| People v Odom |
| 2018 NY Slip Op 06270 [164 AD3d 1475] |
| September 26, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyrone Odom, Appellant. |
Paul Skip Laisure, New York, NY (Kendra L. Hutchinson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Merri Turk Lasky, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (DeborahStevens Modica, J.), rendered July 29, 2015, convicting him of attempted assault in the firstdegree, upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial of that branch of the defendant's omnibus motion which was to suppress his statements tolaw enforcement officials.
Ordered that the judgment is affirmed.
"[A] waiver [of the right to appeal] is ineffective where the court mischaracterizes the natureof the right to appeal" (People vLeach, 26 NY3d 1154, 1155 [2016]). Here, during the plea allocution, the SupremeCourt stated: "Ordinarily, after a trial you would have the right to appeal . . . Butwhen you plead guilty, you are agreeing to give up your right to appeal." The court's explanationof the right to appeal was "misleading because it suggest[ed] that only defendants who areconvicted after trial have a right to appeal" (People v Foster, 87 AD3d 299, 303 [2011]). Under thesecircumstances, the defendant's purported waiver of the right to appeal was invalid (see People v Lopez, 6 NY3d 248,256 [2006]).
The Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress an incriminating statement made to law enforcement officials. The Peopleestablished at the suppression hearing that the statement, which was made while the defendantwas in custody and before Miranda warnings were given (see Miranda v Arizona,384 US 436 [1966]), was spontaneous and was not triggered by any police questioning or otherconduct which reasonably could have been expected to elicit a statement from him (seePeople v Rivers, 56 NY2d 476, 479 [1982]; People v Reaves, 112 AD3d 746, 747 [2013]).
The defendant's contention that the Supreme Court misinformed him of the maximumsentence he would receive if he was convicted after a trial is unpreserved for appellate review,since the defendant did not raise this specific ground in his motion to withdraw his plea (seeCPL 470.05 [2]; People vGabbidon, 134 AD3d 736, 736 [2015]). In any event, after the court misstated thedefendant's maximum sentence during the plea allocution, the prosecutor immediately and [*2]accurately corrected the record. In addition, although thedefendant's claim that the court misled him as to his minimum sentence was raised during hismotion to withdraw his plea, the defendant's contention is not supported by the record (cf. People v Molina, 69 AD3d 960,961 [2010]). When considering whether a plea was knowing, intelligent, and voluntary, "[t]hatthe defendant allegedly received inaccurate information regarding his possible sentenceexposure" is one of several factors "which must be considered by the court, but it is not, in and ofitself, dispositive" (People v Garcia, 92 NY2d 869, 870 [1998]). Other factors include"the nature and terms of the agreement, the reasonableness of the bargain, and the age andexperience of the accused" (id. at 870 [internal quotation marks omitted]). Consideringthe record as a whole, we find that the defendant's plea was knowing, intelligent, and voluntary.Accordingly, we agree with the court's denial of the defendant's motion to withdraw his plea (see People v Sougou, 26 NY3d1052, 1055 [2015]). Chambers, J.P., Cohen, Duffy and Connolly, JJ., concur.