People v DeSimone.

This is an appeal by the defendant from a judgment of the Supreme Court, Kings County rendered 5 May 2008 convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of suppression of identification testimony.

The court reverses the judgment, on the law, vacates the plea, suppresses the identification testimony, and remits the matter to the Supreme Court, Kings County, for further proceedings consistent herewith.

The defendant agreed to plead guilty to sex crimes of rape in the first degree in exchange for a promised determinate sentence of nine years of imprisonment on the day after the Supreme Court denied suppression of identification testimony. During the course of the ensuing plea allocution, the Supreme Court advised the criminal defendant of the terms of its sentencing commitment, and briefly explained that he would be waiving his right to appeal.

Although the defendant was asked directly by the Supreme Court whether he understood the nature of the waiver of the right to appeal, the defendant instead responded by asking the Supreme Court a question about the mandatory fees that would be imposed upon him as a result of his conviction.

The defendant did not acknowledge in any manner that he understood the nature of the waiver. After both the Supreme Court and defense counsel attempted to clarify the fee issue, the Supreme Court asked the defendant whether he understood the explanation, and he replied “yes.” The defendant further stated, in response to the Supreme Court’s inquiry, that although he had previously been confined to a hospital for mental illness, he now felt well psychologically.

At the conclusion of the plea allocution, the Supreme Court asked whether a written waiver of the right to appeal had been signed, and defense counsel handed the Supreme Court a waiver form, stating that the defendant had executed the waiver form, and that counsel had witnessed it.

The court finds that there is no indication that, prior to signing the waiver, the defendant had been advised of his right to take an appeal, that the defendant understood the nature of the waiver, or that the defendant’s waiver was executed voluntarily and knowingly.

On the contrary, the defendant claimed, at sentencing, that his attorney had coerced him into pleading guilty and had misinformed him of the consequences of doing so, and claimed that his attorney had not provided him “with the proper paperwork,” but instead led him to believe that he would “receive a MICA [Mental Illness and Controlled-Substance Abuse] therapeutic program.” Additionally, the Supreme Court did not question the defendant about the written waiver, and did not ascertain on the record that he understood its contents.

On appeal, the defendant contends that his waiver of the right to appeal is not enforceable because the Supreme Court provided virtually no explanation regarding the waiver and took no measures to ensure that he, a first felony offender with a history of mental illness, understood it and was validly waiving his right to appeal.

The court agrees.

In People v Seaberg, the Court of Appeals first recognized that the public interest concerns underlying plea bargains generally are served by enforcing waivers of the right to appeal, observing that the negotiating process serves little purpose if the terms of a carefully orchestrated bargain can subsequently be challenged. However, the Seaberg opinion makes clear that a waiver of the right to appeal will not be enforced unless it was knowingly, intelligently and voluntarily made as also held in People v Callahan and People v Seaberg. This determination must be made in the first instance by the trial court, which is in the best position to assess all of the relevant factors, including the reasonableness of the bargain, and the age and experience of the accused.

In People v Callahan, it was held that appellate courts are also entrusted with the responsibility to oversee the plea bargaining process, and must examine the record to ensure that the defendant’s waiver of the right to appeal reflects a knowing and voluntary choice. While there is no requirement that the trial court engage in any particular litany in order to satisfy itself that these standards have been met, a knowing and voluntary waiver cannot be inferred from a silent record as in People v DeSimone.

In the case at bar, the court notes that the written waiver signed by the criminal defendant recited that he had been advised by the Supreme Court and by his attorney of the “nature of the rights” he was giving up, and explained that the right to appeal included, inter alia, the right to prosecute the appeal as a poor person, the right to have an attorney assigned in the event the defendant was indigent, and the right to submit a brief and/or argue before an appellate court any issues relating to the defendant’s conviction and sentence for sex crimes.

The court finds that a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right. Here, the Supreme Court did not engage in a “detailed inquiry” of the defendant but instead, explained the waiver of the right to appeal in an extremely perfunctory manner. Indeed, the Supreme Court merely stated that the conviction here is final, that there is not a higher court you can take it to.

While a detailed written waiver can supplement a trial court’s on-the-record explanation of what a waiver of the right to appeal entails, and clarify possible ambiguities in that explanation as in People v Ramos, the execution of a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently, and voluntarily giving up his or her right to appeal as a condition of the plea agreement.

Moreover, the court finds that the defendant signed the written waiver prior to the commencement of the plea proceeding.

Finally, in evaluating whether the record is sufficient to demonstrate a knowing, intelligent, and voluntary waiver of the right to appeal, it cannot be overlooked that, at the time he entered his plea, the 23-year-old defendant had never previously been convicted of a felony, and that he suffered from mental illness to such a severe degree that the prosecution was delayed on several occasions because of findings that he was unfit to proceed. Additionally, nowhere in the record did the defendant explicitly state that he waived his right to appeal.

Considering all of these circumstances, the court cannot conclude on this record that the defendant understood the implications of the waiver of the right to appeal, and voluntarily agreed to it. Accordingly, the waiver is unenforceable akin to People v Callahan, People v Malloy, People v Folks, People v Dongo, People v Gladden and People v McCaskell. Date Rape was not charged.

In the absence of a knowing, intelligent, and voluntary waiver of the right to appeal, the defendant retains his right to challenge the denial of suppression of the complainant’s lineup identification as the fruit of an illegal arrest under CPL 710.70[2] and as held in People v Brown and People v Malloy.

The court agrees with the defendant’s contention that the hearing record is inadequate to establish that his arrest was supported by probable cause.

The court concludes that the defendant’s arrest was supported by probable cause. The Supreme Court stated that this crime took place at the Linden Plaza apartment complex, and the individual was seen right where the event happened. The Supreme Court also emphasized that A recognized the defendant as someone who used to play basketball.

Contrary to the Supreme Court’s determination, the evidence that the defendant was seen near the security booth of a large apartment complex, in the vicinity of the location where the rape occurred, did not rise to the level of probable cause. “It is well settled that the mere presence of an individual at a scene of criminal activity without any other indicia of criminal activity is insufficient to establish probable cause as held in People v Sanchez.

In the case at bar, there was no additional indicia of criminal activity beyond the defendant’s presence in the vicinity of the crime scene. There was no detailed description of the perpetrator and no evidence that the defendant matched the general description given by the complainant except for race and height. While the complainant did indicate that the perpetrator was wearing dark clothing, a hooded sweatshirt, and a do-rag, the record is devoid of any indication of what the defendant was wearing when A observed him near the security booth.

Moreover, the prosecutor elicited no testimony that the defendant was engaged in any type of furtive or suspicious conduct when A saw him near the security booth. Further, while the crime took place late at night, there is no evidence that the grounds surrounding the apartment complex were deserted or that the defendant was the only individual in the vicinity.

Based on a poorly developed record, the court cannot conclude that the prosecution sustained its burden of establishing probable cause akin to People v Hargroves, People v Sanchez, People v Sellers, People v Yiu C. Choy, People v Hawkins and People v White.

The court disagrees that nothing in the record remotely suggests that the defendant’s arrest in Queens was pursuant to the detective’s inquiry card or had anything to do with the Brooklyn charges at issue in the instant case and that, consequently, whether the police had probable cause to arrest the defendant for the rape which occurred in Brooklyn is “irrelevant.” since it was the People who had the burden of coming forward with evidence establishing that probable cause existed for the defendant’s arrest and that he, therefore, was lawfully in custody when he was placed in the lineup akin to People v Dodt.

Detective L testified that he arrested the defendant for the rape just prior to placing him in the lineup. If the People’s theory was that the defendant was lawfully in custody, not on the basis of that arrest, but on the basis of an earlier arrest in Queens, it was their burden to come forward with evidence that the Queens arrest was lawful. Detective L’s bare statement that he was informed that the defendant had been arrested in Queen’s is insufficient to establish that the defendant was arrested on independent charges unrelated to the subject offense and that the Queens arrest was supported by probable cause.

Since the defendant’s arrest was unlawful, any testimony that the complainant identified him in a lineup should have been suppressed as the fruit of illegal police conduct as in People v Gethers and People v Dodt.

Accordingly, the criminal court vacates the defendant’s plea of guilty and remits the matter to the Supreme Court, Kings County, for further proceedings, including a hearing to determine whether an independent source exists to support an in-court identification of the defendant by the complainant akin to People v Gethers, People v Dodt, People v Sanchez and People v Dawkins.

The court further notes that, as the People correctly concede, because the crime was committed prior to the effective date of the amendment to Penal Law § 60.35 providing for the imposition of a supplemental sex offender fee, that fee should not have been imposed upon the defendant pursuant to Penal Law § 60.35[1][b] and in accordance with People v Rodriguez,

Thus, in the event that the defendant is resentenced, the supplemental sex crimes offender fee should not be imposed.

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