Opinion
2012–03715 Ind.No. 99/10
03-11-2020
The PEOPLE, etc., Respondent, v. Juan GIRON, Appellant.
Janet E. Sabel, New York, N.Y. (Steven R. Berko of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Kathryn A.A. O'Neill of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Steven R. Berko of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Kathryn A.A. O'Neill of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.
The defendant was charged with murder in the second degree, robbery in the first degree, and robbery in the second degree. The defendant pleaded guilty to robbery in the first degree in satisfaction of the indictment.
We agree with the defendant that his waiver of his right to appeal was invalid (see People v. Lozada , 148 A.D.3d 826, 47 N.Y.S.3d 909 ; People v. Zeledon , 131 A.D.3d 553, 14 N.Y.S.3d 706 ; People v. Almonor , 122 A.D.3d 763, 996 N.Y.S.2d 158 ). The defendant's understanding of the nature of the rights he was waiving is not evident on the face of the record, and thus, the record does not demonstrate that the defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown , 122 A.D.3d 133, 138, 992 N.Y.S.2d 297 ).
However, the record demonstrates that the defendant was afforded the effective assistance of counsel. With respect to the pretrial suppression hearing, the defendant's counsel was not deficient for failing to demand the production of certain witnesses at the hearing or for failing to request suppression of the defendant's statement based on the failure of the People to produce the those witnesses. In the context of a Huntley hearing (see People v. Huntley , 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ), the People are not necessarily "mandated to produce all police officers who had contact with the defendant from arrest to the time that the challenged statements were elicited" ( People v. Witherspoon , 66 N.Y.2d 973, 974, 498 N.Y.S.2d 789, 489 N.E.2d 758 ; see People v. Cuevas , 172 A.D.3d 567, 100 N.Y.S.3d 257 ). The People are only required to produce police officers who interacted with a defendant prior to a confession where the defendant sets forth a " ‘bona fide factual predicate’ to demonstrate that the uncalled officers possessed material evidence on the question of voluntariness" ( People v. Cuevas , 172 A.D.3d at 567, 100 N.Y.S.3d 257, quoting People v. Witherspoon , 66 N.Y.2d at 974, 498 N.Y.S.2d 789, 489 N.E.2d 758 ). Here, the record does not show that there existed a bona fide factual predicate that would have required the production of the subject police witnesses (see People v. Cuevas , 172 A.D.3d at 567, 100 N.Y.S.3d 257 ). Therefore, it cannot be said that counsel was ineffective for failing to seek production of these police witnesses or failing to argue for suppression of evidence based on the failure of the People to produce the subject witnesses (see People v. Baez , 175 A.D.3d 553, 107 N.Y.S.3d 385 ; see also People v. Hines , 172 A.D.3d 1225, 1226, 101 N.Y.S.3d 145 ).
The defendant's counsel also was not ineffective for failing to seek a Payton hearing (see Payton v. New York , 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 ; People v. Baez , 175 A.D.3d 553, 107 N.Y.S.3d 385 ; see also People v. Hines , 172 A.D.3d at 1226, 101 N.Y.S.3d 145 ), inasmuch as the record does not demonstrate that there existed a factual predicate that would have warranted such a hearing (see People v. Garvin , 30 N.Y.3d 174, 177, 66 N.Y.S.3d 161, 88 N.E.3d 319 ; People v. Ortiz , 83 N.Y.2d 840–843, 611 N.Y.S.2d 500, 633 N.E.2d 1104 ). The defendant did not otherwise show that the representation provided by counsel at the hearing was deficient (see People v. Benevento , 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
The defendant's contention that the Supreme Court failed to consider youthful offender treatment is not barred by the defendant's failure to properly raise the issue at sentencing, or by his plea agreement (see People v. Rudolph , 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 ; People v. Pacheco , 110 A.D.3d 927, 973 N.Y.S.2d 704 ). Pursuant to CPL 720.20(1), "at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender." The defendant was an "eligible youth" at the time of sentencing ( CPL 720.10[2] ). The mandated determination was not made in this case. As the People concede, the sentencing court should have considered and determined whether the defendant should be treated as a youthful offender. Accordingly, the defendant's sentence must be vacated and the matter remitted to the Supreme Court, Queens County, for resentencing after determining whether the defendant should be adjudicated a youthful offender (see People v. Ramirez , 115 A.D.3d 992, 993, 983 N.Y.S.2d 57 ). We express no opinion as to whether the court should afford youthful offender status to the defendant.
SCHEINKMAN, P.J., COHEN, LASALLE and IANNACCI, JJ., concur.