        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

176
KA 13-00677
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MOSES MADDEN, III, DEFENDANT-APPELLANT.


MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Gail
A. Donofrio, J.), rendered January 23, 2013. The judgment convicted
defendant, upon his plea of guilty, of reckless endangerment in the
first degree and aggravated criminal contempt.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of reckless endangerment in the first degree
(Penal Law § 120.25) and aggravated criminal contempt (§ 215.52 [1]).
As the People correctly concede, defendant’s written waiver of the
right to appeal is invalid because the record establishes that Supreme
Court did not explain the written waiver to defendant or ascertain
that he understood its contents (see People v Bradshaw, 18 NY3d 257,
264-265; People v Callahan, 80 NY2d 273, 283; People v Terry, 138 AD3d
1484, 1484, lv denied 27 NY3d 1156). Indeed, 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” (People v Banks, 125 AD3d 1276, 1277, lv denied 25 NY3d
1159 [internal quotation marks omitted]). Moreover, the record does
not support the People’s contention that defendant pleaded guilty
before the court ruled on his suppression motion and thus forfeited
his challenge to the court’s suppression determination (see generally
People v Fernandez, 67 NY2d 686, 688; People v Scaccia, 6 AD3d 1105,
1105, lv denied 3 NY3d 681). Although the court noted during the plea
colloquy that it had not yet issued a written order denying
defendant’s motion, the court did issue an oral suppression ruling,
and a written order is not required in seeking to review an adverse
suppression ruling pursuant to CPL 710.70 (2) (see People v Elmer, 19
NY3d 501, 505). Contrary to the People’s contention, the court’s
comments that it intended to issue a written order did not constitute
                                  -2-                          176
                                                         KA 13-00677

a retraction of its oral order.

     On the merits, however, we conclude that the court properly
refused to suppress defendant’s statements to the police on the ground
that his indelible right to counsel was allegedly violated. Defendant
failed to meet his burden of establishing that his indelible right to
counsel had attached before he made his statements to the police (see
People v Castor, 128 AD3d 1357, 1358, lv denied 26 NY3d 927; People v
Brown, 46 AD3d 1128, 1129; see generally People v Cohen, 90 NY2d 632,
638-639).

     Finally, we reject defendant’s challenge to the factual
sufficiency of his plea allocution. It is well established that a
defendant who pleads guilty need not “acknowledge[] committing every
element of the pleaded-to offense . . . or provide[] a factual
exposition for each element of the pleaded-to offense” (People v
Seeber, 4 NY3d 780, 781). A plea will not be vacated where, as here,
the defendant does not negate an element of the pleaded-to offense
during the colloquy or otherwise cast doubt on his or her guilt or the
voluntariness of the plea (see Seeber, 4 NY3d at 781-782; People v
Jeanty, 41 AD3d 1223, 1223, lv denied 9 NY3d 923). Thus, we conclude
that, “even if ‘defendant’s allocution did not establish the essential
elements of the crime to which he pleaded guilty, it would not require
vacatur of his plea since there is no suggestion in the record that
the plea was improvident or baseless’ ” (People v O’Keefe, 170 AD2d
1020, 1020, lv denied 77 NY2d 965; see People v Pratcher, 50 AD3d
1063, 1064, lv denied 11 NY3d 793).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
