| People v Vilmont |
| 2023 NY Slip Op 02798 [216 AD3d 1113] |
| May 24, 2023 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent v Frantz Vilmont, Appellant. |
Leon M. Tracy, Jericho, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Tammy J. Smiley, Jason R.Richards, and Rebecca L. Abensur of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Terence P. Murphy, J.), rendered April 14, 2022, convicting him of endangering thewelfare of a child, upon his plea of guilty, and imposing sentence. The appeal brings upfor review the denial, after a hearing, of those branches of the defendant's omnibusmotion which were to suppress physical evidence and certain statements he made to lawenforcement officials.
Ordered that the judgment is affirmed.
The defendant was charged with, inter alia, assaulting his two daughters, who wereboth minors at the time. In his omnibus motion, the defendant moved, among otherthings, to suppress two statements he made to law enforcement officials when he wasinterviewed at his daughter's school, and physical evidence recovered from the police'sseizure of his two cell phones, an LG model and an Apple iPhone seized from thedefendant. After a suppression hearing, the Supreme Court denied those branches of thedefendant's omnibus motion. Subsequently, the defendant entered a plea of guilty to onecount of endangering the welfare of a child and purportedly waived his right toappeal.
Considering the totality of the circumstances, including the defendant's relativelylimited experience with the criminal justice system, the record does not demonstrate thatthe defendant knowingly, voluntarily, and intelligently waived the right to appeal (see People v Fahey, 200 AD3d978, 978-979 [2021]; People v Zaffuto, 138 AD3d 1156, 1156-1157 [2016]). TheSupreme Court's terse oral colloquy, which was not supplemented by a written waiverform, did not adequately advise the defendant of the nature of the right to appeal and theconsequences of waiving that right (see People v McKnight, 199 AD3d 705, 706 [2021]; People v Rose, 193 AD3d885, 886 [2021]; People vAlston, 163 AD3d 843 [2018]). As such, appellate review of the denial of thosebranches of the defendant's omnibus motion which were to suppress his statements tolaw enforcement officials and evidence recovered from the two cell phones is notprecluded.
Nevertheless, the Supreme Court properly denied those branches of the defendant'somnibus motion. Giving deference to the court's credibility determinations (see People v Hirji, 185 AD3d1053, 1055 [2020]), the evidence at the suppression hearing supported the court'sconclusion that the [*2]statements the defendant madeprior to the administration of Miranda warnings were not the product of acustodial interrogation (see Miranda v Arizona, 384 US 436 [1966]; People vYukl, 25 NY2d 585 [1969]). Under the totality of the circumstances here, areasonable person, innocent of any crime, would not have believed that he or she was incustody (see Miranda v Arizona, 384 US 436 [1966]; People v Yukl, 25NY2d 585 [1969]; People vSmall, 212 AD3d 655, 656 [2023]; People v Brown, 177 AD3d 763, 765 [2019]; People v Moore, 162 AD3d1123, 1127 [2018]; Peoplev Meyer, 119 AD3d 876, 876 [2014]). Further, the court's determination that thedefendant voluntarily consented to giving the police the LG phone was supported by theevidence in the record (seePeople v Burno, 130 AD3d 747, 747 [2015]). Contrary to the defendant'scontention, the evidence at the hearing also supported the court's determination that thepolice had probable cause to arrest the defendant and that his iPhone was seized incidentto his lawful arrest (see People vGeddes, 171 AD3d 1210, 1213 [2019]; People v Ward, 169 AD3d 833, 835 [2019]; People vTravis, 266 AD2d 410, 411 [1999]).
The defendant's remaining contention is improperly raised for the first time in hisreply brief and we decline to consider it (see People v Perez-Olivo, 127 AD3d 1110, 1111 [2015];People v Winkfield, 90AD3d 959, 960 [2011]; People v Boynton, 35 AD3d 875, 876 [2006]). Connolly,J.P., Maltese, Wooten and Voutsinas, JJ., concur.