                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 19, 2016                       106634
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

FRANCIS J. ERO,
                    Appellant.
________________________________


Calendar Date:    April 28, 2016

Before:   McCarthy, J.P., Garry, Egan Jr., Devine and Aarons, JJ.

                              __________


     Rebecca L. Fox, Plattsburgh, for appellant.

      Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G.
Blatchley of counsel), for respondent.

                              __________


Aarons, J.

      Appeal from a judgment of the County Court of Clinton
County (Ryan, J.), rendered January 15, 2014, convicting
defendant upon his plea of guilty of the crime of grand larceny
in the fourth degree.

      After County Court denied defendant's motion to suppress a
statement made to the state trooper who arrested him on two bench
warrants, defendant pleaded guilty to grand larceny in the fourth
degree and waived his right to appeal. He was sentenced as a
second felony offender in accordance with the plea agreement to a
prison term of 2 to 4 years, to run concurrently with any
undischarged sentence he was currently serving. Defendant now
appeals.
                              -2-                106634

      Initially, we agree with defendant that the waiver of the
right to appeal was invalid. A review of the plea colloquy
reflects that County Court did not adequately explain the
separate and distinct nature of the right to appeal or confirm
that defendant had been advised, read or understood the appeal
waiver prior to it being executed (see People v Bradshaw, 18 NY3d
257, 264-265 [2011]; People v Jeffery, 135 AD3d 1235, 1236
[2016]; People v Atkinson, 124 AD3d 1149, 1150 [2015], lv denied
25 NY3d 949 [2015]; People v Burgette, 118 AD3d 1034, 1035
[2014], lv denied 24 NY3d 1118 [2015]). As such, defendant's
contentions on appeal are not precluded by the appeal waiver.

      Turning to defendant's contention that the statement he
made during the booking process should have been suppressed, we
find that County Court properly determined that the statement was
spontaneous and, therefore, admissible. "[S]pontaneous
statements made while in custody which are not the product of
questioning or its functional equivalent clearly are admissible
regardless of whether Miranda warnings were given" (People v
Kenyon, 108 AD3d 933, 936 [2013], lv denied 21 NY3d 1075 [2013];
see People v Harris, 57 NY2d 335, 342 [1982], cert denied 460 US
1047 [1983]; People v George, 127 AD3d 1496, 1497 [2015]). Here,
the testimony at the Huntley hearing from Brian Belson, a state
trooper, established that he arrested defendant on two bench
warrants. Belson testified that, because defendant was arrested
on the bench warrants, no Miranda warnings were issued because
there was no need to interview defendant. While processing
defendant, Belson informed defendant that he was also being
charged with petit larceny for stealing heaters from Price
Chopper in the Town of Plattsburgh – charges that had been
prepared by another trooper and who had asked Belson to process
defendant on that charge in the event that defendant was
arrested. In response, defendant stated that he had taken the
heaters "from Price Chopper in Champlain." Belson testified that
the comment made no sense to him until subsequently speaking with
an investigator following defendant's arraignment on the bench
warrants.

      The record establishes beyond a reasonable doubt that
Belson merely informed defendant of an additional charge for
which he was being processed and, in response, defendant
                              -3-                  106634

spontaneously made an incriminating statement. As nothing in the
record indicates that defendant's statement resulted from any
inducement, provocation, interrogation or its functional
equivalent, defendant's spontaneous statement was clearly
admissible (see People v Harris, 57 NY2d at 342; People v Rivers,
56 NY2d 476, 480 [1982]; People v George, 127 AD3d at 1497;
People v Rabideau, 82 AD3d 1283, 1284 [2011], lv denied 17 NY3d
799 [2011]; People v Roberts, 12 AD3d 835, 836 [2004], lv denied
4 NY3d 802 [2005]).

      To the extent that defendant challenges the sentence as
harsh and excessive, we are unpersuaded that County Court abused
its discretion in imposing the agreed-upon sentence or that there
are any extraordinary circumstances to warrant a reduction of the
sentence in the interest of justice (see People v Leone, 105 AD3d
1249, 1250 [2013], lv denied 21 NY3d 1017 [2013]; People v
Gazivoda, 68 AD3d 1346, 1347 [2009], lv denied 14 NY3d 840
[2010]).

     McCarthy, J.P., Garry, Egan Jr. and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
