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THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE SUGGESTED THE WAIVER WAS AN ABSOLUTE BAR TO APPEAL; THE OFFICER WHO APPROACHED DEFENDANT ON THE STREET WAS NOT JUSTIFIED IN REACHING FOR AN OBJECT IN DEFENDANT’S SWEATSHIRT POCKET; DEFENDANT’S FLIGHT AND DISCARDING OF THE WEAPON WAS NOT INDEPENDENT OF THE OFFICER’S UNJUSTIFIED ACTIONS; THE GUN SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, finding the waiver of appeal invalid, granted defendant’s suppression motion and dismissed the indictment. The officer who approached defendant saw the shape of something heavy in defendant’s sweatshirt pocket, said “what’s this” and reached for it. At that point defendant ran and discarded a weapon:

When explaining the waiver of the right to appeal, the Supreme Court stated, inter alia, that as a result of the waiver, the defendant was “giving up [his] independent right to appeal [his] case to a higher court,” and that the case “ends here” upon sentencing. These statements incorrectly suggested that the waiver may be an absolute bar to the taking of an appeal … . …

The officer was justified in conducting a common-law inquiry, and the officer was permitted to ask the defendant if he was carrying a weapon … . However, the officer was not justified in attempting to touch the defendant’s sweatshirt pocket as a minimally intrusive self-protective measure, since the defendant did not engage in any conduct justifying such an intrusion … . The defendant’s response of fleeing and discarding the gun was not “an independent act involving a calculated risk attenuated from the underlying [illegal] police conduct” … . People v Soler, 2020 NY Slip Op 07404, Second Dept 12-9-20

 

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