COOPER, KEVIN O., PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
704
KA 09-01959
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KEVIN O. COOPER, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered July 8, 2009. The judgment convicted defendant, upon
his plea of guilty, of criminal possession of a controlled substance
in the third degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a controlled substance in the
third degree (Penal Law § 220.16 [1]), defendant contends that his
waiver of the right to appeal was not valid because the record does
not establish that he understood that right and waived it voluntarily,
knowingly, and intelligently. We agree. Although “there is no
requirement that [County C]ourt engage in any particular litany in
order to satisfy itself that [those] standards have been met, a
knowing and voluntary waiver cannot be inferred from a silent record”
(People v Callahan, 80 NY2d 273, 283). The record establishes that
the court instructed defendant to execute a written waiver of the
right to appeal and that defendant did as instructed, but there was no
colloquy between the court and defendant regarding the waiver (see
id.; cf. People v Ramos, 7 NY3d 737, 738). Thus, defendant’s further
contention that the court erred in refusing to suppress the cocaine
found on his person and his statements to the police because he was
arrested and searched without probable cause is not encompassed by his
invalid waiver of the right to appeal.
We conclude, however, that defendant forfeited any right to
challenge the court’s suppression ruling. Pursuant to CPL 710.70 (2),
an “order finally denying a motion to suppress evidence may be
reviewed upon an appeal from an ensuing judgment of conviction
notwithstanding the fact that such judgment is entered upon a plea of
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KA 09-01959
guilty.” Here, the court issued a bench decision with respect to
those parts of defendant’s omnibus motion seeking to suppress the
cocaine and his statements, but defendant pleaded guilty before the
court issued an order, and thus CPL 710.70 (2) is not applicable (see
People v Ellis, 73 AD3d 1433, lv denied 15 NY3d 851; People v
Releford, 73 AD3d 1437, 1438, lv denied 15 NY3d 808).
In any event, we conclude that defendant’s contention that he was
arrested and searched without probable cause is without merit. The
evidence at the suppression hearing established that the stop of
defendant’s vehicle was lawful inasmuch as the police officers
observed defendant violating two provisions of the Vehicle and Traffic
Law (see People v Mundo, 99 NY2d 55, 58). During that stop, an
officer observed in plain view a “dime baggie” with “white residue.”
The officer testified at the suppression hearing that, based on his
experience, he recognized the baggie as a type commonly used to
package drugs for sale and the residue as crack cocaine residue. That
evidence, together with the officers’ additional plain view
observation that defendant had a grocery bag “stuffed with money,”
gave the officers probable cause to arrest defendant (see People v
Schell, 261 AD2d 422, lv denied 94 NY2d 829; People v Lumpkins, 157
AD2d 804, lv denied 75 NY2d 967). Because defendant was lawfully
arrested based on probable cause, the subsequent search of his person
was permissible as a search incident to arrest (see generally People v
Ralston, 303 AD2d 1014, lv denied 100 NY2d 565; People v Taylor, 294
AD2d 825, 826).
Entered: June 10, 2011 Patricia L. Morgan
Clerk of the Court