People v Johnson

People v Johnson 2016 NY Slip Op 00517 Decided on January 27, 2016 Appellate Division, Second 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 27, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
SHERI S. ROMAN
SANDRA L. SGROI, JJ.
2013-11392
(Ind. No. 1840/12)

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

v

Christopher Johnson, appellant.

Mark Diamond, New York, NY, for appellant.

Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Pamela Kelly-Pincus of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Carter, J.), rendered November 20, 2013, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions, of the suppression of physical evidence and the defendant's statements to law enforcement officials.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the Supreme Court did not tell the defendant that he ordinarily would retain his right to appeal after a guilty plea. Instead, the court told the defendant that he was required to waive his right to appeal. Inasmuch as the record does not establish that the defendant voluntarily waived his right to appeal, the waiver is not enforceable (see People v Pelaez, 100 AD3d 803, 803).

The hearing court correctly declined to suppress physical evidence and the defendant's statements to law enforcement officials. The credible evidence at the suppression hearing established that the police had probable cause to arrest the defendant (see People v Williams, 127 AD3d 1114, 1115-1116).

The defendant's contention regarding the sufficiency of the factual allocution at the plea proceeding is unpreserved for appellate review (see CPL 470.05[2]; People v Sanchez, 122 AD3d 646, 646) and, in any event, without merit (see People v Sanchez, 122 AD3d at 647; People v Ballard, 112 AD3d 731, 732).

The defendant's challenge to the procedure used to sentence him as a second felony offender also is unpreserved for appellate review and, in any event, without merit (see People v Evans, 121 AD3d 1012, 1012-1013).

RIVERA, J.P., BALKIN, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court