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WAIVER OF APPEAL INVALID; MATTER REMITTED FOR THE STATUTORILY REQUIRED FINDINGS FOR THE DENIAL OF DEFENDANT’S SUPPRESSION MOTION; APPEAL HELD IN ABEYANCE (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was invalid. He therefore could challenge the denial of his suppression motion on appeal. However, Supreme Court did not make the statutorily required findings of fact and conclusions of law. The matter was remitted for findings on all the issues raised by the suppression motion, and the appeal is held in abeyance:

When the Supreme Court attempted to explain to the defendant the waiver of the right to appeal, it improperly conflated the right to appeal with rights automatically forfeited by a plea of guilty … . As such, the record does not demonstrate that the defendant understood the nature of the right he was being asked to waive or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty … . Moreover, although the record of the proceedings reflects that the defendant executed a written waiver of his right to appeal, the court did not ascertain on the record whether the defendant had read the waiver or discussed it with defense counsel … . …

“[T]he CPL article 710 suppression procedure involves an adjudication based on mixed questions of law and fact”… . “The suppression court must make findings of fact, often requiring it to assess the credibility of witnesses” … . “Regardless of whether a hearing was conducted, the court, upon determining [an article 710] motion, must set forth on the record its findings of fact, its conclusions of law and the reasons for its determination” (CPL 710.60[6] …). People v Harris, 2019 NY Slip Op 06795, Second Dept 9-25-19

 

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