| People v Lilliard |
| 2022 NY Slip Op 03935 [206 AD3d 1241] |
| June 16, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v K-Won Lilliard, Appellant. |
Catherine A. Barber, Guilderland, for appellant.
P. David Soares, District Attorney, Albany (Erin LaValley of counsel), for respondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered April 17, 2018, convicting defendant upon his plea of guilty of the crime of robbery inthe second degree.
In the early morning hours of June 21, 2017, the victim was injured in the course of a robberyoutside of a Sunoco gas station in the City of Albany. Police responded and spoke to defendant,the clerk on duty at the gas station, who reported seeing a man arrive and get into the victim's carto engage in what he suspected was a drug deal. Investigators later viewed surveillance videofrom the gas station and came to believe that defendant was acting in concert with the individualwho committed the robbery. As such, they returned to the gas station on the evening of June 22,2017 and placed defendant under arrest. Defendant was then taken to the police station andadvised of his Miranda rights before being interviewed regarding what hadtranspired.
As a result of defendant's alleged involvement in the robbery, he was charged in a six-countindictment with various offenses. Following a Huntley hearing, defendant's motion tosuppress his statements was denied. He thereafter pleaded guilty to robbery in the second degreein satisfaction of the indictment and purportedly waived his right to appeal. The plea agreementcontemplated that defendant would be sentenced, as a second felony offender, to five years inprison and five years of postrelease supervision. County Court subsequently denied defendant'spro se motion to withdraw his plea and imposed the agreed-upon sentence. Defendant appeals,and we affirm.
Initially, as the People concede, defendant's appeal waiver is invalid. "County Court failed todistinguish the waiver of the right to appeal from the other rights that defendant was forfeiting bypleading guilty and, further, neither adequately explained the nature of the waiver nor ascertaineddefendant's understanding of the ramifications thereof" (People v Alexander, 194 AD3d 1261, 1262 [2021] [citationsomitted], lv denied 37 NY3d 1094 [2021]; accord People v Davis, 199 AD3d 1123, 1124 [2021], lvdenied 37 NY3d 1160 [2022]). Those deficiencies were not cured by defendant's executionof a written waiver of appeal that we have previously found to be "overly broad, and CountyCourt's colloquy did not cure its defects" (People v Stratton, 201 AD3d 1201, 1202 [2022] [citations omitted];see People v Robinson, 195 AD3d1235, 1236 [2021]).
Defendant next challenges the denial of his suppression motion. "[O]n a motion to suppress,the People bear the burden of proving beyond a reasonable doubt that the defendant's statementsto police were voluntarily given, including that any custodial interrogation was preceded by theadministration and the defendant's knowing waiver of his or her Miranda rights and werenot the product of unduly coercive or deceptive police conduct" (People v High, 200 AD3d 1209,1210 [2021] [internal quotation marks, brackets [*2]and citationsomitted], lv denied 37 NY3d 1161 [2022]; see People v Teixeira-Ingram, 199 AD3d 1240, 1241 [2021]). Thehearing testimony from a police officer and a detective who responded to the scene of the robberyreflect that defendant gave his account of the robbery in response to both asking him what hadhappened, and both denied that they had placed him under arrest, detained him or threatened himin any way. After viewing the surveillance video, the detective and another investigator returnedto the gas station on the evening of June 22, 2017 and placed defendant under arrest, at whichpoint defendant made the unprompted comment that "he knew [the police] were coming backbecause he's black and a convicted felon." Defendant was then taken to the police station, whereboth the testimony and a video recording reflect that he was administered Mirandawarnings and proceeded to freely answer questions regarding his involvement in therobbery.
Defendant presented no evidence contradicting the foregoing proof, and we defer to CountyCourt's assessment that it was credible (see People v High, 200 AD3d at 1211; People v Vazquez, 145 AD3d1268, 1270 [2016]). As County Court found, the proof established that defendant wasquestioned as a witness on June 21, 2017 and, because no "reasonable person innocent of anywrongdoing would have believed that he or she was not free to leave" at that time, noMiranda warnings were required (People v McCoy, 89 AD3d 1218, 1219 [2011] [internal quotationmarks and citation omitted], lv denied 18 NY3d 960 [2012]; see People v Lyons, 4 AD3d 549,551-552 [2004]). The statement made by defendant upon his arrest on June 22, 2017 was alsoadmissible despite the absence of prior Miranda warnings, as it was spontaneous and didnot result from " 'express questioning or its functional equivalent' by the police, or fromany other external cause not generated by defendant himself" (People v Martin, 115AD2d 178, 179 [1985] [citation omitted], lv denied 67 NY2d 653 [1986], quotingRhode Island v Innis, 446 US 291, 300-301 [1980]). Defendant was then administeredMiranda warnings prior to any questioning at the police station and, after acknowledgingthat he understood his rights, waived them by "willingly discuss[ing] and answer[ing] questions"regarding his involvement in the robbery (People v Fiorino, 130 AD3d 1376, 1379-1380 [2015], lvdenied 26 NY3d 1087 [2015]; see People v Sirno, 76 NY2d 967, 968 [1990]; People v Williams, 182 AD3d 776,779 [2020], lv denied 35 NY3d 1071 [2020]). Accordingly, defendant's motion tosuppress his statements was properly denied.
Defendant goes on to argue that his plea was not knowing, voluntary and intelligent becauseevidence subsequently emerged suggesting that one of the counts for which he wasindicted—although not the one to which he pleaded guilty—could not have beenproven by the People. Defendant orally raised that argument before County Court, but did notinclude it in the later [*3]written motion to withdraw his plea thatthe court directed him to file, leaving it far from clear that the issue is preserved for our review(see People v Klinger, 129 AD3d1115, 1116 [2015]; People vDevault, 124 AD3d 1140, 1140-1141 [2015], lv denied 25 NY3d 989[2015]).[FN*] Evenaccepting that it is preserved, however, "a guilty plea signals [the] defendant's 'intention not tolitigate the question of his [or her] guilt, and necessarily involves the surrender of certainconstitutional rights, including the right to confrontation, the privilege against self incriminationand the right to trial by jury' " (People v Taylor, 65 NY2d 1, 5 [1985], quotingPeople v Lynn, 28 NY2d 196, 201-202 [1971]; see People v West, 189 AD3d 1981, 1982-1983 [2020], lvdenied 37 NY3d 975 [2021]). A review of defendant's plea colloquy confirms that he "wasadequately advised of the consequences of his plea," including that he was giving up the right toput the People to their proof on the charges against him, and he therefore "made a 'knowing,voluntary and intelligent choice among alternative courses of action' " by entering it (People v Griffin, 165 AD3d 1316,1317 [2018], quoting People vConceicao, 26 NY3d 375, 382 [2015]; see People v Nunez, 56 AD3d 897, 898 [2008], lv denied11 NY3d 928 [2009]).
Finally, as defendant received the minimum prison term allowed by law (see PenalLaw §§ 70.02 [1] [b]; 70.06 [6] [b]), his challenge to the agreed-upon sentenceas harsh and excessive is meritless (see People v West, 189 AD3d at 1984). Defendant'sremaining contentions have been examined and afford no basis for disturbing the judgment.
Clark, Reynolds Fitzgerald, Fisher and McShan, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's motion papers werenot included in the record on appeal, but we take judicial notice of them as court records (see People v Trichilo, 199 AD3d1125, 1126 [2021]).