THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. BOBBY CLEGG III DEFENDANT APPELLANT APPEAL NO (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, that part of defendant's omnibus motion seeking to suppress his statements and information obtained during the interview in the parole office is granted and the matter is remitted to Supreme Court, Ontario County, for further proceedings on the indictment.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). In appeal No. 2, defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the second degree (§ 160.10 [1]). Preliminarily, we agree with defendant in both appeals that, contrary to the People's assertion, the purported waiver of the right to appeal is not enforceable inasmuch as the totality of the circumstances fails to show that defendant “understood the nature of the appellate rights being waived” (People v Thomas, 34 NY3d 545, 559 [2019], cert denied 589 US 1302 [2020]; see People v Davis, 189 AD3d 2159, 2159 [4th Dept 2020], lv denied 36 NY3d 1118 [2021]).

In appeal No. 2, defendant contends that County Court (Dennis, J.) erred in refusing to suppress statements that he made to investigators and a call log of his cell phone that he showed to them. We agree. It is well settled that Miranda warnings must be given when a defendant is subject to custodial interrogation (see People v Paulman, 5 NY3d 122, 129 [2005]; People v Berg, 92 NY2d 701, 704 [1999]; People v Hughes, 199 AD3d 1332, 1334 [4th Dept 2021]). “To ascertain custodial status, we must consider ‘whether a reasonable person innocent of any wrongdoing would have believed that [they were] not free to leave’ ․ and whether there has been a ‘forcible seizure which curtails a person's freedom of action to the degree associated with a formal arrest’ ” (People v Cabrera, 41 NY3d 35, 52 [2023]). “In determining whether suppression is required, the court should consider: (1) the amount of time the defendant spent with the police, (2) whether [the defendant's] freedom of action was restricted in any significant manner, (3) the location and atmosphere in which the defendant was questioned, (4) the degree of cooperation exhibited by the defendant, (5) whether [the defendant] was apprised of [their] constitutional rights, and (6) whether the questioning was investigatory or accusatory in nature” (Hughes, 199 AD3d at 1334 [internal quotation marks omitted]; see People v Lunderman, 19 AD3d 1067, 1068-1069 [4th Dept 2005], lv denied 5 NY3d 830 [2005]). In determining whether a defendant is in custody, the subjective beliefs of the defendant and the subjective intent of the officers are not determinative (see Hughes, 199 AD3d at 1334; People v Torres, 172 AD3d 758, 760 [2d Dept 2019]).

Here, defendant was a suspect in the burglary of the victim's home after defendant's fingerprint was found on a bedroom window. Investigators learned that defendant was scheduled to meet his parole officer. After defendant walked into his parole officer's office, three police investigators entered the office to question him. At no point during the questioning of defendant did the officers give defendant his Miranda warnings or inform defendant that he was free to leave. Furthermore, the investigator who testified at the suppression hearing could not answer definitively whether defendant would have violated parole if he had refused to talk with the investigators and left the office. Defendant met with his parole officer only after the investigators concluded their interview. Under these circumstances, a reasonable person would have thought that they were not free to leave during questioning (see generally People v Moore, 79 AD2d 619, 620 [2d Dept 1980]). Moreover, the questions by the investigators were accusatory in nature, rather than merely investigatory, and were designed to elicit an incriminating response (see generally People v Robinson, 45 NY3d 243, 248 [2025]). We conclude that defendant was in custody and was subjected to interrogation. Thus, the court should have suppressed the statements made by defendant at the parole office. We further agree with defendant that because the investigators obtained the cell phone call log as a result of their unlawful interrogation of defendant in the parole office, the call log also should have been suppressed (see Torres, 172 AD3d at 761; People v Blacks, 153 AD3d 720, 722 [2d Dept 2017], lv denied 30 NY3d 1017 [2017]; see generally People v Holmes, 145 AD2d 908, 909 [4th Dept 1988], lv denied 74 NY2d 897 [1989]).

In the absence of any proof that defendant would have pleaded guilty even if the relevant statements and call log were suppressed, we conclude that the plea in appeal No. 2 must be vacated “ ‘[i]nasmuch as the erroneous suppression ruling may have affected defendant's decision to plead guilty’ ” (People v Glanton, 72 AD3d 1536, 1538 [4th Dept 2010]). Further, the record establishes that the plea agreement was contingent upon defendant's plea of guilty to one count of the indictment at issue in appeal No. 2 and to the one count of the indictment at issue in appeal No. 1. Thus, the plea in appeal No. 1 must be vacated as well (see id.).

Entered: October 2, 2026

Ann Dillon Flynn

Clerk of the Court