The defendant is charged with one (1) count of Criminal Mischief in the Fourth Degree in violation of Penal Law §145.00(4); one (1) count of Assault in the Third Degree in violation of Penal Law 120.00(2); one (1) count of Attempted Criminal Mischief in the Fourth Degree in violation of Penal Law §110/145.00(1); one (1) count of Resisting Arrest in violation of Penal Law §205.30; one (1) count of Obstructing Governmental Administration in the Second Degree in violation of Penal Law §195.05; and one (1) count of Harassment in the Second Degree in violation of Penal Law §240.26(1). A Wade/Huntley/Dunaway hearing was granted. At the suppression hearing on June 4, 2018, the People called as its sole witness Police Officer Michael Paulson of the Mount Vernon Police Department, who testified that on October 16, 2017, at approximately 3:15 p.m., he along with his partner were dispatched to 232 South Fulton Avenue, regarding a disturbance at that location. Upon arriving at the subject location which was a grocery store, P.O. Paulson testified that he was met outside of the store by the owner, who pointed out two individuals who were also standing outside the store, as the individuals that just had an altercation inside the store, and damaged property therein. Officer Paulson noticed one of the individuals that was pointed out, was bleeding from his nose and forehead. That individual who was later identified as Anreid Gadsden, informed the officer that the defendant, Robert Johnson who he knew as Swizz, attacked him inside the store. While speaking with Mr. Gadsden, Officer Paulson testified that the defendant, who was standing nearby, was overheard yelling to the victim, not to say anything to the police. Mr. Gadson did not want to give a further statement at the scene, so he was transported to Mount Vernon Police Headquarters where he signed a witness deposition.Officer Paulson further testified that since he was familiar with the defendant, and aware of his history of violence, he immediately handcuffed him for safety reasons. After deciding to arrest the defendant, Officer Paulson observed the defendant resisting being placed in a patrol car by his fellow officers. While transporting the defendant to the Mount Vernon Police Headquarters, Officer Paulson testified that the defendant was kicking the partition between the back seat and the front seat. The defendant allegedly stated to the officers “You better shoot me before I shoot you. Wait till I get out. You don’t know who I am.”The Court of Appeals has established a graduated four-level test for evaluating the reasonableness and constitutionality of police-citizen encounters. People v. Moore, 6 NY3d 496, 498-499, (2006); People v. Hollman, 79 NY2d 181, 184-185, (1992). The first level, permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality. People v. Moore, 6 NY3d at 498; People v. De Bour, 40 NY2d 210, 223 (1976). The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion short of a forcible seizure. Moore, at 498-499. The level two common-law right to inquire permits law enforcement to inquire whether the suspect is engaged in criminal activity. “Once the police officer’s questions become extended and accusatory and the officer’s inquiry focuses on the possible criminality of the person approached, this is not a simple request for information. Where the person approached from the content of the officer’s questions might reasonably believe that he or she is suspected of some wrongdoing, the officer is no longer merely asking for information. The encounter has become a common-law inquiry that must be supported by founded suspicion that criminality is afoot.” Hollman, at 191.A level two common-law inquiry however, does not authorize a more “intrusive step,” which would amount to even a brief detention of the individual. People v. Johnson, 54 NY2d 958, 960 (1981). Citizens have the right to be left alone and where the police possess only the level two common-law right of inquiry, the citizen likewise has the right to ignore the officer and walk away. Moore, at 500. The third level permits a police officer to forcibly stop and temporarily detain an individual, based upon a reasonable suspicion that the individual is committing, has committed, or is about to commit a crime. Moore, at 498-499,; De Bour, at 223. The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime. De Bour, at 223; Moore, at 499.The level three temporary detention of an individual is also codified by statute. Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing, or is about to commit a felony or misdemeanor, the Criminal Procedure Law authorizes a forcible stop and detention of that person. C.P.L. §140.50(1); see Terry v. Ohio, 392 U.S. 1 (1968). The Court of Appeals has unambiguously stated that a level three detention is limited to crimes, i.e., only felonies and misdemeanors: “[L]evel three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor.” Moore, at 498-499. In In re Victor M., 9 NY3d 84 (2007), the Court of Appeals once again explained that “[t]emporary detentions are authorized by statute only for felonies and misdemeanors, not violations (C.P.L. §140.50[1])”. Id., at 88. Level three detentions simply do not apply to violations. Furthermore, even if a level three detention is permitted, this type of temporary detention justifies only a frisk, not a full-fledged search. De Bour, at 223.Here, the police action initially constituted a level three stop and detention when Officer Paulson handcuffed the defendant after being informed by the victim that the defendant was his attacker. “Unlike a paid or anonymous informant, an eyewitness victim of a crime can provide probable cause for the arrest of [the perpetrator] despite the fact that his reliability has not been previously established or his information corroborated.” People v. Crespo, 70 AD2d 661, 661 (2d Dept. 1979); see also, People v. Ross, 244 AD2d 513 (2d Dept. 1997); People v. Pascual, 173 AD2d 746 (2d Dept. 1991). Absent materially impeaching circumstances, probable cause is established when a victim of a crime provides information to the police “affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator.” People v. Gonzalez, 138 AD2d 622, 623 (2d Dept. 1988). Under all the facts and circumstances of this case, this Court finds that the arresting officer had probable cause to believe that defendant had committed a crime, and thus, to arrest defendant (see People v. De Bour, 40 NY2d 210 [1976]; People v. McCrary, 71 AD3d 1049 [2010]; People v. Stevens, 43 AD3d 1088).Defendant’s contention that his oral statements made to police while being transported to the police headquarters should be suppressed, is without merit. A defendant’s oral or written statements are inadmissible at trial if they were made involuntarily. (CPL 60.45 [1].) A statement is involuntary if obtained either “[b]y any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant’s physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement” or “[b]y a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him…in violation of such rights as the defendant may derive from the constitution of this state or of the United States.” (CPL 60.45 [2] [a], [b] [ii].)The evidence at the suppression hearing established that defendant’s statements made to the officer in his patrol car and prior to having received Miranda warnings (Miranda v. Arizona, 384 US 436 [1996]) was “spontaneous and not triggered by police questioning or other conduct which reasonably could have been expected to elicit a declaration from [defendant]” (People v. Williams, 97 AD3d 769, 770 [2012].As to the Wade portion of the hearing, defendant’s contention that the identification of him, made by the store owner to Officer Paulson should be suppressed, is also without merit. “[T]he purpose of the Wade hearing is to test identification testimony for taint arising from official suggestion during police-arranged confrontations between a defendant and an eyewitness.’” People v. Dixon, 85 NY2d 218, 222 (1995) quoting People v. Gissendanner, 48 NY2d 543, 552 (1979). ” [U]nduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused” (People v. Chipp, 75 NY2d 327, 335).The testimony elicited from Officer Paulson indicated that when he arrived at the subject location he was met outside the premises by the owner of the establishment, who immediately pointed to the individuals that were involved. Since this was not a police-arranged identification procedure, the identification of the defendant shall not be suppressed. Accordingly, defendant’s motion is denied in its entirety.This constitutes the Decision and Order of this Court.Dated: June 6, 2018Mount Vernon, New York
