Opinion
No. 110744
06-16-2022
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.
Calendar Date:April 28, 2022
Catherine A. Barber, Guilderland, for appellant.
P. David Soares, District Attorney, Albany (Erin LaValley of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Reynolds Fitzgerald, Fisher and McShan, JJ.
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 in the second degree.
In the early morning hours of June 21, 2017, the victim was injured in the course of a robbery outside 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 car to engage in what he suspected was a drug deal. Investigators later viewed surveillance video from the gas station and came to believe that defendant was acting in concert with the individual who 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 and advised of his Miranda rights before being interviewed regarding what had transpired.
As a result of defendant's alleged involvement in the robbery, he was charged in a six-count indictment with various offenses. Following a Huntley hearing, defendant's motion to suppress his statements was denied. He thereafter pleaded guilty to robbery in the second degree in satisfaction of the indictment and purportedly waived his right to appeal. The plea agreement contemplated that defendant would be sentenced, as a second felony offender, to five years in prison and five years of postrelease supervision. County Court subsequently denied defendant's pro 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 to distinguish the waiver of the right to appeal from the other rights that defendant was forfeiting by pleading guilty and, further, neither adequately explained the nature of the waiver nor ascertained defendant's understanding of the ramifications thereof" (People v Alexander, 194 A.D.3d 1261, 1262 [2021] [citations omitted], lv denied 37 N.Y.3d 1094 [2021]; accord People v Davis, 199 A.D.3d 1123, 1124 [2021], lv denied 37 N.Y.3d 1160 [2022]). Those deficiencies were not cured by defendant's execution of a written waiver of appeal that we have previously found to be "overly broad, and County Court's colloquy did not cure its defects" (People v Stratton, 201 A.D.3d 1201, 1202 [2022] [citations omitted]; see People v Robinson, 195 A.D.3d 1235, 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 statements to police were voluntarily given, including that any custodial interrogation was preceded by the administration and the defendant's knowing waiver of his or her Miranda rights and were not the product of unduly coercive or deceptive police conduct" (People v High, 200 A.D.3d 1209, 1210 [2021] [internal quotation marks, brackets and citations omitted], lv denied 37 N.Y.3d 1161 [2022]; see People v Teixeira-Ingram, 199 A.D.3d 1240, 1241 [2021]). The hearing testimony from a police officer and a detective who responded to the scene of the robbery reflect that defendant gave his account of the robbery in response to both asking him what had happened, and both denied that they had placed him under arrest, detained him or threatened him in any way. After viewing the surveillance video, the detective and another investigator returned to the gas station on the evening of June 22, 2017 and placed defendant under arrest, at which point defendant made the unprompted comment that "he knew [the police] were coming back because he's black and a convicted felon." Defendant was then taken to the police station, where both the testimony and a video recording reflect that he was administered Miranda warnings and proceeded to freely answer questions regarding his involvement in the robbery.
Defendant presented no evidence contradicting the foregoing proof, and we defer to County Court's assessment that it was credible (see People v High, 200 A.D.3d at 1211; People v Vazquez, 145 A.D.3d 1268, 1270 [2016]). As County Court found, the proof established that defendant was questioned as a witness on June 21, 2017 and, because no "reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" at that time, no Miranda warnings were required (People v McCoy, 89 A.D.3d 1218, 1219 [2011] [internal quotation marks and citation omitted], lvs denied 18 N.Y.3d 959, 960 [2012]; see People v Lyons, 4 A.D.3d 549, 551-552 [2004]). The statement made by defendant upon his arrest on June 22, 2017 was also admissible despite the absence of prior Miranda warnings, as it was spontaneous and did not result from "'express questioning or its functional equivalent' by the police, or from any other external cause not generated by defendant himself" (People v Martin, 115 A.D.2d 178, 179 [1985], lv denied 67 N.Y.2d 653 [1986], quoting Rhode Island v Innis, 446 U.S. 291, 300-301 [1980]). Defendant was then administered Miranda warnings prior to any questioning at the police station and, after acknowledging that he understood his rights, waived them by "willingly discuss[ing] and answer[ing] questions" regarding his involvement in the robbery (People v Fiorino, 130 A.D.3d 1376, 1379-1380 [2015], lv denied 26 N.Y.3d 1087 [2015]; see People v Sirno, 76 N.Y.2d 967, 968 [1990]; People v Williams, 182 A.D.3d 776, 779 [2020], lvs denied 35 N.Y.3d 1070, 1071 [2020]). Accordingly, defendant's motion to suppress his statements was properly denied.
Defendant goes on to argue that his plea was not knowing, voluntary and intelligent because evidence subsequently emerged suggesting that one of the counts for which he was indicted - although not the one to which he pleaded guilty - could not have been proven by the People. Defendant orally raised that argument before County Court, but did not include it in the later written motion to withdraw his plea that the court directed him to file, leaving it far from clear that the issue is preserved for our review (see People v Klinger, 129 A.D.3d 1115, 1116 [2015]; People v Devault, 124 A.D.3d 1140, 1140-1141 [2015], lv denied 25 N.Y.3d 989 [2015]). Even accepting that it is preserved, however, "a guilty plea signals [the] defendant's 'intention not to litigate the question of his [or her] guilt, and necessarily involves the surrender of certain constitutional rights, including the right to confrontation, the privilege against self incrimination and the right to trial by jury'" (People v Taylor, 65 N.Y.2d 1, 5 [1985], quoting People v Lynn, 28 N.Y.2d 196, 201-202 [1971]; see People v West, 189 A.D.3d 1981, 1982-1983 [2020], lv denied 37 N.Y.3d 975 [2021]). A review of defendant's plea colloquy confirms that he "was adequately advised of the consequences of his plea," including that he was giving up the right to put 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 A.D.3d 1316, 1317 [2018], quoting People v Conceicao, 26 N.Y.3d 375, 382 [2015]; see People v Nunez, 56 A.D.3d 897, 898 [2008], lv denied 11 N.Y.3d 928 [2009]).
Defendant's motion papers were not included in the record on appeal, but we take judicial notice of them as court records (see People v Trichilo, 199 A.D.3d 1125, 1126 [2021]).
Finally, as defendant received the minimum prison term allowed by law (see Penal Law §§ 70.02 [1] [b]; 70.06 [6] [b]), his challenge to the agreed-upon sentence as harsh and excessive is meritless (see People v West, 189 A.D.3d at 1984). Defendant's remaining contentions have been examined and afford no basis for disturbing the judgment.
Clark, Reynolds Fitzgerald, Fisher and McShan, JJ., concur.
ORDERED that the judgment is affirmed.