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

145
KA 12-00166
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL R. CINTRON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered January 5, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the third degree.

     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 attempted criminal possession of a
controlled substance in the third degree (Penal Law §§ 110.00, 220.16
[1]). Initially, we agree with defendant that his waiver of the right
to appeal is invalid because “ ‘the minimal inquiry made by County
Court was insufficient to establish that the court engage[d] the
defendant in an adequate colloquy to ensure that the waiver of the
right to appeal was a knowing and voluntary choice’ . . . , and
because the court ‘improperly conflated the rights automatically
forfeited by operation of law as the consequence of a guilty plea with
those rights voluntarily relinquished as the consequence of a waiver
of the right to appeal’ ” (People v Donaldson, 117 AD3d 1467, 1467, lv
denied 23 NY3d 1036).

     We reject defendant’s further contention that the court erred in
refusing to suppress his statements and physical evidence because “the
two-police-officer approach to the car was unwarranted.” It is well
settled that “[t]he approach of occupants of a stopped or parked
vehicle to request information is analyzed under the first tier of the
De Bour hierarchy . . . and need only be justified by an ‘articulable
basis,’ meaning an ‘objective, credible reason not necessarily
indicative of criminality’ ” (People v Grady, 272 AD2d 952, 952, lv
denied 95 NY2d 905, quoting People v Ocasio, 85 NY2d 982, 985; see
People v Stebbins, 278 AD2d 942, 942, lv denied 96 NY2d 807; see
                                 -2-                           145
                                                         KA 12-00166

generally People v De Bour, 40 NY2d 210, 222-223).

     The record of the suppression hearing establishes that the
vehicle was parked when the officers approached, and there is no
evidence that the driver’s ability to move the vehicle was blocked by
any patrol vehicles (see Ocasio, 85 NY2d at 984). “Further, in view
of the prior drug activity that had occurred in the [parking lot]
where the vehicle was parked and [the anonymous citizen’s tip] of drug
activity in that area, the officers possessed an objective, credible
reason to approach the vehicle” and ask defendant for identification
(People v Gandy, 85 AD3d 1595, 1596, lv denied 17 NY3d 859; see People
v Ramos, 60 AD3d 1317, 1317, lv denied 12 NY3d 928).




Entered:   February 6, 2015                    Frances E. Cafarell
                                               Clerk of the Court
