MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered May 13, 2016, convicting defendant upon his plea of guilty of the crime of attempted murder in the second degree.
During the early morning hours of May 5, 2015, defendant and Jaushiir Weaver shot into a crowd of people gathered outside a residential building in the City of Albany to avenge the murder of defendants cousin. Two individuals in the crowd were struck and injured, and a third victim was fatally wounded. Thereafter, defendant and Weaver, along with their get-away driver, Rashad Quintyne, were charged in a multicount indictment with various crimes in connection with the shooting. Following a combined pretrial Dunaway/Huntley/Wade/Mapp hearing, County Court, among other rulings, denied defendants suppression motions made with respect to his oral and written statements to police, identification testimony and tangible physical evidence. Prior to trial, and following a Sandoval/Molineaux hearing, the court partially granted the Peoples motion to introduce evidence of prior uncharged crimes and/or bad acts attributed to defendant and his codefendants that occurred earlier in the evening of the shootings. Defendant thereafter pleaded guilty to attempted murder in the second degree in full satisfaction of the indictment and waived his right to appeal, with the understanding that he would be sentenced, as a violent predicate offender, to a prison term of 25 years followed by five years of postrelease supervision.
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County Court sentenced defendant to a reduced prison term of 21 years, followed by five years of postrelease supervision. This appeal ensued.
We agree with defendant that his waiver of the right to appeal was invalid. “A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] [citation omitted]; see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019]). “ ‘In determining whether the record demonstrates that a defendant understood an appeal waivers consequences, proper considerations include the defendants consultation with counsel and on-the-record acknowledgments of understanding, a written appeal waiver that supplements or clarifies the courts oral advice and the defendants experience with the criminal justice system’ ” (People v. Gamble, 190 A.D.3d 1022, 1023–1024, 138 N.Y.S.3d 729 [2021], lv denied 36 N.Y.3d 1097, 144 N.Y.S.3d 134, 167 N.E.3d 1269 [Mar. 2, 2021], quoting People v. Thomas, 34 N.Y.3d at 560, 122 N.Y.S.3d 226, 144 N.E.3d 970). “[O]f paramount importance is the trial courts responsibility to ensure that [a] defendants full appreciation of the consequences and understanding of the terms and conditions of the plea and appeal waiver are apparent on the face of the record” (People v. Thomas, 34 N.Y.3d at 560, 122 N.Y.S.3d 226, 144 N.E.3d 970 [internal quotation marks and citation omitted]).
A review of County Courts brief colloquy with defendant reflects that the court “did not inform defendant that the right to appeal was separate and distinct from the rights [he] was forfeiting by pleading guilty and did not adequately explain the nature of the waiver or ascertain defendants knowledge of its ramifications” (People v. Williams, 190 A.D.3d 1192, 1193, 136 N.Y.S.3d 919 [2021]). In addition, the written waiver at issue was overbroad and purported to “encompass[ ] all issues arising from th[e] criminal proceeding. Although we have excused overly-broad written waivers where the courts oral colloquy with the defendant still permit[ted] the conclusion that the counseled defendant understood the distinction that some appellate review survived, County Courts terse discussion of defendants appellate rights fell short of drawing that distinction” (People v. Gervasio, 190 A.D.3d 1190, 1190–1191, 136 N.Y.S.3d 813 [2021] [internal quotation marks and citations omitted]). Indeed, the waiver at issue misadvised defendant that, as part of the plea bargain, he was “waiving and giving up all of [his] rights to appeal on all legal and constitutional grounds that [he] might have and that [his] waiver of [his] right to appeal will include not only everything that has occurred in this prosecution through today, [his] waiver of appeal will be extended forward in time and date to include the sentencing proceeding and the sentence imposed so long as the sentence imposed is consistent with the plea agreement in this case.” The record further demonstrates that County Court did not ascertain from defendant that he had conferred with counsel prior to the written waivers execution (see People v. Burnell, 183 A.D.3d 931, 932, 123 N.Y.S.3d 728 [2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 827, 151 N.E.3d 508 [2020]; People v. Dolder, 175 A.D.3d 753, 754, 103 N.Y.S.3d 867 [2019]). As such, the record fails to demonstrate that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Gamble, 190 A.D.3d at 1023, 138 N.Y.S.3d 729; People v. Brito, 184 A.D.3d 900, 901, 124 N.Y.S.3d 749 [2020]; People v. Burnell, 183 A.D.3d at 932, 123 N.Y.S.3d 728; People v. Alexander, 174 A.D.3d 1068, 1068, 104 N.Y.S.3d 765 [2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 625, 134 N.E.3d 624 [2019]).
Defendants challenge to the voluntariness of his plea is unpreserved for our review due to his failure to file an appropriate postallocution motion (see People v. Aponte, 190 A.D.3d 1031, 1032, 138 N.Y.S.3d 724 [2021]; People v. Apelles, 185 A.D.3d 1298, 1299, 127 N.Y.S.3d 652 [2020], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 287, 155 N.E.3d 780; People v. Brito, 184 A.D.3d at 901, 124 N.Y.S.3d 749; People v. Schmidt, 179 A.D.3d 1384, 1385, 114 N.Y.S.3d 737 [2020]). “Furthermore, the narrow exception to the preservation requirement was not implicated as the record does not disclose that defendant made any statements during the plea colloquy or at sentencing that cast doubt upon his guilt or otherwise called into question the voluntariness of the plea” (People v. Botts, 191 A.D.3d 1044, 1045, 140 N.Y.S.3d 632 [2021] [citation omitted], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 123, 167 N.E.3d 125 [Mar. 29, 2021]; see People v. Rodriguez, 185 A.D.3d 1233, 1235, 127 N.Y.S.3d 644 [2020], lv denied 36 N.Y.3d 975, 138 N.Y.S.3d 460, 162 N.E.3d 689 [2020]; People v. Schmidt, 179 A.D.3d at 1385, 114 N.Y.S.3d 737). As to defendants challenge to County Courts Molineaux ruling, his “entry of a valid guilty plea forfeited [his] right to challenge any aspect of [that] ruling” (People v. Bowden, 177 A.D.3d 1037, 1038–1039, 114 N.Y.S.3d 482 [2019] [internal quotation marks and citation omitted], lv denied 34 N.Y.3d 1157, 120 N.Y.S.3d 238, 142 N.E.3d 1140 [2020]).
Next, defendant contends that County Court erred in failing to suppress Weavers pretrial identification of defendant from a photo array. According to the testimony at the suppression hearing, the police recovered video footage from a surveillance camera near the location of the shootings after Weaver and Quintyne had been taken into custody and before defendant was arrested. The hearing testimony established that Weaver, when shown the video, immediately recognized and identified defendant in the video as an individual he knew as “Merk.” Weaver was then shown a photo array containing six “mug-shot” photos and selected defendants photo. We find that, under these circumstances, Weavers identification of defendant from the photo array was merely confirmatory, and no Wade issue was present (see People v. Cuevas, 133 A.D.2d 504, 505, 519 N.Y.S.2d 430 [1987], lv denied 70 N.Y.2d 930, 524 N.Y.S.2d 682, 519 N.E.2d 628 [1987]). Had a Wade issue been present, we would find that the photo array was not unduly suggestive. “A photo array is unduly suggestive if some feature or characteristic of one of the depicted individuals or photographs is so unique or distinctive that it draws the viewers attention to that photograph, thereby indicating that the police have selected that particular individual” (People v. Marryshow, 162 A.D.3d 1313, 1313, 79 N.Y.S.3d 377 [2018] [citations omitted]; see People v. Johnson, 176 A.D.3d 1392, 1394, 113 N.Y.S.3d 294 [2019], lvs denied 34 NY3d 1129, 1131, 118 N.Y.S.3d 545, 554, 141 N.E.3d 501 [2020]; People v. Quintana, 159 A.D.3d 1122, 1126, 71 N.Y.S.3d 752 [2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018]). Although it is not required that the individuals in a photo array be nearly identical to the defendant, their characteristics “must be sufficiently similar” to those of the defendant “so as to not ‘create a substantial likelihood that the defendant would be singled out for identification’ ” (People v. Lanier, 130 A.D.3d 1310, 1312, 15 N.Y.S.3d 241 [2015], lv denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015], quoting 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]; see People v. Cole, 150 A.D.3d 1476, 1477–1478, 52 N.Y.S.3d 744 [2017], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 428, 108 N.E.3d 502). All of the photos depict black males with similar eye color and facial hair with indistinguishable backgrounds behind them, in similar lighting conditions. Although, as defendant contends, the men are not at identical distances from the camera, nothing about defendants photo was “so distinctive that it would have drawn the viewers attention to that photograph, so as to create a substantial likelihood that he would be singled out for identification” (People v. Marryshow, 162 A.D.3d at 1315, 79 N.Y.S.3d 377; see People v. Al Haideri, 141 A.D.3d 742, 743–744, 36 N.Y.S.3d 244 [2016], lv denied 28 N.Y.3d 1025, 45 N.Y.S.3d 377, 68 N.E.3d 106 [2016]; People v. Lanier, 130 A.D.3d at 1312, 15 N.Y.S.3d 241).
We also reject defendants contention that the search warrant, obtained by police to photograph defendants injuries, failed to provide a sufficiently particular description of him
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and was not supported by probable cause. “To establish probable cause for the issuance of a search warrant, the warrant application must demonstrate that there is sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place” (People v. Cazeau, 192 A.D.3d 1388, 1388, 145 N.Y.S.3d 191 [2021] [internal quotation marks and citations omitted]; see People v. Luciano, 152 A.D.3d 989, 991, 59 N.Y.S.3d 547 [2017], lv denied 30 N.Y.3d 1020, 70 N.Y.S.3d 453, 93 N.E.3d 1217 [2017]). Here, the search warrant directed the police to search “[t]he person of Mark Bowman dob xx/xx/xx” for “[e]vidence consisting of physical injury including but not limited to bruising, swelling, lacerations, scratches, scrapes and scabbing and to document through photographic collection.” As County Court correctly determined, the descriptions in the warrant and its supporting affidavit were sufficiently definite to enable the police to identify the person and evidence that the magistrate had determined should be the subject of the search and seizure (see People v. Cowan, 177 A.D.3d 1173, 1176, 114 N.Y.S.3d 506 [2019], lv denied 34 N.Y.3d 1127, 118 N.Y.S.3d 546, 141 N.E.3d 502 [2020]). In addition, the applicants sworn allegations of fact and evidentiary material offered in support of the search warrant
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was sufficient to support a reasonable conclusion that evidence of a crime was to be found on defendants person (see People v. Schaefer, 163 A.D.3d 1179, 1181, 82 N.Y.S.3d 197 [2018], lv denied 32 N.Y.3d 1007, 86 N.Y.S.3d 766, 111 N.E.3d 1122 [2018]; People v. Vanness, 106 A.D.3d 1265, 1266–1267, 965 N.Y.S.2d 227 [2013], lv denied 22 N.Y.3d 1044, 981 N.Y.S.2d 378, 4 N.E.3d 390 [2013]), thus providing probable cause for the issuance of the search warrant.
Next, defendant argues that County Court erred in denying his motion to suppress his oral and written statements to a police detective that he contends were made while he was in custody and after he had invoked his right to counsel. It is well settled that Miranda warnings are required prior to custodial interrogation and that a statement obtained in violation of this principle must be suppressed (see Miranda v. Arizona, 384 U.S. 436, 471–472, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966]; People v. Berg, 92 N.Y.2d 701, 704, 685 N.Y.S.2d 906, 708 N.E.2d 979 [1999]; People v. Henry, 114 A.D.3d 1025, 1026, 980 N.Y.S.2d 594 [2014], lv dismissed 22 N.Y.3d 1199, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014]). “[T]he right to counsel indelibly attaches as soon as ‘a defendant in custody unequivocally requests the assistance of counsel’ ” (People v. Harris, 177 A.D.3d 1199, 1203, 115 N.Y.S.3d 477 [2019], lv denied 35 N.Y.3d 970, 125 N.Y.S.3d 26, 148 N.E.3d 490 [2020], quoting People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [1995]; see People v. Fiorino, 130 A.D.3d 1376, 1379, 15 N.Y.S.3d 498 [2015], lv denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015]). “Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendants demeanor, manner of expression and the particular words found to have been used by the defendant” (People v. Glover, 87 N.Y.2d at 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 [citations omitted]; accord People v. Henry, 133 A.D.3d 1085, 1086, 20 N.Y.S.3d 682 [2015]; People v. Jemmott, 116 A.D.3d 1244, 1246, 984 N.Y.S.2d 443 [2014]). “The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney, and a statement that is merely a forewarning of a possible, contingent desire to confer with counsel rather than an unequivocal statement of [a] defendants present desire to do so is not sufficient to invoke the right to counsel” (People v. Slocum, 133 A.D.3d 972, 975, 20 N.Y.S.3d 440 [2015] [internal quotation marks and citations omitted], appeal dismissed 29 N.Y.3d 954, 51 N.Y.S.3d 485, 73 N.E.3d 841 [2017]). “Generally, remarks that are subject to numerous objective interpretations or a defendants mere ‘suggestion that counsel might be desired ․ will not suffice’ ” (People v. Higgins, 124 A.D.3d 929, 931, 1 N.Y.S.3d 424 [2015], quoting People v. Mitchell, 2 N.Y.3d 272, 276, 778 N.Y.S.2d 427, 810 N.E.2d 879 [2004]).
The video recordings of defendants interrogation and the hearing testimony of, among others, the detective who primarily questioned defendant support County Courts determination that defendant did not invoke his right to counsel. Defendants initial interaction with the detective occurred in an interview room at the police station after defendant had been taken into custody for an unrelated investigation. Defendant complained of pain from injuries he claimed he sustained when police tackled him to take him into custody. After emergency medical services personnel assessed his injuries, it was decided that defendant would be taken to the hospital. Prior to the transport, the detective and another detective holding a camera entered the room and requested to photograph defendants injuries. Defendant initially consented stating, “Yeah, take the pictures,” but then refused to allow photographs, stating, “I dont want the pictures taken. Take me up to the hospital.” Defendant then stated, “No pictures until my lawyer gets here,” and repeated “no pictures until my lawyer gets on set.” The video recordings and the hearing testimony reflect that upon defendants return to the interview room approximately 21/212 hours later, the detective and his partner entered the room, took pedigree information from defendant and read defendant his Miranda warnings. After defendant indicated that he understood the warnings and was asked if he was willing to answer questions, defendant asked, “What if I say no,” to which the detective responded, “You can say no, we can ask them, you can say no,” and asked, “What if I got a lawyer” and “what if the lawyer that I got doesnt come.” Defendant was then Mirandized a second time and asked if he was willing to answer questions. During the next 31/212 hours, defendant was questioned and eventually admitted, among other things, that he was at the scene of the shootings and fired some shots.
We find that defendants statements – “No pictures until my lawyer gets here,” and “no pictures until my lawyer gets on set” – were not an unequivocal request for counsel. The hearing testimony reflects that the statements were interpreted by the detective as referring to a lawyer for his injuries, which is a reasonable interpretation in the context of defendants claim that the police were responsible for his injuries. In our view, defendants remarks are subject to more than one objective interpretation and do not constitute an unequivocal request for counsel (see People v. Higgins, 124 A.D.3d at 931, 1 N.Y.S.3d 424; People v. Isaac, 224 A.D.2d 993, 994, 637 N.Y.S.2d 827 [1996], lv denied 88 N.Y.2d 937, 647 N.Y.S.2d 170, 670 N.E.2d 454 [1996]).
We reach the same conclusion with respect to defendants post-Miranda questions. “[W]hat if I got a lawyer” and “What if the lawyer that I got doesnt come” can reasonably be viewed as related hypothetical requests for counsel (see People v. Meadows, 180 A.D.3d 1244, 1245, 118 N.Y.S.3d 803 [2020], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 635, 149 N.E.3d 396 [2020]), or a mere forewarning of a possible, contingent desire to confer with counsel as opposed to a present desire to do so (see People v. Slocum, 133 A.D.3d at 975, 20 N.Y.S.3d 440). “The suppression courts credibility determinations and choice between conflicting inferences to be drawn from the proof are granted deference and will not be disturbed unless unsupported by the record” (People v. Barski, 66 A.D.3d 1381, 1382, 886 N.Y.S.2d 285 [2009] [internal quotation marks and citations omitted], lv denied 13 N.Y.3d 905, 895 N.Y.S.2d 319, 922 N.E.2d 908 [2009]). We find that the record supports County Courts factual findings that defendant was given Miranda warnings that he acknowledged and knowingly waived and that no force, threats, promises or other forms of coercion or unfair inducement were used to secure defendants statements, and the motion to suppress his statements was properly denied.
We are unpersuaded that the sentence imposed was harsh and excessive. Initially we note that, given the invalidity of the appeal waiver, defendants challenge to the severity of his sentence is not foreclosed (see People v. Williams, 190 A.D.3d at 1193, 136 N.Y.S.3d 919; People v. Cruz, 186 A.D.3d 932, 933, 128 N.Y.S.3d 367 [2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 518, 158 N.E.3d 535 [2020]). “A sentence that falls within the permissible statutory range will not be disturbed unless it can be shown that the sentencing court abused its discretion or extraordinary circumstances exist warranting a modification” (People v. Cancer, 185 A.D.3d 1353, 1354, 126 N.Y.S.3d 439 [2020] [internal quotation marks and citations omitted]; see People v. Barzee, 190 A.D.3d 1016, 1021–1022, 138 N.Y.S.3d 718 [2021]). County Court sentenced defendant to a reduced prison term that was four years less than the sentencing promise made when defendant pleaded guilty. The transcript of the sentencing proceeding reflects that the court considered defendants circumstances, including the severity of the crime and defendants cooperation in testifying against a codefendant, which helped the People secure a conviction in that case. Upon review of the record, we discern no abuse of discretion or extraordinary circumstances warranting a modification of the sentence in the interest of justice (see People v. Bombard, 187 A.D.3d 1417, 1420, 133 N.Y.S.3d 669 [2020]; People v. Cancer, 185 A.D.3d at 1354, 126 N.Y.S.3d 439; People v. Rodriguez, 185 A.D.3d 1296, 1297, 125 N.Y.S.3d 898 [2020]). Finally, we find unpreserved defendants pro se contention that County Court erred in permitting the People to proceed on the first indictment, and his remaining pro se contentions are without merit.
ORDERED that the judgment is affirmed.
FOOTNOTES
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. Weaver was convicted, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree and his judgment of conviction was affirmed on appeal (People v. Weaver, 167 A.D.3d 1238, 90 N.Y.S.3d 359 [2018], lv denied 33 N.Y.3d 955, 100 N.Y.S.3d 187, 123 N.E.3d 846 [2019]).
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. The issuing magistrate was provided with defendants name, date of birth and a black and white copy of the photo array.
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. The documents provided to the magistrate included various case reports, the arrest report pertaining to Weavers arrest, the photo array and still images from the video surveillance.
Colangelo, J.
Egan Jr., J.P., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.