The People of the State of New York, Respondent, v JOVAN T. GRESHAM, Appellant.
Appellate Division of the Supreme Court of the State of New York, Third Department
June 22, 2017
151 A.D.3d 1175 | 57 N.Y.S.3d 532
Clark, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered June 4, 2013, convicting defendant upon his plea of guilty of the crimes of assault in the first degree and criminal possession of a weapon in the second degree (two counts).
Following a March 2011 incident in which defendant allegedly fired shots outside of a restaurant, police issued an attempt to locate bulletin to all patrol units, with a copy of defendant‘s photograph attached. Defendant was apprehended weeks later and a search of his person incident to his arrest revealed a loaded firearm. Defendant was thereafter charged in an eight-count indictment with attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree (five counts). The charges of attempted murder, assault and two of the five counts for possession of a weapon arose out of a February 2010 incident in which defendant allegedly shot another individual in the bathroom of the same restaurant where he allegedly fired shots in March 2011, while the remaining charges arose out of the March 2011 incident and the discovery of a handgun during the search incident to his arrest. Following a combined suppression hearing, County Court denied defendant‘s motion to suppress the handgun. Thereafter, in full satisfaction of the indictment, defendant pleaded guilty to assault in the first degree and two
Initially, County Court did not err in receiving into evidence at the suppression hearing the attempt to locate bulletin and an attached photograph of defendant. As established at the suppression hearing, although the police did not, pursuant to routine procedure, retain the original bulletin and attached photograph, the photograph in evidence was a printout of the same digital photograph that was printed and attached to the original bulletin. There is no indication that defendant specifically demanded the original printout of the digital photograph, and defense counsel conceded at the suppression hearing that his objections went to weight, rather than admissibility. While defendant asserts on appeal that County Court should have drawn an adverse inference against the People based on the failure to preserve the original printout, defendant did not request at the hearing that the court draw such an adverse inference. Moreover, even assuming that this permissive adverse inference is warranted at a suppression hearing, we discern no error, given the absence of any prejudice to defendant (see generally People v Durant, 26 NY3d 341, 347-348 [2015]; People v Handy, 20 NY3d 663, 667-669 [2013]; People v Shcherenkov, 21 AD3d 651, 652 [2005]).
We are also unpersuaded by defendant‘s contention that County Court should have suppressed the evidence found on his person because the police lacked probable cause to issue the attempt to locate bulletin and to thereafter arrest him in reliance on that bulletin. “Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of or as a result of communication with a fellow officer . . . in possession of information sufficient to constitute probable cause for the arrest” (People v Ketcham, 93 NY2d 416, 419-420 [1999] [internal quotation marks and citations omitted]; see People v Dowling, 75 AD3d 838, 840 [2010], lv denied 15 NY3d 952 [2010]).
Here, the restaurant owner and her daughter reported to the responding police officer that they had refused defendant—whom they knew as “Juice“—entry into the restaurant on March 17, 2011. The daughter reported that defendant became angry, shouted profanities, “flashed a gun” and told people to “move out [of] the way” and that, when she returned to the
Next, defendant argues that his guilty plea was not knowing, voluntary and intelligent. During the plea allocution, defendant admitted the conduct charged in each count, as read by County Court, and entered a guilty plea as to each. Contrary to his claims, defendant was not required to recite each element of the crimes or provide a further factual recitation, as “‘his affirmative responses to County Court‘s questions’ established the elements of the crime[s] charged” (People v Koechel, 132 AD3d 1020, 1021 [2015], lv denied 27 NY3d 1070 [2016], quoting People v Campbell, 66 AD3d 1059, 1060 [2009]; see People v Charleston, 142 AD3d 1248, 1249 [2016]).
However, as the People concede, defendant made statements at sentencing that cast doubt upon his guilt and the voluntariness of his plea, and County Court failed to satisfy its duty of engaging in a further inquiry to ensure that defendant‘s guilty plea was knowing and voluntary. “Although there is no mandatory catechism required on sentencing, the [trial] court should conduct a hearing when at plea-taking or upon sentencing it appears the defendant misapprehends the nature of the charges or the consequences of [the] plea” (People v Beasley, 25 NY2d 483, 488 [1969] [emphasis added and citation omitted];
At sentencing, defendant stated, “I just want to apologize to the [c]ourt for wasting the [c]ourt‘s time. I never meant to hurt anyone. Wrong place at the wrong time, and I made a mistake.” It is unclear whether defendant‘s remarks were in reference to the 2010 incident giving rise to the assault charge or the 2011 shooting incident outside the restaurant. However, when confronted by County Court with the fact that he had pleaded guilty to assault in the first degree, which requires intent to cause serious physical injury to another person (see
Garry, J.P., Lynch, Rose and Aarons, JJ., concur. Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Broome County for further proceedings not inconsistent with this Court‘s decision.