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THE JUDGE DID NOT HAVE A DISTINCT AND PROPER REASON TO DEMAND THE WAIVER OF DEFENDANT’S RIGHT TO APPEAL; IT APPEARS THE JUDGE WAS TRYING TO SHIELD THE DENIAL OF SUPPRESSION FROM APPELLATE REVIEW; THE POLICE OFFICERS WHO APPROACHED DEFENDANT BASED UPON AN ANONYMOUS TIP HAD ONLY THE COMMON LAW RIGHT OF INQUIRY; THE EVIDENCE DEFENDANT CONSENTED TO THE PAT DOWN SEARCH WAS INSUFFICIENT; SUPPRESSION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant’s waiver of appeal was invalid and defendant’s motion to suppress the evidence seized from his person should have been granted:

Here, the consent of the People to the plea agreement was not required because the charges remained as presented (see CPL 220.10 [2]) and, thus, the People were not in a position to demand a waiver of defendant’s right to appeal nor was such a waiver—or any other plea condition—necessary to secure the People’s consent … . It follows, then, that the court’s demand of an appeal waiver, particularly as viewed in light of defendant’s expressed desire to seek appellate review of the court’s suppression ruling, “gives rise to the appearance that the court [was] seeking to shield its decisions from appellate review or otherwise act[ing] as an advocate for the People” and, therefore, “we must look to the record as a whole to determine whether there is a distinct and proper reason for the court’s demand” … . * * *

Upon our review of the record …, including defense counsel’s unrefuted assertion that the court unilaterally demanded an appeal waiver that would foreclose appellate review of its determination of defendant’s suppression motion as a condition of the court-initiated plea agreement, we conclude that it is not apparent that the court had a distinct and proper reason to demand that waiver of defendant’s right to appeal. Therefore, the waiver of the right to appeal is invalid and does not preclude our review of defendant’s contentions. * * *

… [T]he anonymous 911 phone tip generated only a belief that criminal activity was afoot and, as such, limited the officers’ permissible action to a level two common-law right of inquiry … . * * *

Inasmuch as the People failed to present evidence at the suppression hearing establishing defendant’s voluntary consent to the search of his person, all physical evidence seized as a result of that consent “should have been suppressed” … . People v Turner, 2026 NY Slip Op 02557, Fourth Dept 4-24-26

Practice Point: Where the defendant pleads to the charges and there is no need for the People’s consent, the sentencing judge must have a distinct and proper reason to demand that defendant waive his right to appeal, absent here.

 

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