People v. Villarreal , 146 A.D.3d 598 ( 2017 )

People v Villarreal (2017 NY Slip Op 00389)

People v Villarreal

2017 NY Slip Op 00389

Decided on January 19, 2017

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 on January 19, 2017
Andrias, J.P., Saxe, Feinman, Gische, Kahn, JJ.

2780 5241/12

[*1]The People of the State of New York, Respondent,

v

Ronald Villarreal, Defendant-Appellant.

Richard M. Greenberg, Office of the Appellate Defender, New York (Lauren Stephens-Davidowitz of counsel) and Wachtell, Lipton, Rosen & Katz, New York (Steven Winter of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J. at suppression hearing; Ronald A. Zweibel, J. at plea and sentencing), rendered April 18, 2013, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of 3½ years, unanimously affirmed.

Defendant made a valid waiver of the right to appeal that forecloses review of his suppression claim (see People v Lopez, 6 NY3d 248, 256-257 [2006]). The court elicited the appeal waiver separately from its discussion of the rights automatically forfeited upon a guilty plea, and defendant also signed a valid written waiver (see People v Sanders, 25 NY3d 337, 340-342 [2015]; People v Ramos, 7 NY3d 737 [2006]).

Regardless of whether defendant made a valid waiver of his right to appeal, we find that the court properly denied his suppression motion. The record supports the conclusion that the police encounter with defendant was not an arrest requiring probable cause, but a forcible detention within the parameters of People v Allen (73 NY2d 378 [1979]), in the lawful course of which the police conducted a thorough patdown search of defendant's clothing, resulting in the discovery of a firearm. Defendant did not preserve his claim that the police lacked reasonable suspicion to support a forcible detention, and we decline to review it in the interest of justice. As an alternative holding, we find it unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 19, 2017

CLERK