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People v. Hankerson

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 24, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RICHARD R. HANKERSON, DEFENDANT-APPELLANT.

Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered October 12, 2005. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the first degree.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND PINE, JJ.

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 attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3]). We agree with defendant that his waiver of the right to appeal is invalid. A single reference by the prosecutor to defendant's agreement to waive that right does not constitute " an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice' " (People v Braswell, 49 AD3d 1190, 1191, lv denied 10 NY3d 860). Although the invalid waiver of the right to appeal thus does not encompass defendant's further contention that County Court erred in refusing to suppress identification testimony, we nevertheless reject that contention. The People met their initial burden of establishing the reasonableness of the police conduct with respect to the showup identification procedures, and defendant failed to establish that those procedures were unduly suggestive (see People v Jackson, 98 NY2d 555, 559; People v Morgan, 302 AD2d 983, 984, lv denied 99 NY2d 631).

20090424

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