| People v Jemmott |
| 2015 NY Slip Op 01668 [125 AD3d 1005] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marvon Jemmott, Appellant. |
Andrew E. MacAskill, Westbury, N.Y., for appellant, and appellant pro se.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Judith R. Sternberg andDonald Berk of counsel), for respondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Nassau County(Berkowitz, J.), rendered May 18, 2011, convicting him of murder in the second degreeand tampering with physical evidence, upon his plea of guilty, and imposing sentence,and (2), by permission, from an order of the County Court, Nassau County (Berkowitz,J.), dated May 8, 2012, which denied, without a hearing, his motion pursuant to CPL440.10 to vacate the judgment rendered May 18, 2011. The appeal from the judgmentbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress his statements to law enforcement officials.
Ordered that the judgment and the order are affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v Lopez, 6 NY3d248, 256 [2006]). The record does not demonstrate that the defendant "grasped theconcept of the appeal waiver and the nature of the right he was forgoing" (People v Bradshaw, 18 NY3d257, 267 [2011]; see Peoplev Johnson, 113 AD3d 635, 635 [2014]). Since it cannot be said that heknowingly, intelligently, and voluntarily waived his right to appeal (see People v Pressley, 116AD3d 794 [2014]), review of the defendant's claims is not precluded.
"The credibility determinations of the Supreme Court following a suppressionhearing are entitled to great deference on appeal and will not be disturbed unless clearlyunsupported by the record" (People v Cuyler, 95 AD3d 900, 900-901 [2012] [internalquotation marks omitted]). Contrary to the defendant's contention, the evidence presentedat the suppression hearing supports the Supreme Court's determination that a reasonableperson, innocent of any crime, would not have believed that he was in custody prior tothe administration of Miranda warnings (see Miranda v Arizona, 384 US436, 444 [1966]; People v Yukl, 25 NY2d 585, 589 [1969]). Accordingly, thestatement made by the defendant on December 8, 2009, while being interviewed in hisown garage, was not the product of a custodial interrogation improperly conductedwithout the administration of Miranda warnings, and therefore, the court properlydenied that branch of the defendant's omnibus motion which was to suppress thatstatement.
[*2] The decision to permit adefendant to withdraw a previously entered plea of guilty, as well as the nature andextent of the fact-finding inquiry, rests largely within the sound discretion of the courtand generally will not be disturbed absent an improvident exercise of discretion (seeCPL 220.60 [3]; People vBrown, 14 NY3d 113, 116 [2010]; People v Alexander, 97 NY2d 482,485 [2002]; People vDeBenedetto, 120 AD3d 1428 [2014]; People v Bennett, 115 AD3d 973 [2014]; People v Howard, 109 AD3d487 [2013]). Here, the Supreme Court providently exercised its discretion indenying, without a hearing, the defendant's motion to withdraw his plea of guilty.
The defendant claims that his post-arrest statements should have been suppressedbecause the police failed to advise him, a Barbadian national, of his right to consularnotification pursuant to the Vienna Convention on Consular Relations. This contention iswithout merit. To the extent that the treaty does confer any individually enforceablerights, it is unquestionable that no remedy is required in the absence of a showing ofprejudice (see Breard v Greene, 523 US 371 [1998]). In the instant case, thedefendant has failed to demonstrate that he was prejudiced by the lack of notification(see People v Elkady, 287 AD2d 518, 519 [2001]).
The defendant moved to vacate the judgment of conviction pursuant to CPL 440.10,arguing, among other things, that he was deprived of the effective assistance of counsel.However, viewing the record as a whole, we conclude that the defendant was notdeprived of the effective assistance of counsel (see People v Benevento, 91NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Skelos, J.P., Balkin, Sgroi and LaSalle, JJ., concur.