SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1332
KA 09-01249
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
FLOYD ALSTON, DEFENDANT-APPELLANT.
MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered December 9, 2008. The judgment
convicted defendant, upon his plea of guilty, of robbery in the first
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 robbery in the first degree (Penal Law §
160.15 [4]). We agree with defendant that the record fails to
establish that his waiver of the right to appeal was knowing and
voluntary (see generally People v Lopez, 6 NY3d 248, 256). We
conclude that the single reference by Supreme Court to the signed
written waiver, i.e., whether defendant understood what he had signed,
is not sufficient to establish that defendant understood that he was
waiving a right that otherwise would have survived the guilty plea
(see People v Cooper, 19 NY3d 501, 510; People v Norton, 96 AD3d 1651,
1651-1652, lv denied 19 NY3d 999). We therefore conclude that
defendant’s contention that the court erred in refusing to suppress
identification evidence on the ground that the photo array was unduly
suggestive is not encompassed by the waiver (see People v Adger, 83
AD3d 1590, 1591, lv denied 17 NY3d 857). We further conclude,
however, that defendant’s contention is without merit. The court
properly determined that the People met their initial burden of
establishing that the police conduct with respect to the photo array
procedure was reasonable and that defendant failed to meet his
ultimate burden of proving that the photo array was unduly suggestive
(see People v Santiago, 96 AD3d 1495, 1496; see generally People v
Chipp, 75 NY2d 327, 335, cert denied 498 US 833). The subjects
depicted in the array were sufficiently similar in appearance so that
the viewer’s eye was not drawn to a particular photo “ ‘in such a way
as to indicate that the police were urging a particular
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KA 09-01249
selection’ ” (People v Weston, 83 AD3d 1511, 1511, lv denied 17 NY3d
823).
Entered: December 21, 2012 Frances E. Cafarell
Clerk of the Court