Opinion
12936 Ind. No. 903/16 Case No. 2018-4721
01-21-2021
The PEOPLE of the State of New York, Respondent, v. Dwight THOMAS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Anjali Pathmanathan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Diana Wang of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Anjali Pathmanathan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Diana Wang of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Kapnick, Kern, Kennedy, JJ.
Judgment, Supreme Court, New York County (James M. Burke, J. at suppression motion; Gilbert C. Hong, J. at plea and sentencing), rendered July 11, 2017, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3½ to 7 years, unanimously affirmed.
We agree with defendant that his appeal waiver is unenforceable. However, we find that the court properly denied defendant's motion to suppress identification testimony without conducting a hearing pursuant to People v. Rodriguez , 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 (1992). Defendant did not set forth any facts to dispute the People's assertion that he and the identifying witness had a prior relationship familiarity that rendered the photo identification confirmatory. Therefore, there was no factual issue requiring a hearing (see e. g. People v. Marte, 103 A.D.3d 470, 470, 960 N.Y.S.2d 13 [1st Dept. 2013], lv denied 22 N.Y.3d 1140, 983 N.Y.S.2d 498, 6 N.E.3d 617 [2014] ). The court also properly relied on its own review of the grand jury minutes in confirming the People's uncontroverted assertions about the prior relationship between defendant and the witness (see People v. Rodriguez, 47 A.D.3d 417, 849 N.Y.S.2d 232 [1st Dept. 2008], lv denied 10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008] ), particularly where, in his own grand jury testimony, defendant admitted that he knew and frequently conversed with the witness. Thus, although defendant asserted that the issue of familiarity "need[ed] to be explored at a hearing," he provided no basis for doing so.
The record establishes that defendant's guilty plea was knowing, intelligent and voluntary, and the court providently exercised its discretion in denying defendant's motion to withdraw the plea. During the plea allocution, defendant specifically admitted that he had possessed a dangerous instrument with the intent to use it unlawfully against another, and nothing in the allocution negated any element of the crime. The item that defendant admitted to having possessed for the purpose of threatening or scaring others was capable of being a dangerous instrument under the circumstances of its use (see generally People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30 [1981] ), and defendant said nothing to the contrary when he admitted possessing a dangerous instrument.
We perceive no basis for reducing the sentence.