| People v Ero |
| 2016 NY Slip Op 03910 [139 AD3d 1248] |
| May 19, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vFrancis J. Ero, Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel),for respondent.
Aarons, J. Appeal from a judgment of the County Court of Clinton County (Ryan,J.), rendered January 15, 2014, convicting defendant upon his plea of guilty of the crimeof grand larceny in the fourth degree.
After County Court denied defendant's motion to suppress a statement made to thestate trooper who arrested him on two bench warrants, defendant pleaded guilty to grandlarceny in the fourth degree and waived his right to appeal. He was sentenced as a secondfelony offender in accordance with the plea agreement to a prison term of 2 to 4 years, torun concurrently with any undischarged sentence he was currently serving. Defendantnow appeals.
Initially, we agree with defendant that the waiver of the right to appeal was invalid.A review of the plea colloquy reflects that County Court did not adequately explain theseparate and distinct nature of the right to appeal or confirm that defendant had beenadvised, read or understood the appeal waiver prior to it being executed (see People v Bradshaw, 18NY3d 257, 264-265 [2011]; People v Jeffery, 135 AD3d 1235, 1236 [2016]; People v Atkinson, 124 AD3d1149, 1150 [2015], lv denied 25 NY3d 949 [2015]; People v Burgette, 118 AD3d1034, 1035 [2014], lv denied 24 NY3d 1118 [2015]). As such, defendant'scontentions on appeal are not precluded by the appeal waiver.
Turning to defendant's contention that the statement he made during the bookingprocess should have been suppressed, we find that County Court properly determinedthat the [*2]statement was spontaneous and, therefore,admissible. "[S]pontaneous statements made while in custody which are not the productof questioning or its functional equivalent clearly are admissible regardless of whetherMiranda warnings were given" (People v Kenyon, 108 AD3d 933, 936 [2013], lvdenied 21 NY3d 1075 [2013]; see People v Harris, 57 NY2d 335, 342[1982], cert denied 460 US 1047 [1983]; People v George, 127 AD3d 1496, 1497 [2015]). Here, thetestimony at the Huntley hearing from Brian Belson, a state trooper, establishedthat he arrested defendant on two bench warrants. Belson testified that, becausedefendant was arrested on the bench warrants, no Miranda warnings were issuedbecause there was no need to interview defendant. While processing defendant, Belsoninformed defendant that he was also being charged with petit larceny for stealing heatersfrom Price Chopper in the Town of Plattsburgh—charges that had been preparedby another trooper and who had asked Belson to process defendant on that charge in theevent that defendant was arrested. In response, defendant stated that he had taken theheaters "from Price Chopper in Champlain." Belson testified that the comment made nosense to him until subsequently speaking with an investigator following defendant'sarraignment on the bench warrants.
The record establishes beyond a reasonable doubt that Belson merely informeddefendant of an additional charge for which he was being processed and, in response,defendant spontaneously made an incriminating statement. As nothing in the recordindicates that defendant's statement resulted from any inducement, provocation,interrogation or its functional equivalent, defendant's spontaneous statement was clearlyadmissible (see People v Harris, 57 NY2d at 342; People v Rivers, 56NY2d 476, 480 [1982]; People v George, 127 AD3d at 1497; People v Rabideau, 82 AD3d1283, 1284 [2011], lv denied 17 NY3d 799 [2011]; People v Roberts, 12 AD3d835, 836 [2004], lv denied 4 NY3d 802 [2005]).
To the extent that defendant challenges the sentence as harsh and excessive, we areunpersuaded that County Court abused its discretion in imposing the agreed-uponsentence or that there are any extraordinary circumstances to warrant a reduction of thesentence in the interest of justice (see People v Leone, 105 AD3d 1249, 1250 [2013], lvdenied 21 NY3d 1017 [2013]; People v Gazivoda, 68 AD3d 1346, 1347 [2009], lvdenied 14 NY3d 840 [2010]).
McCarthy, J.P., Garry, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.