| People v Burbridge |
| 2021 NY Slip Op 03045 [194 AD3d 831] |
| May 12, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Burbridge, Appellant. |
Kathy Manley, Selkirk, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Craig S.Brown, J.), rendered April 3, 2017, convicting him of criminal possession of a weapon in thesecond degree, upon his plea of guilty, and sentencing him to a determinate term ofimprisonment of 13 years, to be followed by 5 years of postrelease supervision. The appealbrings up for review the denial, after a hearing, of those branches of the defendant's omnibusmotion which were to suppress physical evidence and his statement to law enforcementofficials.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed from a determinate term of imprisonment of 13 years, to befollowed by 5 years of postrelease supervision, to a determinate term of imprisonment of 8 years,to be followed by 5 years of postrelease supervision; as so modified, the judgment isaffirmed.
The record does not establish that the defendant knowingly, voluntarily, and intelligentlywaived his right to appeal (see People vBradshaw, 18 NY3d 257 [2011]). The County Court mischaracterized the scope of theappeal waiver by stating that the defendant's conviction and sentence would be final, and thewritten waiver form did not overcome the deficiencies in the court's explanation of the right toappeal, as it also suggested that the waiver is an absolute bar to taking an appeal and did notcontain any clarifying language that appellate review remained available for select issues (see People v Thomas, 34 NY3d545, 565-567 [2019]; People vPerrella, 188 AD3d 1263, 1264 [2020]; People v Underwood, 187 AD3d 1221, 1222 [2020]). Thedefendant's waiver of his right to seek appellate review of suppression determinations bywithdrawing all motions, whether pending or already decided, was also invalid (see generally People v Balkum, 71AD3d 1594, 1595 [2010]). Here, the waiver of suppression issues is included in the writtenwaiver of the right to appeal, and the court's colloquy regarding the defendant's waiver of hisright to seek appellate review of suppression determinations by withdrawing all motions failed tocure the deficiencies.
The County Court properly found that the defendant failed to meet his burden to establishthat the police detective who prepared the search warrant application made false statementsknowingly and intentionally or with reckless disregard for the truth (see Franks vDelaware, 438 US 154, 171 [1978]; People v Tambe, 71 NY2d 492, 504 [1988]; People v Nunziata, 10 AD3d 695,695 [2004]). Although the informant testified that he did not make certain statements that thedetective attributed to him in the warrant application, the court found that his testimony was notcredible. Moreover, the court credited the testimony of the detective. "The credibilitydeterminations of a hearing court following a suppression hearing are accorded great deferenceon appeal, and will not be disturbed unless clearly unsupported by the record" (People v Hobson, 111 AD3d 958,959 [2013]; see People v Prochilo, 41 NY2d [*2]759, 761[1977]). Contrary to the defendant's contention, there is no basis to disturb the court's credibilitydeterminations, which are supported by the record (see People v Kelly, 131 AD3d 484, 485 [2015]; People v Glenn, 53 AD3d 622, 624[2008]). Accordingly, the court properly determined that there was no basis to suppress thephysical evidence obtained from the defendant's home pursuant to the search warrant.
Contrary to the defendant's contention, the statement he made to a police detective prior tobeing given Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) wasspontaneous and not the result of any police conduct or questioning which reasonably could havebeen expected to elicit an inculpatory response from him (see People v Gunn, 176 AD3d 862, 863 [2019]; People v Foster, 153 AD3d 853,854 [2017]). The evidence elicited at the suppression hearing established that the defendant wassitting in his bedroom when a detective came into the room with a gun he found in the house,mentioned to the other detective in the room that he had located a gun, and placed the gun on thebed. The defendant then uttered that he had "forgot[ten] all about that," and that he had gotten thegun for protection. The defendant was handcuffed for safety at the time he made the statement,he was in his home, and he was not being questioned. Under these circumstances, the detective'sstatement to the other detective that he found the gun and the placement of the gun on the bedcould not have reasonably been expected to elicit an inculpatory response from the defendant(see People v Bryant, 87 AD2d 873 [1982], affd 59 NY2d 786 [1983]; cf.People v Ferro, 63 NY2d 316 [1984]). Accordingly, the County Court properly deniedsuppression of the statement.
Since the defendant failed to comply with the conditions of the plea agreement, the CountyCourt "was no longer bound by the original plea agreement, and had the right to impose a greatersentence" (People v Grant, 122AD3d 767, 767 [2014]; see Peoplev Diaz, 146 AD3d 803, 805 [2017]). However, "we have broad, plenary power tomodify an enhanced sentence that is harsh or excessive under the circumstances" (People vDiaz, 146 AD3d at 805; see CPL 470.15 [6] [b]). The defendant's contention that theenhanced sentence was excessive is not subject to preservation requirements (see People v Williams, 120 AD3d721, 724 [2014]). The enhanced sentence imposed was excessive to the extent indicatedherein. Chambers, J.P., Miller, Barros and Christopher, JJ., concur.