Opinion
14864 Ind. No. 3522/2015 Case No.2018–2585
12-16-2021
The PEOPLE of the State of New York, Respondent, v. Girael RUPERTO, Defendant–Appellant.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Katrina Jean Myers of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Reva Grace Phillips of counsel), for respondent.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Katrina Jean Myers of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Reva Grace Phillips of counsel), for respondent.
Kapnick, J.P., Friedman, Gonza´lez, Rodriguez, Pitt, JJ.
Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered May 4, 2018, convicting defendant, upon his plea of guilty, of robbery in the second degree as a hate crime, and sentencing him, as a second felony offender, to a term of 10½ years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 561–562, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ), thereby foreclosing review of his suppression and excessive sentence claims. To the extent the court's oral colloquy could be viewed as suggesting that defendant was waiving all appellate rights, any ambiguity was resolved by the written waiver (see People v. Ramos, 7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ; People v. Wolfe, 189 A.D.3d 633, 134 N.Y.S.3d 707 [1st Dept. 2020], lv denied 36 N.Y.3d 1101, 144 N.Y.S.3d 120, 167 N.E.3d 1255 [2021] ), because it contained "clarifying language ... that appellate review remained available for certain issues, ... indicating, therefore, that the right to take an appeal was retained" ( Thomas, 34 N.Y.3d at 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 ). Defendant acknowledged that he discussed the written waiver with his attorney and understood it.
In any event, we find that the court properly denied defendant's motion to suppress lineup identifications. The lineup was not unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ; People v. Dabdaub, 186 A.D.2d 481, 589 N.Y.S.2d 407 [1st Dept. 1992], lv denied 81 N.Y.2d 787, 594 N.Y.S.2d 734, 610 N.E.2d 407 [1993] ), and defendant's suppression arguments are unpersuasive. We also perceive no basis for reducing the sentence.