People v. Dacosta: A Vacated Plea Extinguishes Its Appeal Waiver; Police-Controlled Buys Can Supply Probable Cause Without a Darden Hearing

1. Introduction

In People v Dacosta (2026 NY Slip Op 04532 [3d Dept July 23, 2026]), the Appellate Division, Third Department affirmed (i) a judgment convicting Colon R. Dacosta, upon his March 2022 guilty plea, of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the seventh degree, and (ii) an order denying, without a hearing, his CPL 440.10 motion to vacate the judgment.

The case arose from a July 2019 search warrant for defendant’s mobile home, supported by a State Police investigator’s affidavit describing two controlled buys by a confidential informant (CI) under police supervision and surveillance. Execution of the warrant yielded, among other items, a loaded stolen handgun and narcotics. The procedural history was unusual: defendant first pleaded guilty in November 2019 and signed an appeal waiver; that plea was later vacated; during jury selection at a March 2022 trial he again pleaded guilty—this time without an appeal waiver. After absconding and later being apprehended, he unsuccessfully sought to withdraw the plea and then pursued a CPL 440.10 motion.

Key issues included (1) whether the earlier (2019) appeal waiver barred appellate review after the plea was vacated and replaced by a new (2022) plea without a waiver; (2) whether the search warrant was supported by probable cause under the Aguilar-Spinelli framework when the application relied on CI-controlled buys supervised by police; (3) whether the scope of the warrant permitted seizure of a gun found in a closet; (4) whether counsel was ineffective for not seeking a Darden hearing, suppression, or speedy-trial relief; and (5) whether the CPL 440.10 motion required a hearing.

2. Summary of the Opinion

  • Appeal waiver: The November 2019 appeal waiver did not bar review because the plea to which it attached was vacated and the March 2022 plea contained no waiver.
  • Probable cause / CI information: The warrant was supported by probable cause because police directly supervised and surveilled controlled buys, reducing reliance on the CI’s hearsay and supporting the CI’s reliability and basis of knowledge.
  • Scope of warrant: The warrant authorized a search of the mobile home and “all areas and containers within the subject premises,” so searching a closet and seizing the handgun there was permissible.
  • Ineffective assistance: Claims failed; among other things, counsel was not ineffective for failing to request a Darden hearing (not required where police corroboration via controlled buys sufficed), failing to pursue suppression, or failing to seek speedy-trial dismissal.
  • CPL 440.10 motion: Denial without a hearing was upheld; record-based claims belonged on direct appeal, and nonrecord “new evidence” assertions were deemed self-serving and insufficient to require a hearing.
  • People’s failure to brief: The Court admonished the District Attorney for failing to file a respondent’s brief despite extensions, citing County Law § 700 (1) and related precedent characterizing such failure as dereliction of duty.

3. Analysis

A. Precedents Cited

1) Effect of a vacated plea on an earlier appeal waiver

The Court held the earlier waiver did not carry over once the plea was vacated, relying on People v Favors, 166 AD3d 1534, 1534 [4th Dept 2018] and People v Graham, 187 AD2d 389, 389-390 [1st Dept 1992], lv denied 81 NY2d 840 [1993], and citing People v Sabb, 238 AD3d 1212, 1214 [3d Dept 2025], affd ___ NY3d ___, 2026 NY Slip Op 01590 [2026], as general context. These authorities support a straightforward proposition applied here: an appeal waiver is tethered to the plea bargain in which it was executed; when that plea is withdrawn/vacated and replaced by a new plea without a waiver, the prior waiver does not bar appellate review of issues arising from the later conviction.

2) Probable cause for search warrants; CI information and the Aguilar-Spinelli framework

The Court framed probable cause under People v Tucker, 222 AD3d 1038, 1040 [3d Dept 2023] and People v Alberts, 161 AD3d 1298, 1304 [3d Dept 2018], lv denied 31 NY3d 1114 [2018]: the application must support a reasonable belief that evidence of a crime may be found in the place to be searched. It then applied CI-specific rules from People v Merritt, 218 AD3d 1058, 1059 [3d Dept 2023], lv denied 40 NY3d 1093 [2024] and People v Pasco, 134 AD3d 1257, 1257 [3d Dept 2015], which require satisfaction of the two-part Aguilar-Spinelli test—(i) informant reliability and (ii) basis of knowledge.

Critically, the Court emphasized that the warrant here was not “entirely predicated” on CI reliability because law enforcement “had direct involvement in the controlled buy,” citing People v Luciano, 152 AD3d 989, 992 [3d Dept 2017], lv denied 30 NY3d 1020 [2017] and People v Marshall, 57 AD3d 1163, 1165 [3d Dept 2008]. The investigator attested that the CI arranged purchases in her presence, and the CI—under physical and audio surveillance—completed buys of suspected cocaine and substances field-testing positive for heroin and fentanyl. Those facts functioned as corroboration supplying both basis of knowledge and reliability through police observation and controlled procedures, consistent with People v Merritt’s explanation that basis of knowledge can be established by police investigation corroborating defendant’s actions.

3) Scope of a premises warrant; seizure of items found in a closet

Defendant’s argument that the warrant did not extend to his closet was rejected because the warrant authorized search of the mobile home and “all areas and containers within the subject premises.” The Court’s conclusion that seizure was lawful rested on the premise-warrant scope authorities it cited: People v Cole, 162 AD3d 1219, 1220 [3d Dept 2018], lv denied 32 NY3d 1002 [2018] and People v Gerow, 85 AD3d 1319, 1320 [3d Dept 2011]. These cases support the practical rule that a valid premises warrant generally authorizes searching typical repositories (including closets/containers) where the objects of the search may be found; contraband observed during such lawful search may be seized.

4) Ineffective assistance of counsel: standards and applications in this case

The Court applied the “meaningful representation” framework: to prevail, a defendant must show counsel failed to provide meaningful representation and that there were no strategic or other legitimate explanations, citing People v Harris, 246 AD3d 1293, 1298-1299 [3d Dept 2026], lv denied 45 NY3d 971 [2026] and People v Reinfurt, 241 AD3d 1015, 1025 [3d Dept 2025], lv denied 44 NY3d 1067 [2026].

a) Darden hearing

The Court noted defendant did not preserve a claim seeking a Darden hearing because counsel did not pursue one, citing People v Hogle, 236 AD3d 1114, 1115 [3d Dept 2025], lv denied 43 NY3d 1009 [2025]; People v Nellons, 187 AD3d 1574, 1575 [4th Dept 2020], lv denied 36 NY3d 1058 [2021]; People v Shabazz, 177 AD3d 1170, 1173 [3d Dept 2019]; and People v Brown, 167 AD3d 1331, 1333 [3d Dept 2018]. But on the merits of ineffectiveness, the Court explained that a Darden hearing is required only when the People rely on CI statements to establish probable cause, citing People v Jackson, 189 AD3d 1705, 1705 [3d Dept 2020], lv denied 36 NY3d 1098 [2021] and People v Givans, 170 AD3d 1638, 1639 [4th Dept 2019].

Where police corroboration makes probable cause not solely CI-dependent, a Darden hearing is not required. The Court cited People v Crooks, 27 NY3d 609, 614-615 [2016] (a key Court of Appeals anchor on when a Darden hearing is necessary), and also referenced People v Luciano, 152 AD3d at 992-993 and People v Kirkley, 172 AD3d 1541, 1542 [3d Dept 2019], lv denied 33 NY3d 1106 [2019], as consistent applications. Therefore, counsel’s failure to request such a hearing did not constitute ineffective assistance, with the Court citing People v Reichel, 211 AD3d 1090, 1091 [3d Dept 2022], lv denied 39 NY3d 1113 [2023] and People v Ruffin, 191 AD3d 1174, 1182 [3d Dept 2021], lv denied 37 NY3d 960 [2021].

b) Suppression motion

For similar reasons, the Court rejected the argument that counsel was ineffective for failing to pursue suppression, citing again People v Reichel, 211 AD3d at 1091 and also People v Agueda, 202 AD3d 1153, 1155-1156 [3d Dept 2022], lv denied 38 NY3d 1031 [2022] and People v Ballard, 200 AD3d 1476, 1478 [3d Dept 2021], lv denied 38 NY3d 925 [2022]. The implicit influence of these cases is practical: where the underlying suppression theories lack merit (valid warrant, proper scope), counsel is not ineffective for declining to pursue them.

c) Speedy trial waiver

Defendant argued counsel failed to pursue speedy-trial dismissal, but the Court emphasized that counsel can waive speedy-trial rights; it is not a decision so “fundamental” that only the defendant can make it, relying on People v Bender, 236 AD3d 1184, 1190 [3d Dept 2025], affd ___ NY3d ___, 2026 NY Slip Op 01444 [2026] and People v Strauss, 179 AD3d 1487, 1489 [4th Dept 2020], lv denied 35 NY3d 974 [2020]. Additionally, the Court noted the initial plea occurred before the six-month clock expired (CPL 30.30 [4] [a]), undercutting prejudice.

d) Overall representation and plea context

The Court evaluated counsel performance against the overall case posture, citing People v Clay, 245 AD3d 994, 997 [3d Dept 2026], lv denied 45 NY3d 935 [2026] (extremely favorable plea versus significant exposure). It concluded defendant failed to negate strategic/legitimate reasons across multiple attorneys, citing People v Gonyea, 211 AD3d 1102, 1105 [3d Dept 2022], lv denied 39 NY3d 1110 [2023] and People v Mowry, 246 AD3d 1288, 1292 [3d Dept 2026], lv denied 45 NY3d 973 [2026].

5) CPL 440.10 standards: when a hearing is required; treatment of record-based and “self-serving” claims

The Court reiterated that CPL article 440 relief and whether to hold a hearing lies within the trial court’s discretion, citing People v Phelps, 236 AD3d 1194, 1195 [3d Dept 2025] and People v Nelson, 243 AD3d 958, 961 [3d Dept 2025]. A hearing is required only if submissions show nonrecord facts that are material and would entitle defendant to relief, citing People v Wilcox, 218 AD3d 965, 966 [3d Dept 2023] and People v Carota, 235 AD3d 1069, 1071 [3d Dept 2025], lv denied 43 NY3d 962 [2025].

The Court treated defendant’s renewed search-warrant challenges as record-based and therefore properly addressed on direct appeal, citing People v Carota, 235 AD3d at 1071. As to claimed “new evidence” tied to a prior traffic stop, the Court upheld summary denial because the assertions were supported only by self-serving affidavits by defendant or interested parties, citing People v Roque, 234 AD3d 1050, 1054 [3d Dept 2025], lv denied 43 NY3d 946 [2025]; People v Clark, 231 AD3d 1291, 1295 [3d Dept 2024], lv denied 43 NY3d 943 [2025]; and People v Hooker, 230 AD3d 1465, 1468-1469 [3d Dept 2024]. The Court further relied on People v Oquendo, 248 AD3d 1325, 1336-1337 [3d Dept 2026], CPL 440.30 [4] [d], People v Gonyea, 211 AD3d at 1106 and People v Spradlin, 188 AD3d 1454, 1460-1461 [3d Dept 2020], lv denied 37 NY3d 960 [2021], to confirm that unsupported allegations—even when packaged as ineffective assistance—may be summarily rejected.

6) Prosecutor’s duty to file a respondent’s brief

Although not outcome-determinative, the Court issued a pointed reminder that District Attorneys must file a brief on a defendant’s appeal under County Law § 700 (1). It cited People v Meade, 195 AD2d 756, 757 [3d Dept 1993], abrogated on other grounds by People v Quinones, 95 NY2d 349 [2000], along with People v Sawyer, 188 AD2d 939, 940 [3d Dept 1992], People v Maull, 218 AD3d 1236, 1243 [4th Dept 2023], People v Coger, 2 AD3d 1279, 1280 [4th Dept 2003], lv denied 2 NY3d 738 [2004], People v Herman, 187 AD2d 1027, 1028 [4th Dept 1992], and People v Vullo, 153 AD3d 1630, 1631 [4th Dept 2017], lv denied 30 NY3d 1064 [2017]. The combined effect of these citations is institutional: appellate courts expect adversarial briefing, and repeated noncompliance is treated as a serious lapse even when the conviction is ultimately affirmed.

B. Legal Reasoning

  1. Appellate posture first: The Court cleared the procedural gate by holding the 2019 appeal waiver irrelevant after vacatur, enabling review of the warrant/suppression issues on the merits.
  2. Warrant validity: Applying Aguilar-Spinelli principles as operationalized in the Third Department’s controlled-buy cases, the Court treated police-supervised controlled buys (with audio/physical surveillance and contemporaneous observation of arrangement and execution) as corroboration that supplies probable cause even absent a CI affidavit and even where the CI’s broader history is not exhaustively detailed.
  3. Warrant scope: Because the warrant authorized search of the entire mobile home and containers, a closet fell within scope; seizure of the handgun was thus lawful.
  4. Ineffective assistance: The Court evaluated each claimed omission (no Darden hearing request; no suppression litigation; speedy-trial arguments) against whether it would have had legal traction. Finding the underlying claims weak or legally unavailable, the Court concluded defendant failed to show lack of strategic/legitimate explanations or prejudice in the meaningful-representation sense.
  5. CPL 440.10 handling: The Court applied a disciplined division between (a) record-based issues for direct appeal and (b) nonrecord claims requiring competent, material submissions. Self-serving affidavits without objective support did not warrant a hearing.
  6. Footnote on chain of custody: The Court also disposed of a chain-of-custody critique as immaterial because defendant’s convictions were based on items seized in the warrant execution, not the CI-buy substances.

C. Impact

  • Plea/waiver practice: The decision reinforces that an appeal waiver does not “float” across vacated pleas. Prosecutors seeking to preserve waiver benefits must obtain a new waiver in any subsequent plea.
  • Search-warrant litigation in controlled-buy cases: The opinion strengthens the practical evidentiary blueprint for warrant applications: police supervision and surveillance of controlled buys can substantially reduce reliance on CI credibility showings and can defeat demands for a Darden hearing when probable cause is not CI-statement-dependent.
  • Defense strategy / ineffective assistance claims: The Court signals that ineffectiveness arguments premised on failure to bring low-merit suppression or Darden applications will be difficult where the warrant record reflects robust police corroboration.
  • CPL 440.10 gatekeeping: The decision continues the trend of strict screening: conclusory or self-interested affidavits, without corroboration, are unlikely to trigger hearings—especially where claims substantially overlap with direct-appeal issues.
  • Institutional enforcement of briefing duties: The admonition to the People underscores appellate expectations and may embolden future panels to impose stronger remedies or sanctions in chronic non-briefing situations, even if none were imposed here.

4. Complex Concepts Simplified

  • Appeal waiver: A defendant may give up (waive) some appellate rights as part of a plea deal. This case emphasizes that the waiver is tied to that specific plea; if the plea is vacated, the waiver generally falls with it unless a new waiver is executed.
  • Probable cause (search warrant): Enough reliable information to justify a reasonable belief that evidence of a crime will be found at the location to be searched.
  • Aguilar-Spinelli test: When police rely on an informant, courts evaluate (1) the informant’s reliability and (2) the basis of the informant’s knowledge. Police-supervised controlled buys can supply both through corroboration.
  • Controlled buy: A monitored purchase of drugs arranged by police (often using an informant), typically with searches of the informant before/after, surveillance, and documentation—used to corroborate drug trafficking at a location.
  • Darden hearing: A proceeding to test whether a confidential informant exists and/or whether reliance on the CI’s information to establish probable cause is justified. It is generally triggered when probable cause depends on CI statements rather than independent police corroboration.
  • CPL 440.10 motion: A post-judgment motion to vacate a conviction, often based on matters outside the trial record. A hearing is not automatic; it requires material, potentially outcome-changing nonrecord facts supported by competent submissions.
  • CPL 30.30 speedy trial: A statutory readiness rule (not the constitutional speedy-trial test). Certain time is excludable; counsel may waive it; and timing can be affected by pleas and procedural events.
  • Meaningful representation: New York’s ineffective-assistance standard focuses on whether counsel’s overall performance was meaningful and whether challenged decisions had strategic or legitimate explanations, viewed in context.

5. Conclusion

People v Dacosta affirms a conviction and a CPL 440.10 denial while clarifying several recurring procedural and suppression themes: an appeal waiver from a plea that is later vacated does not bar appeals from a subsequent plea that contains no waiver; police-supervised controlled buys can provide sufficient corroboration to establish probable cause under Aguilar-Spinelli principles and can make a Darden hearing unnecessary; and CPL 440.10 hearings are not required where claims are record-based or supported only by self-serving affidavits. The decision also reiterates a systemic point: prosecutors have a statutory duty to brief criminal appeals, and failure to do so is treated as a serious dereliction even when the conviction is affirmed.