Opinion
2012-08124, Ind. No. 11-00483.
05-25-2016
The PEOPLE, etc., respondent, v. Milton W. CARLOS, appellant.
Kenyon C. Trachte, Newburgh, NY, for appellant. David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz and Andrew R. Kass of counsel), for respondent.
Kenyon C. Trachte, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz and Andrew R. Kass of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered April 3, 2012, convicting him of criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements he made to law enforcement officials.
ORDERED that the judgment is affirmed.
At a suppression hearing, New York State Trooper Moore testified that on July 26, 2011, his dispatcher received a call from a loss prevention employee of a Walmart store, who said that there were two people in the store attempting to buy merchandise with fraudulent credit cards. Moore and his partner, State Trooper Kelly, drove to the store. While they were en route, the dispatcher relayed to them that the two individuals were seen leaving the store in a dark-colored Chevrolet TrailBlazer. As the troopers entered the Walmart parking lot, Moore observed a dark-colored Chevrolet TrailBlazer leaving the lot. Moore and Kelly then turned around and pulled over the TrailBlazer.
Kelly testified at the suppression hearing that he spoke to the front seat passenger, whom he identified as the defendant. The defendant provided Kelly with a Connecticut nondriver identification card with the name Jarmel Gilthris on it. Kelly informed the defendant that if he was using a fake name, the police would discover this after taking his fingerprints at the police station. The defendant then revealed that his real name was Milton W. Carlos.
At the conclusion of the hearing, the County Court denied those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials. The defendant was later convicted, upon his plea of guilty, of criminal possession of a forged instrument in the second degree. The defendant appeals.
Contrary to the People's contention, the defendant's purported waiver of his right to appeal was invalid. The record does not demonstrate that the defendant understood the nature of the right to appeal and the consequences of waiving it (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Argilagos, 136 A.D.3d 1050, 25 N.Y.S.3d 613; People v. Brown, 122 A.D.3d 133, 140, 992 N.Y.S.2d 297 ).
Contrary to the defendant's contention, the County Court properly denied those branches of his omnibus motion which were to suppress physical evidence and his statements to law enforcement officials. “The police have the right to stop a citizen and inquire of him [or her] if they have reasonable suspicion that criminal activity is afoot. And this is so ... even if the information prompting the inquiry is unsubstantiated hearsay” (People v. Landy, 59 N.Y.2d 369, 376, 465 N.Y.S.2d 857, 452 N.E.2d 1185 [citations omitted] ). Here, the police had reasonable suspicion to stop the vehicle in which the defendant was a passenger on the basis of the information they received from police radio transmissions (see People v. Cruz, 137 A.D.3d 1158, 1159, 27 N.Y.S.3d 643 ; People v. Ceruti, 133 A.D.3d 610, 611, 20 N.Y.S.3d 378 ; People v. Currie, 131 A.D.3d 1265, 1265, 16 N.Y.S.3d 866 ). Further, contrary to the defendant's contention, Kelly's warning to him that the police would discover his true name if he had given a false one did not require Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ). Kelly's warning was not reasonably likely to elicit an incriminating response (see People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 ). To the contrary, the defendant had already incriminated himself, and the warning gave him an opportunity to retract his prior incriminating response (see People v. Allen, 118 A.D.3d 902, 903, 987 N.Y.S.2d 445 ; People v. Ligon, 66 A.D.3d 516, 517, 887 N.Y.S.2d 60 ).