| People v Almonor |
| 2014 NY Slip Op 07676 [122 AD3d 763] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Webster Almonor, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Winston McIntosh of counsel), for appellant,and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M.Castellano, Sharon Y. Brodt, and Andrea Alvarez-Calderon of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered June 23, 2010, convicting him of manslaughter in the first degree,upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Cooperman, J.), of those branches of the defendant's omnibusmotion which were to suppress physical evidence and his statements to law enforcementofficials.
Ordered that the judgment is affirmed.
The defendant was charged with, inter alia, murder in the second degree, and movedto suppress certain physical evidence and his statements to law enforcement officials.After a hearing, suppression was denied. The defendant subsequently pleaded guilty tomanslaughter in the first degree in exchange for a promised sentence. At the pleaallocution, the Supreme Court inquired into the defendant's understanding of the rightshe was forgoing by pleading guilty, and additionally asked if he was waiving his right toappeal. The defendant responded affirmatively. After accepting the defendant's plea, thecourt sentenced the defendant as promised.
The defendant contends, inter alia, that his waiver of the right to appeal was invalid,his motion to suppress was erroneously denied, and the sentence imposed wasexcessive.
The defendant did not validly waive the right to appeal since the court failed todistinguish between the rights automatically forfeited as a consequence of the defendant'splea of guilty and the separate and distinct right to appeal, thereby rendering the waiverineffective (see People v Brown, 122 AD3d 133 [2d Dept 2014]; People v Jacob, 94 AD3d 1142, 1143-1144 [2012]; People v Elcine, 43 AD3d1176, 1177 [2007]).
However, the Supreme Court properly denied those branches of the defendant'smotion which were to suppress physical evidence and his statements to law enforcementofficials. The arresting officers testified at the suppression hearing that when they arrivedat the defendant's residence his brother opened the door and consented to their entry intothe residence, where they administered Miranda warnings (see Miranda vArizona, 384 US 436 [1966]) to the defendant, and that the [*2]defendant voluntarily waived his Miranda rightsbefore giving statements. The hearing court's credibility determinations are entitled togreat deference on appeal and will not be disturbed unless clearly unsupported by therecord (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Grant, 83 AD3d862, 863 [2011]; People v Gomez, 204 AD2d 656, 657 [1994]). We discernno basis in the record to disturb the hearing court's determinations in this regard.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, raised in his pro se supplemental brief, areunpreserved for appellate review and, in any event, without merit. Mastro, J.P., Skelos,Roman and Maltese, JJ., concur.