). Here, there is record support for the affirmed finding that the traffic stop was justified at its inception, based upon the police officer's observation that defendant committed a traffic infraction ( see People v Hinshaw , 35 NY3d 427 , 430 [2020]). However, the courts below evaluated whether the traffic stop was prolonged beyond the time reasonably required for its completion under the founded suspicion standard applicable to the common-law right to inquire ( see People v De Bour , 40 NY2d 210, 223 [1976]), a lesser standard than the reasonable suspicion necessary to prolong a traffic stop. As a result, remittal is necessary to allow for consideration of this issue under the proper standard. [FN2] We note that although "a parolee does 'not surrender [their] constitutional rights against unreasonable searches and seizures' merely by virtue of being on parole," " 'in any evaluation of the reasonableness of a particular search or seizure,' whether undertaken by parole or police officers, 'the fact of defendant's status as a parolee is always relevant and may be critical' " ( People v McMillan , 29 NY3d 145 , 148-149 [2017], quoting People v Huntley , 43 NY2d 175, 181 [1977]). The issue is whether, under the totality of the circumstances, including {**42 NY3d at 242} defendant's lifetime parole status and the officers' awareness that he was likely in violation of multiple conditions of his parole, "reasonable suspicion of criminal activity justified detaining [defendant] beyond completion of the traffic infraction investigation" ( Rodriguez , 575 US at 358). As stated, "[a] seizure justified only by a police-observed traffic violation . . . become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation" ( id. at 350-351 [internal quotation marks and citation omitted]). Accordingly, the order of the Appellate Division should be reversed and the matter remitted to County Court for further proceedings in accordance with this opinion. Rivera, J. (dissenting). The record on appeal establishes that the officers had a lawful basis to stop defendant Kevin Thomas for a traffic violation, and reasonable suspicion that he had engaged in criminal activity, thereby justifying his prolonged detention until his parole officer arrived and searched defendant's vehicle. Therefore, I would affirm the Appellate Division rather than remit for further proceedings. I. I agree with the majority's summary of the facts and procedural history ( see majority op at 238-240). I also agree with the majority's articulation of the standard applicable to defendant's motion to suppress ( see id. at 240-241). A traffic stop is "[l]ike a Terry stop" ( Rodriguez v United States , 575 US 348, 354 [2015]), where "an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop" and "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time" ( Florida v Royer , 460 US 491, 500 [1983]). Thus, "[f]or a traffic stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance," and a "continued involuntary detention of [a] defendant . . . constitute[s] a seizure in violation of their constitutional rights, unless circumstances coming to [the officer's] attention following the initial stop furnished . . . reasonable suspicion that they were engaged in criminal activity" ( People v Banks , 85 NY2d 558, 562 [1995]; see also {**42 NY3d at 243} Rodriguez , 575 US at 355). Although, as the majority states, the Appellate Division "applied an incorrect legal standard" in affirming the denial of defendant's motion to suppress (majority op at 238), I conclude that under the unique circumstances presented here, remittal is unwarranted because the facts are undisputed, the legal issue is resolved by application of established precedent and defendant's claim is meritless. Nothing bars final resolution in this Court and thus the prudent course is to preserve judicial resources and affirm the Appellate Division. [*4] II. As a threshold matter, this appeal falls outside the LaFontaine / Concepcion rule that the intermediate appellate court—and, in turn, we—may not review issues " 'either decided in an appellant's favor, or not ruled upon, by the trial court' " ( People v Concepcion , 17 NY3d 192 , 195 [2011], quoting People v LaFontaine , 92 NY2d 470, 474 [1998]). Members of this Court have roundly criticized the rule ( see Concepcion , 17 NY3d at 201 [Smith, J., joined by Pigott, J., dissenting] [" LaFontaine . . . was a mistake, and a serious one . . . I had hoped that this would provide the occasion for giving that case a decent burial, but the majority ill-advisedly resurrects it"]; People v Ingram , 18 NY3d 948 , 949 [2012, Pigott, J., joined by Smith, J., dissenting] ["For the reasons that Judge Smith stated in his dissent in . . . Concepcion . . . , I remain convinced that . . . LaFontaine . . . should be overruled"]). And while the rule survives, we have, over recent years, narrowly construed it to mitigate nonsensical results ( see People v Nicholson , 26 NY3d 813 , 817 [2016] ["(T)he Appellate Division does not exceed its statutory authority or run afoul of our decisions in . . . LaFontaine . . . and . . . Concepcion . . . when it relies on the record to discern the unarticulated predicate for the trial court's evidentiary ruling"]; People v Garrett , 23 NY3d 878 , 885 n 2 [2014] [distinguishing between "separate alternative grounds for decision" which the LaFontaine rule covers and components of a "single multipronged legal ruling" which it does not]; id. at 899 [Smith, J., concurring] [endorsing the Garrett "majority's limitation of the rule"]). The Appellate Division majority, like County Court, rejected defendant's claims that the drugs found in his vehicle should have been suppressed, concluding that the officers had a founded suspicion of criminality based on defendant's conduct {**42 NY3d at 244} before the traffic stop, his statements in response to police questioning, and his status as a parolee. The Appellate Division dissent correctly references this Court's decision in Banks for the proposition that " ' "the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance" ' " (211 AD3d at 1332, quoting People v Blanche , 183 AD3d 1196 , 1198 [3d Dept 2020], quoting Banks , 85 NY2d at 562). Further, both the suppression court and the Appellate Division majority also correctly referenced People v McMillan , and People v Huntley , for the notion that " 'in any evaluation of the reasonableness of a particular search or seizure,' . . . 'the fact of defendant's status as a parolee is always relevant and may be critical' " ( McMillan , 29 NY3d 145, 148-149 [2017], quoting Huntley , 43 NY2d 175, 181 [1977]). However, the suppression court and both the Appellate Division majority and dissent all evaluated whether the officers' actions here were supported by founded suspicion ( see 211 AD3d at 1330; id. at 1332-1333 [Aarons, J., dissenting]). These references to "founded suspicion" appear to have their genesis in a different Banks decision, issued by the Third Department, People v Banks (148 AD3d 1359 , 1360 [3d Dept 2017]). In that decision, the Appellate Division cited to our 1995 decision in Banks for the erroneous proposition that officers must have a "founded suspicion that criminal activity is afoot" to justify extending the scope of the detention beyond the circumstances giving rise to a vehicular stop ( Banks , 148 AD3d at 1360). But this Court in Banks held that the defendant in that case was illegally detained because "defendant's nervousness and the innocuous discrepancies in his and [a codefendant's] answers to the Trooper's questions regarding the origin, destination and timing of their trip did not alone, as a matter of law, provide a basis for reasonable suspicion of criminality" (85 NY2d at 562, citing People v Milaski , 62 NY2d 147, 156 [1984]). Notably, in his post-suppression hearing memorandum, defendant conceded that the officer had probable cause to stop him for failing to stop at the stop sign, but argued that "[a] police officer m[a]y not artificially extend the detention" incident to a traffic stop "in order to investigate some unrelated crime or offense for which the officer does not have reasonable suspicion or probable cause." On appeal, both defendant and the prosecution refer to the lesser "founded suspicion" standard {**42 NY3d at 245} at different points in their briefing. As we reaffirm today, that is not the proper standard ( see majority op at 240). However, the parties also expressly discuss whether the officers had reasonable suspicion to prolong defendant's detention. Defendant, relying on Banks and Milaski , repeats the argument he asserted before the Appellate Division that "[i]t was during the unlawful prolonged detention of defendant that the police officers removed property from defendant's pockets and found receipts from Popeye's and White Castle. It is well settled that apparent nervousness and inconsistent answers to police questioning about one's whereabouts do not alone provide a basis for reasonable suspicion of criminal activity upon which further detention is justified ( see People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 U.S. 868; People v Milaski, 62 NY2d 147, 156 [1984]). Thus, even if defendant was agitated or nervous and gave inconsistent answers to [the officer's] questioning of his whereabouts prior to the stop, such [*5] actions do not provide a founded suspicion of criminality to justify a prolonged detention of defendant. Consequently, the prolonged detention was unreasonable, and all evidence obtained as a result of the detention, including the heroin, must be suppressed and the indictment dismissed." The prosecution, as before the Appellate Division, contends that "defendant's detention for less than 30 minutes was based upon reasonable suspicion that criminal activity was afoot" because he "was seen outside the county by a seasoned police officer, he was out past his curfew, he possessed fast-food wrappers and receipts from restaurants outside the county date-stamped and timestamped that afternoon, he made up four false explanations about where he had been coming from, exhibited extremely nervous behavior, including sweating profusely and pacing, and finally, as time went on, the defendant became disorderly." Similarly, before us, the prosecution maintains that, once defendant lied that "he [had come] from Rochester, officers had reasonable suspicion of criminality sufficient to detain him {**42 NY3d at 246} through [the parole officer's] investigation." Describing the escalating level of suspicion, the prosecution argues specifically: "[Defendant's] first two lies—(1) that he had dropped off his cousin, and (2) that he had been driving around looking for his wife—could be explained away as [him] attempting to conceal mere technical parole violations. But once [he] lied that he was in Rochester—which would be its own parole violation because Rochester is outside Chemung County—the level of suspicion was elevated further. Officers now had additional reason to suspect he was lying to cover up not just a technical parole violation but an actual crime. Combined with his highly nervous demeanor and the fact that he was already on parole for narcotics offenses, this gave officers reasonable suspicion that criminal activity was afoot. This reasonable suspicion gave officers cause to detain him pending [the parole officer's] arrival." The majority and I agree that defendant's detention must be justified by the more demanding reasonable suspicion standard—as opposed to founded suspicion. Thus, defendant, as the appellant, is not placed in a worse position by application of the correct standard here. Further, the prosecution argues that defendant's responses to the officer's permissible questioning eventually provided the officers with reasonable suspicion of criminal activity. County Court, confronted with defendant's claim that the officers lacked "reasonable suspicion or probable cause" to extend his detention, specifically ruled, adversely to defendant, on the constitutionality of this action. The Appellate Division affirmed, albeit under an erroneous founded suspicion standard. The Court's reminder that the proper standard is reasonable suspicion works in defendant's favor. In sum, defendant and the prosecution at different points have referenced the correct legal standard, that standard is more favorable to defendant, and the lower courts decided adversely to defendant on the specific issue he raised. [FN1] Therefore, the LaFontaine / Concepcion rule is no bar to addressing the constitutionality of defendant's detention, and accordingly {**42 NY3d at 247} obviates any need for remittal ( Concepcion , 17 NY3d at 195). [*6] III. On the merits, the record establishes that an officer familiar with defendant, his parole status, and his history of involvement with narcotics observed defendant's car driving in Pennsylvania—an apparent violation of a parole condition that defendant not leave Chemung County. The officer communicated his observations to another officer back in Syracuse, who also was familiar with defendant's criminal history and parole status. This second officer observed defendant drive back into Chemung County and followed him as he drove to a delicatessen before observing him run through a stop sign and drive into his own nearby driveway. [FN2] The officer then approached defendant, accompanied by another officer wearing a body cam. Defendant admitted he ran the stop sign, but then volunteered contradictory information about whether he had a curfew as a parolee before lying about his whereabouts in response to the officer's question about where he was coming from—accounts that changed several times once the officer responded that he knew defendant was not telling the truth based on what the officer observed once defendant exited the highway. The officers' stop of defendant's vehicle was supported by probable cause based on their observations of a traffic violation ( see People v Hinshaw , 35 NY3d 427 , 430 [2020]). Ordinarily, a police officer would have no lawful basis to detain a driver suspected of a traffic violation for an extended duration based on inaccurate responses to questions about their whereabouts alone because, absent more, and "as a matter of law," such does not "provide a basis for reasonable suspicion of criminality" ( Banks , 85 NY2d at 562, citing Milaski , 62 NY2d at 156). Here, however, the officers possessed reasonable suspicion of criminal activity given defendant's false answers, combined with the officers' personal knowledge of his criminal history, parole status, and apparent parole violations for travel outside Chemung County beyond his curfew time ( see {**42 NY3d at 248} Rodriguez , 575 US at 354-355). [FN3] Put another way, if defendant was unknown to the officers, then "nervousness and the innocuous discrepancies in his . . . answers" ( Banks , 85 NY2d at 562) would not have justified the officers' prolonged detention after resolving the Vehicle and Traffic Law violation because driving through a stop sign does not provide reasonable suspicion that the driver has committed or is about to commit a crime. But, here, defendant was known to be on parole for drug-related conduct and was observed violating at least two conditions of his parole. That highly relevant information provided the requisite level of suspicion to hold defendant until his parole officer arrived. The parole officer's subsequent warrantless search of defendant's vehicle which led to the discovery of the illegal drugs was likewise constitutional because it was "rationally and reasonably related to the performance of the parole officer's duties" ( People v McMillan , 29 NY3d 145 , 148 [2017]). Specifically, the parole officer "has an obligation to detect and to prevent parole violations for the protection of the public from the commission of further crimes; . . . to prevent violations of parole and to assist [the parolee] to a proper reintegration into [their] community" ( People v Huntley , 43 NY2d 175, 181 [1977]). The record establishes the parole officer acted reasonably to discharge these duties. IV. I would affirm the Appellate Division and end the matter now rather than remit for what will be a perfunctory determination by that Court that the officers were justified in both the stop and subsequent detention. Therefore, while I join fully the majority's articulation of the proper standard to be applied, I dissent from its decision to delay that application in defendant's case. Chief Judge Wilson and Judges Garcia, Singas, Troutman and Halligan concur. Judge Rivera dissents and votes to affirm in an opinion. {**42 NY3d at 249} Order reversed and case remitted to County Court, Chemung County, for further proceedings in accordance with the opinion herein. Footnotes Footnote 1: Defendant also sought to suppress his statements to law enforcement made after the justification for the traffic stop had been exhausted, as obtained in violation of his Miranda rights. Footnote 2: The dissent's suggestion that the existence of reasonable suspicion to prolong the traffic stop can be decided by this Court in the first instance because that standard is more favorable to defendant than the incorrect standard applied by the courts below finds no support in LaFontaine , Concepcion , or their progeny ( see People v Concepcion , 17 NY3d 192 [2011]; People v LaFontaine , 92 NY2d 470 [1998]). Because neither the suppression court nor the Appellate Division applied the reasonable suspicion standard to the facts, we are precluded from reaching that issue here ( see CPL 470.15 [1]; 470.35 [1]; People v Ingram , 18 NY3d 948 , 949 [2012]). Whether reasonable suspicion exists is a mixed question of law and fact, and our review of that issue is limited to whether record support exists for the lower courts' determination ( see People v Harrison , 57 NY2d 470, 477 [1982]). Contrary to the dissent, we express no opinion on the mixed question of whether reasonable suspicion existed, and we would not characterize the lower courts' review of this issue as "perfunctory" or a mere formality (dissenting op at 248) given the important role of these courts in determining suppression issues in the first instance. Footnote 1: The majority predicates its disagreement with my conclusion that LaFontaine and its progeny do not bar our consideration of whether the police had reasonable suspicion before extending the seizure exclusively on the second of these three reasons ( see majority op at 241 n 2). But, as the above shows, my conclusion follows from all three premises taken together. Footnote 2: Defendant has never suggested that a different analysis controls because he had parked in his driveway when the officers approached him. Therefore, the relevance of this fact to his challenge is not before us. Footnote 3: This question is not a "mixed" one, as the majority asserts ( see majority op at 241 n 2) because neither party disputes the facts found below or inferences to be drawn therefrom, and the only issue is whether, "as a matter of law, the officers' observations could . . . form the 'minimum showing necessary to establish' a reasonable suspicion that defendant had committed or was about to commit a crime" ( People v Messano , 41 NY3d 228 , 235 [2024], quoting People v McRay , 51 NY2d 594, 601 [1980]).

[Assistant]
A traffic stop
cannot be extended for the purpose of investigating an unrelated crime for
which the officer lacked reasonable suspicion. Lower courts used less
demanding "founded suspicion" analysis. Conviction reversed; case sent
back to trial court for determination of suppression motion under proper
standard.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of SORA/SARA/SOMTA and the subtopic of Assessment of points/departures. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Bellinger 2024 NY Slip Op 06407 [233 AD3d 1331] December 19, 2024 Appellate Division, Third Department 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 Kristin M. Bellinger, Appellant. Danielle Neroni Reilly, Albany, for appellant. Lorraine C. Diamond, District Attorney, Fonda (Katherine Ehrlich of counsel), for respondent. Clark, J. Appeal from an order of the County Court of Montgomery County (Chad W. Brown, J.), entered June 22, 2023, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act. In 2023, defendant pleaded guilty to criminal sexual act in the second degree, in satisfaction of an indictment that also charged her with three counts of rape in the second degree, and was sentenced to six months in jail, to be followed by 10 years of postrelease supervision. The charges stem from when defendant, who was a 35-year-old special education teacher in a middle school BOCES program, had sexual intercourse with the victim, an eighth-grade student enrolled in two of her classes, on multiple occasions beginning when he was 13 years old. Defendant briefly dated the victim's father, with whom the victim resided, and sexually abused the victim when she would go to their house, often when the father was absent, to help the victim with schoolwork; later, the abuse continued at her house in another county. In anticipation of defendant's release from jail, the People prepared a risk assessment instrument (hereinafter RAI) in accordance with the Sex Offender Registration Act ( see Correction Law art 6-C [hereinafter SORA]) that assigned defendant a total of 125 points, including 20 points under risk factor 7 based upon her professional relationship with the victim, presumptively classifying defendant as a risk level three sex offender. The People argued that, in the event that County Court were to calculate defendant's presumptive risk level to be a risk level two, an upward departure to risk level three would be warranted. Following a SORA hearing, the court assigned a total of 85 points, including 20 points under risk factor 7, and classified defendant as a risk level two sex offender, declining the People's request for an upward departure. Defendant appeals. Defendant argues that County Court erred in assigning 20 points under risk factor 7, on the premise that she did not establish a relationship with the victim in a professional setting or for purposes of sexually abusing him, contending that her relationship with the victim began as a "familial" one while she was dating his father, and that no abuse occurred until after she had already formed that relationship with the victim. In establishing an offender's appropriate risk level under SORA, "[t]he People 'bear the burden of proving the facts supporting the determinations' by clear and convincing evidence" ( People v Pettigrew , 14 NY3d 406 , 408 [2010], quoting Correction Law § 168-n [3]). "The Guidelines provide that 20 points should be assessed under risk factor 7 if [, as relevant here,] 'the offender's crime . . . arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of that relationship' " ( People v Cook , 29 NY3d 121 , 125 [2017] [brackets omitted], quoting Sex Offender Registration Act: Risk Assessment Guidelines [*2] and Commentary, risk factor 7 [2006]). It has been recognized that "factor 7 . . . is meant to focus on the relationship, or absence of a relationship, between the offender and his [or her] victim before the crime was committed " ( People v Johnson , 11 NY3d 416 , 420 [2008] [emphasis added]; accord People v Cook , 29 NY3d at 126). The evidence reflects that, for months prior to the crimes here, defendant was the victim's classroom teacher; notwithstanding her later personal relationship with the victim's father, defendant tutored the victim in their home, often when the father worked late. As there was an established teacher-student relationship between defendant and the victim and the trust between them had been formed in that professional capacity, she breached that trust by sexually abusing the victim, and thus, County Court was fully justified in assessing 20 points under risk factor 7 ( see People v Briggs , 86 AD3d 903 , 904 [3d Dept 2011]; see also People v Sick , 186 AD3d 1733 , 1733-1734 [2d Dept 2020], lv denied 36 NY3d 904 [2020]; People v Somodi , 170 AD3d 1056 , 1057-1058 [2d Dept 2019]; People v Singh , 165 AD3d 444 , 444 [1st Dept 2018], lv denied 32 NY3d 914 [2019]; People v Cuesta , 65 AD3d 1113 , 1114 [2d Dept 2009]). Defendant further contends that she was denied the effective assistance of counsel in that defense counsel failed to request a downward departure based upon certain claimed mitigating factors. "[T]o establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct" ( People v Lopez , 226 AD3d 1165 , 1166 [3d Dept 2024] [internal quotation marks and citations omitted], lv denied 42 NY3d 905 [2024]; see People v Sposito , 37 NY3d 1149 , 1150 [2022]). A defendant seeking a downward departure must "demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v Waterbury , 231 AD3d 201 , 203 [3d Dept 2024] [internal quotation and citations omitted]). To the extent that defendant faults her counsel for conceding 25 points under risk factor 2, which addressed the nature of the sexual contact, the victim's account and defendant's guilty plea supported the finding that defendant subjected the victim to sexual intercourse—as well as other sexual contact—more than 10 times, fully supporting the assessment of 25 points. Given the age disparity between defendant and the victim and the surrounding circumstances, the RAI did not result in an overassessment on the premise that the victims' inability to consent was due to age, and counsel was not ineffective for failing to argue that these facts warranted a downward departure ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 9 [2006]; compare People v Wilcox , 221 [*3] AD3d 1370, 1372 [3d Dept 2023]). Defendant's lack of criminal history was taken into account in the RAI in that no points were assessed under risk factor 9 and, likewise, she was not assessed points under risk factor 14 in recognition of her 10-year period of postrelease supervision. Accordingly, these factors could not have provided a basis for a downward departure ( see People v Green , 201 AD3d 1137 , 1139 [3d Dept 2022], lv denied 38 NY3d 906 [2022]). In light of the foregoing, and given that defense counsel made appropriate objections at the SORA hearing and successfully challenged the assessment of points under risk factors 1, 6 and 12, resulting in a risk level two classification—rather than the People's recommendation for a presumptive risk level three designation or an upward modification to risk level three—we are satisfied that defendant received meaningful representation ( see id. at 1140; see also People v Lopez , 226 AD3d at 1167). Defendant's remaining claims have been considered and found to be without merit. Garry, P.J., Egan Jr., Pritzker and Mackey, JJ., concur. Ordered that the order is affirmed, without costs.

[Assistant]
Lower court properly assigned 20 points under Risk Factor 7 (crime arose
in the context of a professional or a vocational relationship between the
defendant and the victim) where defendant was victim's special ed teacher.
Although defendant had a short-lived relationship with her student-victim's
father,
"an established teacher-student relationship between defendant and
the victim, and the trust between them, had been formed in that
professional capacity.
"


[User]
Create a takeaway summary for the following court decision, focusing on the topic of SORA/SARA/SOMTA and the subtopic of Assessment of points/departures. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v McKay 2024 NY Slip Op 06067 [233 AD3d 715] December 4, 2024 Appellate Division, Second Department 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 Trevor McKay, Appellant. Clare J. Degnan, White Plains, NY (Salvatore A. Gaetani of counsel), for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Jill Oziemblewski and Raffaelina Gianfrancesco of counsel), for respondent. Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), dated January 12, 2023, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. Ordered that the order is affirmed, without costs or disbursements. In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the Supreme Court, after a hearing, designated the defendant a level three sex offender based upon the assessment of a total of 115 points on the risk assessment instrument and the denial of the defendant's request for a downward departure from his presumptive risk level. The defendant appeals. A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" ( People v Wyatt , 89 AD3d 112 , 128 [2011]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; People v Gillotti , 23 NY3d 841 , 861 [2014]). "If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism" ( People v Khan , 182 AD3d 613 , 614 [2020]; see People v Gillotti , 23 NY3d at 861). Although debilitating illness may constitute a basis for a downward departure ( see Guidelines at 5; People v Stevens , 55 AD3d 892 , 893-894 [2008]), here, the defendant failed to demonstrate by a preponderance of the evidence that his physical condition minimized his risk of recidivism, particularly since the health issues associated with his condition existed at the time the defendant committed the underlying offense ( see People v Rodriquez , 179 AD3d 957 , 958 [2020]; People v Iliff , 132 AD3d 831 , 831 [2015]). Moreover, while the assessment of points under risk factors 3 and 7 may result in an overassessment of a defendant's risk to public safety in some cases involving offenders who possessed child pornography ( see People v Gillotti , 23 NY3d at 860; People v Johnson , 11 NY3d 416 , 421 [2008]), a downward departure is not warranted as a matter of discretion under the circumstances [*2] of this case ( see People v Bustillo , 220 AD3d 814 , 815 [2023]; People v Galeana , 208 AD3d 1372 , 1373 [2022]). Accordingly, the Supreme Court properly designated the defendant a level three sex offender. Duffy, J.P., Miller, Dowling and Hom, JJ., concur.

[Assistant]
Debilitating illness may constitute a basis for a downward departure, but
this defendant "failed to demonstrate by a preponderance of the evidence
that his physical condition minimized his risk of recidivism, particularly
since the health issues associated with his condition existed at the time the
defendant committed the underlying offense....
"


[User]
Create a takeaway summary for the following court decision, focusing on the topic of SORA/SARA/SOMTA and the subtopic of New hearing required' because of lack of notice to defendant. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Johns 2024 NY Slip Op 04640 [230 AD3d 1478] September 26, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 13, 2024 [*1] The People of the State of New York, Respondent, v Gary Johns Jr., Appellant. Rural Law Center of New York, Inc., Plattsburgh (Lora J. Tryon of counsel), for appellant. Patrick A. Perfetti, District Attorney, Cortland, for respondent. Mackey, J. Appeal from an order of the County Court of Cortland County (Julie A. Campbell, J.), entered July 28, 2020, which denied defendant's application pursuant to Correction Law § 168-o (2) for reclassification of his sex offender risk level status. In 1999, defendant was convicted upon his plea of guilty of the reduced charge of attempted rape in the first degree and was sentenced to a prison term of 5 1/2 years, to be followed by five years of postrelease supervision. Upon his release from incarceration in 2003, defendant was classified as a risk level two sex offender and designated a sexually violent offender. In 2020, defendant applied, for the fifth time, for a modification of his risk level classification pursuant to Correction Law § 168-o (2), seeking to be reclassified as a risk level one sex offender as his conditions have changed subsequent to the initial risk level classification given, among other things, that he has remained arrest free, successfully completed sex offender treatment while incarcerated and gained custody of his daughter, which helped him understand the impact of his underlying criminal actions. The Board of Examiners of Sex Offenders in an updated recommendation did not oppose the reclassification. The People initially did not oppose defendant's application for reclassification, but at the hearing for the first time expressed a change of position opposing the reclassification. [FN*] County Court denied the application, and this appeal by defendant ensued. Defendant contends that he was deprived of due process as he was not provided with notice and an opportunity to be heard regarding various Family Court petitions and proceedings on which County Court relied in denying his application for a modification of his risk level sex offender status. Under the circumstances here, we agree. "Correction Law § 168-o (2) permits a sex offender required to register under [the Sex Offender Registration Act] to petition annually for modification of his [or her] risk level classification. The petitioner bears the burden of proving the facts supporting a requested modification by clear and convincing evidence" ( People v Lashway , 25 NY3d 478 , 483 [2015] [citation omitted]; see People v Lashway , 226 AD3d 1270 , 1271 [3d Dept 2024]). Although Correction Law § 168-o (4) does not contain any language entitling a defendant to prehearing discovery, the same procedural due process rights regarding a defendant's access to documents relied on in determining the initial risk assessment are applicable where a defendant seeks a modification of his or her risk level classification pursuant to Correction Law § 168-o ( see People v Lashway , 25 NY3d at 483-484). In discrediting defendant's sworn statements in support of his application and in finding his statements to be misleading, County Court relied heavily upon various Family Court proceedings, including neglect proceedings as far back as 2012, and a family offense petition containing allegations against defendant [*2] that were subsequently withdrawn. The court detailed the allegations in the petitions, finding that the allegations contradicted defendant's sworn statements in his application and that, by excluding such information from his sworn affidavit, defendant attempted to mislead the court. Defendant was not given an opportunity to respond to or defend himself against consideration of such information. Although at the commencement of the proceeding County Court stated that it was taking "judicial notice of all prior criminal and civil proceedings involving [defendant] including, but not limited to, each of his prior applications seeking a downward modification," we find that, under the circumstances here, such a generalized statement by the court failed to give defendant meaningful notice of information being considered and an opportunity to be heard. Further, we note that neither the Board, in its updated recommendation, nor the People, in setting forth their opposition at the hearing, advanced any information pertaining to any Family Court petitions and/or proceedings. It was not until County Court issued its decision that defendant was aware that Family Court matters were being considered. This is not to say that every piece of information of which a court takes judicial notice necessarily must be disclosed to a defendant in every Sex Offender Registration Act proceeding as a matter of course. Here, however, County Court's overwhelming reliance on the allegations set forth in the Family Court petitions and/or proceedings, some of which were unfounded or withdrawn, without specifically identifying them, deprived defendant of notice or a meaningful opportunity to respond to the basis for the court's denial of his application. As such, we find that there was a violation of due process requiring that the matter be remitted for a new hearing, as we do not find such error under these circumstances to be harmless ( compare People v Baxin , 26 NY3d 6 , 11 [2015]). In remitting the matter, we deem it necessary to reiterate that "Correction Law § 168-o does not provide a vehicle for reviewing whether a defendant's circumstances were properly analyzed in the first instance to arrive at his or her risk level. Rather, the relevant inquiry regarding Correction Law § 168-o (2) applications is whether conditions have changed subsequent to the initial risk level determination warranting a modification thereof" ( People v Anthony , 171 AD3d 1412 , 1413 [3d Dept 2019] [internal quotation marks, brackets and citations omitted]; see People v Shader , 217 AD3d 1040 , 1041 [3d Dept 2023], lv granted 40 NY3d 909 [2024]; People v Kaminski , 208 AD3d 1395 , 1396 [3d Dept 2022], lv denied 39 NY3d 905 [2022]). In other words, and contrary to County Court's finding here, the proper level of review is not whether there is clear and convincing evidence to support defendant's initial risk level classification, but rather, whether defendant has met his burden of establishing by clear and convincing [*3] evidence that a modification of his risk assessment level is warranted based upon a change in conditions. Clark, J.P., Aarons, Reynolds Fitzgerald and McShan, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the County Court of Cortland County for further proceedings not inconsistent with this Court's decision. Footnotes Footnote *: Defendant objected to the People's opposition being raised for the first time at the hearing and was afforded an opportunity to submit written submissions after the hearing.

[Assistant]
Defendant not provided with notice and an opportunity to be heard
concerning Family Court proceedings on which the court sua sponte relied
in denying defendant's application; defendant did not even know that
Family Court matters were being considered until the SORA court issued
its decision.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of SORA/SARA/SOMTA and the subtopic of Defendant forfeited right to be present for SORA hearing. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Robinson 2024 NY Slip Op 04789 [231 AD3d 754] October 2, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Randell Robinson, Appellant. Richard L. Herzfeld, New York, NY, for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Meaghan Powers and Lauren Tan of counsel), for respondent. Appeal by the defendant from an order of the Supreme Court, Suffolk County (Chris Ann Kelley, J.), dated February 26, 2020, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. Ordered that the order is affirmed, without costs or disbursements. In April 2010, the defendant was convicted, upon his plea of guilty, of two counts of criminal sexual act in the first degree, aggravated sexual abuse in the second degree, sexual abuse in the first degree, aggravated unlicensed operation of a motor vehicle in the first degree, and endangering the welfare of a child. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), the Supreme Court assessed the defendant 130 points on the risk assessment instrument, resulting in a presumptive risk level of three, and designated the defendant a level three sex offender. The defendant contends that the Supreme Court violated his due process right to appear at the SORA hearing when it conducted the hearing in his absence. This contention is unpreserved for appellate review ( see CPL 470.05 [2]; People v Chang Soo Park , 187 AD3d 804 [2020]). In any event, under the circumstances of this case, the defendant's contention is without merit ( see People v Chang Soo Park , 187 AD3d 804 [2020]; People v Porter , 37 AD3d 797 [2007]). "A sex offender facing risk level classification under [SORA] has a due process right to be present at the SORA hearing" ( People v Gonzalez , 69 AD3d 819 , 819 [2010]; see Correction Law § 168-n [3]; People v Gutierrez-Lucero , 103 AD3d 89 [2012]). "To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence" ( People v Arrahman , 83 AD3d 680 , 680 [2011] [internal quotation marks omitted]). "Thus, the defendant's failure to appear must be deliberate" ( id .). Here, the record reflects that the defendant waived his right to be present, and therefore, the Supreme Court properly proceeded with the hearing in his absence ( see People v Porter , 37 AD3d 797 [2007]). The defendant challenges the assessment of points under risk factor 11 (drug or alcohol abuse). In establishing a defendant's risk level pursuant to SORA, the People "bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence" (Correction Law § 168-n [3]; see People v Bullock , 217 AD3d 886 , 887 [2023]). Here, the People [*2] established by clear and convincing evidence that the defendant has a history of substance abuse within the meaning of risk factor 11 through submission of the case summary prepared by the Board of Examiners of Sex Offenders, the presentence investigation report, and reports completed by corrections officers and counselors. These documents recite, among other things, that the defendant began using marijuana at the age of 13 and, at his worst, smoked marijuana on a daily basis, he had used cocaine and marijuana while on parole, and he scored in the "Alcoholic" range on the Michigan Alcohol Screening Test and in the "Substance Abuse Indicated" range on the Simple Screening Inventory upon his incarceration for the underlying offenses. Further, the Supreme Court properly assessed the defendant 15 points under risk factor 11 despite the defendant's abstinence during his incarceration ( see People v Oliver , 215 AD3d 772 , 773 [2023]; People v Adkinson , 175 AD3d 612 [2019]). Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel by defense counsel's failure to request a downward departure. "A sex offender facing risk level classification under SORA has a right to the effective assistance of counsel" ( People v Parvez , 209 AD3d 885 , 886 [2022] [internal quotation marks omitted]; see People v Bowles , 89 AD3d 171 , 178-179 [2011]). Under the federal ineffective assistance of counsel standard, the defendant must satisfy a two-pronged test in order to establish that counsel was ineffective: (1) "that counsel's representation fell below an objective standard of reasonableness," and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" ( Strickland v Washington , 466 US 668, 688, 694 [1984]; see People v Georgiou , 38 AD3d 155 , 160 [2007]). Under the New York standard, the first prong is identical to its federal counterpart, but the second prong is based on the fairness of the process as a whole rather than on the impact of counsel's errors on the outcome of the case ( see People v Georgiou , 38 AD3d at 160-161). Even under the state standard, however, a claim that counsel was ineffective for failing to make a motion or argument is without merit when such motion or argument had little or no chance of success ( see People v Caban , 5 NY3d 143 , 152 [2005]; People v Dabney , 221 AD3d 624 , 625 [2023]). Here, the record demonstrates that a request for a downward departure would have had little or no chance of success, and there is no reasonable probability that, had defense counsel requested a downward departure, the result of the proceeding would have been different ( see People v Ivey , 223 AD3d 686 [2024]; People v Korzeniowski , 220 AD3d 816 [2023]). The defendant's remaining contention is without merit. Accordingly, the Supreme Court properly designated the defendant a level three sex offender. Brathwaite Nelson, J.P., Maltese, Christopher and Love, JJ., concur.

[Assistant]
"To
establish whether a defendant, by failing to appear at a SORA hearing, has
waived the right to be present, evidence must be shown that the defendant
was advised of the hearing date, of the right to be present at the hearing,
and that the hearing would be conducted in his or her absence" (People v
Arrahman, 83 AD3d 680).
"Thus, the defendant's failure to appear must be deliberate.
" Because the requisite evidentiary showing was made here, the
Supreme Court properly conducted the SORA hearing in defendant's
absence.


[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 Adams 2024 NY Slip Op 05729 [232 AD3d 1302] November 15, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 8, 2025 [*1] The People of the State of New York, Respondent, v Steven J. Adams, Appellant. Hayden M. Dadd, Conflict Defender, Geneseo (Bradley E. Keem of counsel), for defendant-appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), for respondent. Appeal from a judgment of the Livingston County Court (Jennifer M. Noto, J.), rendered December 15, 2022. The judgment convicted defendant upon a guilty plea of murder in the second degree and tampering with physical evidence. 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 murder in the second degree (Penal Law § 125.25 [1]) and tampering with physical evidence (§ 215.40 [1] [a]), stemming from the shooting death of the victim. We affirm. Defendant contends that County Court did not make sufficient inquiry as to the People's actual readiness for trial under CPL 30.30 (5) and that his right to a speedy trial was violated inasmuch as, although the People indicated their readiness for trial, they had not yet turned over all required law enforcement disciplinary records and therefore failed to comply with their initial disclosure obligations under CPL 245.20 (1) (k) (iv). However, that contention is not preserved for appellate review "because he never moved to dismiss the indictment on that ground" ( People v Valentin , 183 AD3d 1271 , 1272 [4th Dept 2020], lv denied 35 NY3d 1049 [2020]; see People v Robinson , 225 AD3d 1266 , 1267-1268 [4th Dept 2024]) or objected to the court's on-the-record inquiry into the People's actual readiness ( see generally CPL 30.30 [5]; People v Bonilla , 229 AD3d 850 , 854 [3d Dept 2024]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [3] [c]). Moreover, we conclude that "[b]y subsequently pleading guilty, . . . defendant forfeited [his] contention [insofar as it related to the People's disclosure obligations] because 'the forfeiture occasioned by a guilty plea extends to claims premised upon, inter alia, . . . motions relating to discovery' " ( People v Smith , 217 AD3d 1578 , 1578 [4th Dept 2023]; see Robinson , 225 AD3d at 1268). Defendant further contends that he was denied effective assistance of counsel on the ground that defense counsel failed to move to dismiss the indictment pursuant to CPL 30.30 (1). Even assuming, arguendo, that defendant's contention survives his guilty plea ( see People v Motell , 229 AD3d 1330 , 1332 [4th Dept 2024]; People v Clark , 191 AD3d 1485 , 1486 [4th Dept 2021], lv denied 37 NY3d 954 [2021]), we reject that contention inasmuch as "[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to 'make a motion or argument that has little or no chance of success' " ( People v Caban , 5 NY3d 143 , 152 [2005]; see People v Little , 229 AD3d 1156 , 1157 [4th Dept 2024], lv denied 42 NY3d 971 [2024]). CPL 30.30 (1) "do[es] not apply to a criminal action wherein the defendant is accused of," inter alia, murder in the second degree, as is true in this case (CPL 30.30 [3] [a]). Consequently, defense counsel could not be ineffective for failing to file a statutory speedy trial motion where, as here, the requirements of CPL 30.30 (1) do not apply ( see People v Word , 260 AD2d 196, 197 [1st Dept 1999], lv denied 93 NY2d 1029 [1999], denied upon reconsideration 94 NY2d 799 [1999]; People v Ortiz , 209 AD2d 332, 334 [1st Dept 1994], lv denied 86 NY2d 739 [1995]; see [*2] generally People v Wiggins , 31 NY3d 1 , 11 [2018]). Defendant further contends that the court erred in refusing to suppress statements that he made during two police interrogations inasmuch as he unequivocally requested counsel during the first police interrogation. We reject that contention and conclude that the record amply supports the court's determination that defendant did not, at any time during the first interrogation, unequivocally request the assistance of counsel ( see People v Karlsen , 147 AD3d 1466 , 1467 [4th Dept 2017], lv denied 29 NY3d 1082 [2017]; see generally People v Dawson , 38 NY3d 1055 , 1055 [2022]). Defendant's statement that he was getting "pretty close" to asking for counsel established only that, as of that time, he had not yet requested the assistance of counsel; it was "merely a forewarning of a possible, contingent desire to confer with counsel rather than an unequivocal statement of [a] defendant's present desire to do so" ( People v Bowman , 194 AD3d 1123 , 1128 [3d Dept 2021], lv denied 37 NY3d 963 [2021] [internal quotation marks omitted]; see generally People v Mitchell , 2 NY3d 272 , 276 [2004]; People v Ibarrondo , 208 AD3d 1647 , 1648 [4th Dept 2022], lv denied 39 NY3d 1111 [2023]). Moreover, defendant's other verbalization concerning the assistance of counsel was presented to the police in the form of a question and it is well settled that "a query as to whether counsel ought to be obtained will not suffice to unequivocally invoke the indelible right to counsel" ( Dawson , 38 NY3d at 1055 [internal quotation marks omitted]; see People v Hicks , 69 NY2d 969, 970 [1987], rearg denied 70 NY2d 796 [1987]; People v Hall , 53 AD3d 1080 , 1081 [4th Dept 2008], lv denied 11 NY3d 855 [2008]). Defendant also contends that suppression of his statements made during the second interrogation, which was conducted the morning after the first interrogation, was required because the police did not reread the Miranda warnings to him before the second interrogation. We reject that contention. It is well settled that there is "no need for the police to readminister Miranda warnings [where, as here,] defendant remained in continuous custody, nothing occurred that would have induced defendant to believe he was no longer the focal point of the investigation, and there was no reason to believe that defendant no longer understood his constitutional rights" ( People v Hinojoso-Soto , 161 AD3d 1541 , 1543 [4th Dept 2018], lv denied 32 NY3d 938 [2018] [internal quotation marks omitted]; see People v Peterkin , 89 AD3d 1455 , 1455 [4th Dept 2011], lv denied 18 NY3d 885 [2012]). It is undisputed that defendant remained in custody between the reading of the Miranda warnings and the renewed questioning of defendant during the second interrogation, and we further conclude that the evidence presented at the suppression hearing supports the determination that the time period between the Miranda warnings and the renewed questioning was not unreasonable ( see Peterkin , 89 AD3d at 1456; People v Cooper , 59 AD3d 1052 , 1054 [4th Dept 2009], lv denied 12 NY3d 852 [2009]), particularly in light of the fact that defendant's custody occurred in a non-coercive environment, where he was provided with food, cigarettes, the ability to watch television, and a place to rest ( see Cooper , 59 AD3d at 1054; People v Leflore , 303 AD2d 1041, 1042 [4th Dept 2003], lv denied 100 NY2d 563 [2003]; People v Baker , 208 AD2d 758, 758-759 [2d Dept 1994], lv denied 85 NY2d 905 [1995]). We reject defendant's further contention that he was coerced into making statements on the ground that the police engaged in deceptive tactics when they used his prior friendship with an investigator to their advantage during the interrogations. "Deceptive police stratagems in securing a statement 'need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession' " ( People v Dishaw , 30 AD3d 689 , 690 [3d Dept 2006], lv denied 7 NY3d 787 [2006], quoting People v Tarsia , 50 NY2d 1, 11 [1980]; see People v Bradberry , 131 AD3d 800 , 802 [4th Dept 2015], lv denied 26 NY3d 1086 [2015]), and there was no such showing here ( see generally People v Lee , 277 AD2d 1006, 1007 [4th Dept 2000], lv denied 96 NY2d 785 [2001]). Finally, we reject defendant's contention that the sentence is unduly harsh and severe. Present—Whalen, P.J., Curran, Ogden, DelConte and Hannah, JJ.

[Assistant]
Contention of discovery/speedy trial violation is not preserved because
defendant "never moved to dismiss the indictment on that ground" or
objected to the court's on-the-record inquiry into the People's actual
readiness. Moreover,
"[b]y subsequently pleading guilty, . . . defendant
forfeited [his] contention [insofar as it related to the People's disclosure
obligations] because 'the forfeiture occasioned by a guilty plea extends to
claims premised upon, inter alia, . . . motions relating to discovery'
"


[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 Bonilla 2024 NY Slip Op 03565 [229 AD3d 850] July 3, 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 Harry Bonilla, Appellant. Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant. P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent. Ceresia, J. Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered July 28, 2020 in Albany County, upon a verdict convicting defendant of the crimes of attempted kidnapping in the second degree as a sexually motivated felony, sexual abuse in the first degree and assault in the third degree. Defendant approached a 16-year-old girl on the street, grabbed her buttocks, tried to force her into his car and punched her. As a result, defendant was charged by indictment with attempted kidnapping in the second degree as a sexually motivated felony, sexual abuse in the first degree and assault in the third degree. After a jury trial, he was convicted as charged. At sentencing, the People waived their right to seek persistent felony offender status and, in exchange, defendant agreed to be sentenced to a prison term of 15 years followed by 20 years of postrelease supervision for the attempted kidnapping conviction, a consecutive prison term of five years followed by 15 years of postrelease supervision for the sexual abuse conviction, and a lesser concurrent term of incarceration for the assault conviction. Defendant appeals. Initially, defendant contends that the evidence is legally insufficient to support his convictions for attempted kidnapping and sexual abuse and that the convictions are against the weight of the evidence. Defendant's legal sufficiency claims with respect to the attempted kidnapping charge are unpreserved, but our weight of the evidence analysis nevertheless involves consideration of whether the proof supports each of the elements of the crimes ( see People v Stone , 179 AD3d 1287 , 1288 [3d Dept 2020]; People v Stover , 174 AD3d 1150 , 1151 [3d Dept 2019], lv denied 34 NY3d 954 [2019]). With that said, "[w]hen assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crimes proved beyond a reasonable doubt" ( People v Lewis , 224 AD3d 1143 , 1144 [3d Dept 2024] [internal quotation marks, brackets and citations omitted]). As for our evaluation of the weight of the evidence, "we must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v Jenkins , 215 AD3d 1118 , 1119 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 997 [2023]). The victim testified as follows. On December 4, 2018, she got out of night school at around 7:15 p.m. and was walking home alone when defendant approached her on foot. Defendant attempted to speak with the victim, asking her how old she was. She responded that she was 16, and defendant [*2] then stated that she looked too good to be 16 years old. The victim continued walking and, as she did so, she heard the sound of a vehicle door unlocking. Assuming that it was defendant's vehicle, the victim turned and went the wrong way down a one-way street so that defendant could not follow her in his vehicle. She also made a few phone calls in an attempt to "talk until [she] got home and [to] feel safe," but the people whom she called did not answer. When the victim reached the end of the block, she saw defendant walking toward her again, coming from the direction of a black SUV. Defendant said he wanted to talk to her and stated, "let's get in the car," and then remotely unlocked the SUV. The victim kept walking but defendant caught up to her, grabbed her buttocks and said, "that felt nice." The victim responded, "that's sexual harassment," but defendant grabbed her buttocks again. As the victim tried to hurry away from defendant, he told her he had a gun and threatened to blow her brains out if she did not put her phone away. Defendant then took hold of the victim's wrist and dragged her to within five feet of the SUV. When the victim fought back against defendant, he grasped her hair with both hands and continued pulling her, telling her to stop making a scene and calling her an expletive. The victim dropped to the ground and defendant finally let go of her. The victim then stood up, whereupon defendant punched her in the mouth. She turned and fled to a nearby playground, called 911 and hid until police arrived. Surveillance footage of the area in question was introduced at trial, which depicted two individuals appearing to struggle, with one person making quick movements and seeming to fall down at one point, and then apparently being dragged by the other person before eventually running away. During her testimony, the victim identified herself as the person being dragged and defendant as the attacker. The victim also identified defendant in court. In addition to the victim's testimony and the surveillance video, the People introduced a recording of the victim's 911 call from that night. In a frantic voice and while breathing heavily, the victim said that she was hiding in a park and stated that she almost got kidnapped and that a guy "touched [her] butt," grabbed her, pulled her toward his vehicle and hit her. A responding patrol officer testified that the victim was hiding at the playground when he arrived and he had to call out and tell her it was safe to come out, whereupon he found her hysterically crying with a laceration on her lip. According to testimony from other officers, the victim gave the police a detailed description of the perpetrator and the black SUV, and they located video camera footage which depicted a matching vehicle. From that video, the police were able to ascertain the license plate and traced it to defendant's housemate. Defendant's parole officer testified that while defendant was incarcerated awaiting trial [*3] in this case, she visited him in jail to serve him with parole violation paperwork. Upon encountering defendant, the officer asked him how he was doing, and defendant replied, "not great." The officer asked why, and defendant stated that he was being unfairly portrayed in the media and then went on to provide a different version of the events of the night in question, in which he described a mutually flirtatious encounter with the victim. Defendant continued, stating that he touched the victim's hair and butt, but she then spit in his face and so he "popped her." Regarding the issue of legal sufficiency, as relevant here, sexual abuse in the first degree is defined as "subject[ing] another person to sexual contact . . . [b]y forcible compulsion" (Penal Law § 130.65 [1]). Defendant's sole argument is that the evidence failed to support the forcible compulsion element of this charge. Forcible compulsion "means to compel by the 'use of physical force' " ( People v Christie , 224 AD3d 1097 , 1098 [3d Dept 2024], quoting Penal Law § 130.00 [8] [a]) or by "a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped" (Penal Law § 130.00 [8] [b]). Defendant's position is that this element was not established because there was no proof that he used force or made threats before he grabbed the victim's buttocks—that is, the purported threatening and dragging of the victim came afterward. The People respond that forcible compulsion was sufficiently proven through evidence of an implied threat. "The determination of whether such an implied threat existed involves a subjective inquiry into what a victim feared a defendant might have done if he or she did not comply . . . consider[ing] all relevant factors including the age of the victim, the relative size and strength of the defendant and victim, and the nature of the defendant's relationship to the victim" ( People v Porter , 82 AD3d 1412 , 1413 [3d Dept 2011] [internal quotation marks, brackets and citations omitted], lv denied 16 NY3d 898 [2011]; see People v Machia , 206 AD3d 1272 , 1276 [3d Dept 2022], lv denied 38 NY3d 1151 [2022]; People v Miller , 226 AD2d 833, 836 [3d Dept 1996], lv denied 88 NY2d 939 [1996]). Here, the victim was young, alone and vulnerable, having been approached by an unknown adult man on a darkened street. As reflected in the victim's testimony, by the time defendant grabbed her buttocks, she had been actively trying to evade him and did not feel safe. The victim also testified that when defendant touched her buttocks, "[h]e punched at it like, like grabbed at it." The jury also had the opportunity to compare the relative sizes of the victim—who, according to the People's sentencing memorandum, had a childlike appearance—and defendant—who, the record reveals, was 32 years old, six feet tall and 205 pounds. Under these circumstances, there [*4] was ample proof that the victim feared for her own safety to support the element of forcible compulsion by means of an implied threat ( see People v Machia , 206 AD3d at 1276; People v Porter , 82 AD3d at 1414). As to the weight of the evidence, a different verdict would not necessarily have been unreasonable. Nevertheless, deferring to the jury's assessment of the credibility and demeanor of the victim and other witnesses, we find that the verdict is supported by the weight of the evidence ( see People v Hartle , 159 AD3d 1149 , 1153 [3d Dept 2018], lv denied 31 NY3d 1082 [2018]; People v Manning , 151 AD3d 1936 , 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]). Moving on, defendant's assertion that the attempted kidnapping conviction merged with the sexual abuse and assault convictions is unpreserved ( see People v Hanley , 20 NY3d 601 , 606 [2013]) and, in any event, lacks merit. The merger doctrine applies when acts constituting the crime of kidnapping are "so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them" ( People v Gonzalez , 80 NY2d 146, 153 [1992] [internal quotation marks and citation omitted]; see People v Hanley , 20 NY3d at 605-606). Although the acts constituting each of the crimes of conviction herein occurred in relatively quick succession, defendant's attempted abduction of the victim was not "simultaneous and inseparable" from the other crimes ( People v Place , 152 AD3d 976 , 980 [3d Dept 2017] [internal quotation marks and citation omitted], lv denied 30 NY3d 1063 [2017]; see People v Thorpe , 141 AD3d 927 , 932 [3d Dept 2016], lv denied 28 NY3d 1031 [2016]). The sexual abuse was completed after defendant grabbed the victim's buttocks. Defendant then committed the attempted kidnapping by dragging the victim toward the SUV. When defendant let go of the victim, the attempted kidnapping ceased at that point. The assault then occurred after the victim got back to her feet and defendant proceeded to punch her. Given that each crime was discrete, and the attempted kidnapping was not merely "the incidental means employed to facilitate the commission of" the sexual abuse and assault ( People v Cassidy , 40 NY2d 763, 768 [1976]), the merger doctrine does not apply ( see People v Smith , 47 NY2d 83, 87-88 [1979]). We reject defendant's related claim that trial counsel was ineffective in not raising this issue, as counsel will not be faulted for failing to advance a meritless claim ( see People v Place , 152 AD3d at 980). Next, defendant makes two arguments pertaining to the People's statement of trial readiness. First, defendant asserts that, after the People filed the mandated certificate of compliance, Supreme Court failed to inquire of the People on the record as to their actual readiness for trial ( see CPL 30.30 [5]; 245.20, 245.50 [3]; People v McCarty , 221 AD3d 1360 , 1361 [3d Dept 2023], lv denied 40 [*5] NY3d 1093 [2024]). This claim, however, is not preserved for our review, nor does it, as defendant insists, constitute a mode of proceedings error that is exempt from the preservation requirement ( see People v Gray , 86 NY2d 10, 20-22 [1995]; see also People v Grumberg , 153 AD3d 1525 , 1526 [3d Dept 2017]). Second, defendant contends that the People's certificate of compliance and accompanying statement of trial readiness were illusory because the People violated the automatic discovery requirements of CPL 245.20 by failing to disclose the names of members of the Guilderland Police Department who were present when he was arrested. As part of their discovery obligations, the People are required to disclose the names of "all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto" (CPL 245.20 [1] [d]). The officers in question did not fall within the ambit of the statute. Albany detectives had advised the Guilderland officers that they would be traveling into their jurisdiction in order to arrest defendant. Although the Guilderland officers were present and had been talking to defendant when the Albany detectives arrived to make the arrest, as confirmed to the prosecutor by the lead Albany detective, the Guilderland officers did not have any knowledge about the case, and nothing in the record indicates to the contrary. Thus, the People were not mandated to disclose the officers' names under CPL 245.20 (1) (d) ( see People v Robbins , 206 AD3d 1069 , 1072 [3d Dept 2022], lv denied 39 NY3d 942 [2022]; People v McQueen , 80 Misc 3d 225 , 230 [Crim Ct, Kings County 2023]; compare People v Elmore , 211 AD3d 1536 , 1538 [4th Dept 2022]). Defendant further argues that Supreme Court erred in allowing the People to elicit the statements he made to his parole officer while incarcerated, as these statements were the product of custodial interrogation that were not preceded by Miranda warnings. We disagree. The parole officer greeted defendant in general fashion by asking how he was doing. After receiving a response from defendant that he was "not great," the officer asked a single, innocuous follow-up question, "why?" It is clear that the officer, whose sole purpose in visiting defendant was to serve him with parole paperwork, was not questioning defendant about anything having to do with this case and her questions were not " 'reasonably likely to evoke an incriminating response' " ( People v Huffman , 61 NY2d 795, 797 [1984], quoting Rhode Island v Innis , 446 US 291, 301 [1980]; accord People v George , 127 AD3d 1496 , 1497 [3d Dept 2015]; see People v Perez , 142 AD3d 410 , 416 [1st Dept 2016], affd 31 NY3d 964 [2018]; People v Taylor , 1 AD3d 623 , 624 [3d Dept 2003], lv denied 1 NY3d 602 [2004]). We have considered defendant's remaining contentions, including his claims that certain evidentiary rulings by Supreme Court were erroneous and deprived him of a fair trial. Having [*6] done so, we find them to be unpersuasive. Egan Jr., J.P., Reynolds Fitzgerald, Fisher and Mackey, JJ., concur. Ordered that the judgment is affirmed.

[Assistant]
Defendant
did not preserve his complaint that the trial court failed to inquire of the
People on the record as to their actual readiness for trial [see CPL 30.30
(5); 245.20; 245.50 (3)]. And the claim is not "a mode of proceedings error
that is exempt from the preservation requirement [citations omitted].


[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 Wann 2025 NY Slip Op 01322 Decided on March 11, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: March 11, 2025 Before: Moulton, J.P., Kennedy, Gesmer, Mendez, Rodriguez, JJ. Ind. No. 1932/19|Appeal No. 3879|Case No. 2022-05464| [*1] The People of the State of New York, Respondent, v Alpha Wann, Defendant-Appellant. Jenay Nurse Guilford, Center for Appellate Litigation, New York (Emilia Kind-Musza of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent. Judgment, Supreme Court, Bronx County (Timothy W. Lewis, J.), rendered November 30, 2022, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencing him to five years of probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed on defendant at sentencing, and otherwise affirmed. Under the "totality of the circumstances," defendant's waiver of the right to appeal was invalid ( People v Thomas , 34 NY3d 545 , 559 [2019], cert denied 589 US __, 140 S Ct 2634 [2020]). There is no written waiver in the record and the transcript contains no reference to one. The court's brief colloquy "did not adequately explain the nature of the right to appeal to defendant" ( People v Coleman , 225 AD3d 477 , 477 [1st Dept 2024], lv denied 41 NY3d 1001 [2024]). By instructing defendant that "these days what happens is the prosecutor requires you to waive your right to appeal," the court led defendant to "erroneously believe that the right to appeal is automatically extinguished upon entry of a guilty plea" ( People v Braithwaite , 73 AD3d 656 , 656 [1st Dept 2010], lv denied 15 NY3d 849 [2010]). Additionally, the court failed to "make clear that the right to appeal is separate and distinct from the trial rights defendant was waiving by entering a guilty plea" ( People v Cisse , 228 AD3d 440 , 441 [1st Dept 2024]). Under these circumstances, we find that the appeal waiver was not knowing and voluntary ( see People v Bradshaw , 18 NY3d 257 , 264 [2011]). However, we perceive no basis for reducing the sentence. Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing ( see People v Leggett , 219 AD3d 1253 [1st Dept 2023], lv denied 40 NY3d 1081 [2023]; People v Chirinos , 190 AD3d 434 [1st Dept 2021]). We note that the People do not oppose this relief. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 11, 2025

[Assistant]
Under the
"totality of the circumstances,
" defendant's waiver of the right to appeal
was invalid. No written waiver in the record and transcript contained no
reference to a waiver.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Waivers of appeal and the subtopic of Invalid. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v McCray 2025 NY Slip Op 01324 Decided on March 11, 2025 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: March 11, 2025 Before: Moulton, J.P., Kennedy, Gesmer, Mendez, Rodriguez, JJ. Ind. No. 70178/22|Appeal No. 3881|Case No. 2023-00147| [*1] The People of the State of New York, Respondent, v Jeru McCray, Defendant-Appellant. Caprice R. Jenerson, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent. Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J. at motion to controvert search warrant; Neil E. Ross, J. at plea and sentencing), rendered December 13, 2022, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him to a term of five years, unanimously affirmed. Defendant's waiver of appeal was not knowing, intelligent and voluntary ( see People v Thomas , 34 NY3d 545 [2019], cert denied 589 US __, 140 S Ct 2634 [2020]). At the oral colloquy the court merely asked defendant if he had reviewed and signed the written waiver, and asked him "did you place your signature here to indicate that you've read the document, that you understand the terms of the waiver of right to appeal, and that you're knowingly and voluntarily waiving your right to appeal?" The court did not ask any further questions that could verify that defendant understood what he was waiving. The court did not state that the right to appeal is separate and distinct from the trial rights defendant was waiving by taking a guilty plea, and it made no mention of appeal rights that survive a valid waiver. These errors, taken as a whole, could not be cured by a written waiver ( People v Cisse , 228 AD3d 440 , 441 [1st Dept 2024]; see People v Rochester, — AD3d &mdash, 2025 NY Slip Op 00640 [1st Dept 2025]; People v Amparo , — AD3d &mdash, 2025 NY Slip Op 00389 [1st Dept 2025]). However, we find that the court properly denied defendant's motion to controvert the search warrant because the no-knock provision was authorized based on sufficient information supporting the conclusion that defendant might be present with immediate access to firearms when the search warrant was executed ( see People v Brown , 46 AD2d 590, 591 [1st Dept 1975], affd 40 NY2d 183 [1976]). We have considered and rejected defendant's remaining arguments for affirmative relief. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 11, 2025

[Assistant]
Court
did not state that the right to appeal is separate and distinct from the trial
rights defendant was waiving by taking a guilty plea, and it made no
mention of appeal rights that survive a valid waiver.


[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 Robinson 2025 NY Slip Op 01677 Decided on March 20, 2025 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered:March 20, 2025 113047 [*1] The People of the State of New York, Respondent, v Robin S. Robinson, Appellant. Calendar Date:February 13, 2025 Before:Egan Jr., J.P., Clark, Lynch, Powers and Mackey, JJ. Adam G. Parisi, Schenectady, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Nathan M. Bloom of counsel), for respondent. Powers, J. Appeal from a judgment of the County Court of Chemung County (Richard Rich Jr., J.), rendered June 7, 2021, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree. In 2020, defendant was charged by indictment with criminal possession of a weapon in the third degree stemming from the discovery of an assault weapon in his backpack during an arrest pursuant to a warrant on charges emanating from another county. Following an unsuccessful attempt to suppress the results of the search of his backpack incident to his arrest — but prior to a hearing on his motion seeking to suppress his statements to police — defendant accepted a plea offer pursuant to which he pleaded guilty to the reduced charge of attempted criminal possession of a weapon in the third degree. Pursuant to the agreement, defendant agreed to waive his right to appeal and was promised a prison sentence of two years, to be followed by two years of postrelease supervision. County Court thereafter imposed the agreed-upon sentence. Defendant appeals. We affirm. Initially, we disagree with defendant's argument that his waiver of appeal was not valid. The record reflects that County Court thoroughly advised defendant that a waiver of appeal was an express condition of the plea agreement, [FN1] that the waiver was separate and distinct from the trial-related rights that he was forfeiting by pleading guilty, that certain issues survived the waiver and could be raised on appeal and explained the nature of his appellate rights and the rights being waived. Moreover, the court made clear that the appeal waiver would preclude any challenge to the denial of his suppression motion. Defendant confirmed that he had reviewed the waiver with defense counsel, understood it and agreed to it voluntarily. We find that the waiver of appeal entered into during the plea allocution was valid in that it made clear, among other things, that it was not an absolute bar to taking a direct appeal and that some issues were nonwaivable, while providing specific examples of some of those rights that did survive the waiver ( see People v Thomas , 34 NY3d 545 , 558 [2019]; People v Lopez , 6 NY3d 248 , 256 [2006]; People v Joseph , 227 AD3d 1233 , 1234-1235 [3d Dept 2024], lv denied 42 NY3d 1053 [2024]). [FN2] Although it may be the "better practice" ( People v Thomas , 34 NY3d at 567; see People v Streater , 207 AD3d 952 , 954 n 1 [3d Dept 2022], lv denied 39 NY3d 942 [2022]), it was not necessary for County Court to read the model colloquy on the waiver of the right to appeal verbatim or specifically delineate all the issues that survive a valid appeal waiver. Provided the defendant is waiving his or her right to appeal knowingly, intelligently and voluntarily, trial judges are not required to follow "any particular litany when apprising a defendant pleading guilty of the individual rights abandoned" ( People v Lopez , 6 NY3d at 256; see People v Wint , 222 AD3d 1050 , 1051 [3d Dept [*2] 2023], lv denied 41 NY3d 945 [2024]). As defendant's waiver of appeal was knowing, voluntary and intelligent, he is precluded from challenging the denial of his motion to suppress the physical evidence and the severity of the agreed-upon, lawful sentence ( see People v Sanders , 25 NY3d 337 , 342 [2015]; People v Taylor , 228 AD3d 1144 , 1145 [3d Dept 2024], lv denied 425 NY3d 1022 [2024]). To the extent defendant raises arguments addressed to his motion to suppress his statements to police, he pleaded guilty prior to a Huntley hearing or decision on that motion. As such, he forfeited his statutory right to appeal that issue ( see People v Elmer , 19 NY3d 501 , 509 [2012]; People v Fernandez , 67 NY2d 686, 688 [1986]; People v Awny , 230 AD3d 1464 , 1465 [3d Dept 2024]; People v Lende , 204 AD3d 1224 , 1225 [3d Dept 2022], lv denied 38 NY3d 1151 [2022]). [FN3] Egan Jr., J.P., Clark, Lynch and Mackey, JJ., concur. ORDERED that the judgment is affirmed. Footnotes Footnote 1: Defendant rejected a contemporaneously presented, alternate plea offer, which provided for a longer prison sentence but did not require a waiver of appeal, expressly telling County Court that he would accept the offer with the shorter prison term and "waive my right to appeal." Footnote 2: The record reflects that, at sentencing, defendant reaffirmed his waiver of appeal, confirmed that he had discussed it with defense counsel, was again advised that certain issues survive the waiver and remotely signed a written waiver of appeal. However, this written waiver is not in the record on appeal. Nevertheless, in light of the sufficiency and validity of the oral waiver of appeal, the lack of a written waiver is not relevant ( see People v Washington , 206 AD3d 1278 , 1280 [3d Dept 2022], lv denied 39 NY3d 942 [2022]). Footnote 3: Although defendant requested both Mapp and Huntley hearings, it appears only the former was held considering that the hearing and County Court's ruling focused on the lawfulness of the search of defendant's bag incident to his arrest. Even assuming the suppression ruling was intended to also address and deny defendant's motion to suppress his statements to police at the time of his arrest, his valid appeal waiver likewise precludes any arguments pertaining to the denial of that motion ( see People v Sanders , 25 NY3d at 342; People v Taylor , 228 AD3d at 1145).

[Assistant]
Trial
court advised defendant at the time he pleaded guilty that a waiver of
appeal is not an absolute bar to taking a direct appeal and that some issues,
examples of which were mentioned, were nonwaivable. While the better
practice may be to read the model waiver of the right to appeal verbatim or
specifically delineate all the issues that survive a valid appeal waiver, that
is not required.