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In this Criminal action, defendant appeals from a judgment of the Supreme Court, Kings County, convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of suppression of identification testimony.

A Queens County Rape lawyer said that on the day after the Supreme Court denied suppression of identification testimony, the defendant agreed to plead guilty to rape in the first degree in exchange for a promised determinate sentence of nine years of imprisonment. During the course of the ensuing plea allocution, the Supreme Court advised the defendant of the terms of its sentencing commitment, and briefly explained that he would be waiving his right to appeal.

Although the defendant was asked directly by the Supreme Court whether he understood the nature of the waiver of the right to appeal, the defendant instead responded by asking the Supreme Court a question about the mandatory fees that would be imposed upon him as a result of his conviction. The defendant did not acknowledge in any manner that he understood the nature of the waiver. After both the Supreme Court and defense counsel attempted to clarify the fee issue, the Supreme Court asked the defendant whether he understood the explanation, and he replied “yes.”

The defendant further stated, in response to the Supreme Court’s inquiry, that although he had previously been confined to a hospital for mental illness, he now felt well psychologically. At the conclusion of the plea allocution, the Supreme Court asked whether a written waiver of the right to appeal had been signed, and defense counsel handed the Supreme Court a waiver form, stating that the defendant had executed the waiver form, and that counsel had witnessed it.

Nowhere in this record is there any indication that, prior to signing the waiver, the defendant had been advised of his right to take an appeal, that the defendant understood the nature of the waiver, or that the defendant’s waiver was executed voluntarily and knowingly. To the contrary, the defendant claimed, at sentencing, that his attorney had coerced him into pleading guilty and had misinformed him of the consequences of doing so, and claimed that his attorney had not provided him “with the proper paperwork,” but instead led him to believe that he would “receive a MICA [Mental Illness and Controlled-Substance Abuse] therapeutic program.”

Additionally, the Supreme Court did not question the defendant about the written waiver, and did not ascertain on the record that he understood its contents.

On appeal, the defendant contends that his waiver of the right to appeal is not enforceable because the Supreme Court provided virtually no explanation regarding the waiver and took no measures to ensure that he, a first felony offender with a history of mental illness, understood it and was validly waiving his right to appeal. The Court agreed.

In a case, the Court of Appeals first recognized that “the public interest concerns underlying plea bargains generally are served by enforcing waivers of the right to appeal,” observing that “the negotiating process serves little purpose if the terms of a carefully orchestrated bargain can subsequently be challenged”. However, “the opinion makes clear that a waiver of the right to appeal will not be enforced unless it was knowingly, intelligently and voluntarily made”. This determination must be made in the first instance by the trial court, which is in the best position to assess all of the relevant factors, including the reasonableness of the bargain, and the age and experience of the accused. Appellate courts are also entrusted with the responsibility to oversee the plea bargaining process, and must examine the record to ensure that the defendant’s waiver of the right to appeal reflects a knowing and voluntary choice. “While there is no requirement that the trial court engage in any particular litany in order to satisfy itself that these standards have been met, a knowing and voluntary waiver cannot be inferred from a silent record”.

In the case at bar, the Court is mindful of the fact that the written waiver signed by the defendant recited that he had been advised by the Supreme Court and by his attorney of the “nature of the rights” he was giving up, and explained that the right to appeal included, inter alia, the right to prosecute the appeal as a poor person, the right to have an attorney assigned in the event the defendant was indigent, and the right to submit a brief and/or argue before an appellate court any issues relating to the defendant’s conviction and sentence. Contrary to the conclusion reached by the dissent, we find, and the Court of Appeals has held, that a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the criminal defendant is voluntarily giving up that right.

Furthermore, despite the fact that the subject waiver form stated that it was signed after the Supreme Court advised the defendant of the “nature of the rights” he was giving up, there is no indication in the record that this was indeed the case. Rather, it appears that the defendant signed the written waiver prior to the commencement of the plea proceeding. Finally, in evaluating whether the record is sufficient to demonstrate a knowing, intelligent, and voluntary waiver of the right to appeal, it cannot be overlooked that, at the time he entered his plea, the 23-year-old defendant had never previously been convicted of a felony, and that he suffered from mental illness to such a severe degree that the prosecution was delayed on several occasions because of findings that he was unfit to proceed. Additionally, nowhere in the record did the defendant explicitly state that he waived his right to appeal. Considering all of these circumstances, we cannot conclude on this record that the defendant understood the implications of the waiver of the right to appeal, and voluntarily agreed to it. Accordingly, the waiver is unenforceable.

In the absence of a knowing, intelligent, and voluntary waiver of the right to appeal, the defendant retains his right to challenge the denial of suppression of the complainant’s lineup identification as the fruit of an illegal arrest.

Turning to the merits, the Court agrees with the defendant’s contention that the hearing record is inadequate to establish that his arrest was supported by probable cause.

“It is axiomatic that an officer may only seize and take into custody an individual when the officer has probable cause to believe that the person has committed a crime”. While probable cause does not require the same quantum of proof necessary to support a conviction, it does require the existence of facts and circumstances which, viewed together, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense.

Contrary to the Supreme Court’s determination, the evidence that the defendant was seen near the security booth of a large apartment complex, in the vicinity of the location where the rape occurred, did not rise to the level of probable cause. “It is well settled that the mere presence of an individual at a scene of criminal activity without any other indicia of criminal activity” is insufficient to establish probable cause. Here, there was no additional indicia of criminal activity beyond the defendant’s presence in the vicinity of the crime scene. There was no detailed description of the perpetrator, and no evidence that the defendant matched the general description given by the complainant except for race and height. While the complainant did indicate that the perpetrator was wearing dark clothing, a hooded sweatshirt, and a do-rag, the record is devoid of any indication of what the defendant was wearing when Aviles observed him near the security booth.

In light of the Court’s determination, there is no need to reach the defendant’s alternate argument that the Supreme Court erred in denying his motion to withdraw his plea of guilty without assigning new counsel.

Criminal cases like rape should be entrusted to diligent and responsible lawyers like our lawyers here in Stephen Bilkis and Associates. We have our Queens County Rape lawyers who will protect the victim from the commencement of the case filed against the assailant until the promulgation of judgment. For other concerns, we have our Queens County Criminal attorneys who will give you an advice as regards criminal matters. Contact us now, we will be glad to help you.

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