Summary of the Court’s Decision1) The defendant’s motion to preclude an unnoticed statement to Sergeant Battaglia is GRANTED.2) The defendant’s motion to preclude an unnoticed statement to Officer Bhardwaj is DENIED.3) The defendant’s motion to suppress post-seizure observations, including statements and identifications, is GRANTED.4) The defendant’s motion to suppress the three out-of-court identifications is DENIED AS MOOT.Decision and Order A Dunaway/Huntley/Wade hearing was held before this Court on January 25th, 2019. Police Officer Rahuel Bhardwaj and Sergeant Christopher Battaglia testified for the People. The defense presented no witness testimony or other evidence.Findings of FactsThis Court credits the testimonies of Sergeant Battaglia and Officer Bhardwaj and makes the following findings of fact.On April 22nd, 2017 at approximately 2:00 am, Police Officer Rahuel Bhardwaj and his partners Officer Vassic and Sargent Battaglia received a radio run of a “physical fight or crime in progress.” Approximately five minutes later, they arrived at 73RD Street between 31ST and 32ND Avenue, in Queens County. Officer Bhardwaj observed a green taxi parked in the middle of the street, with a man lying on ground, back against the floor, bleeding from his left ear lobe, by the vehicle’s closed rear passenger door. At about the same time, two individuals, standing nearby at a bus stop, Lucia Aguais and Conrado Torres Teran yelled out that the guy who was involved in the altercation ran toward the southeast corner of the intersection and pointed in that direction. Sergeant Battaglia observed the man on the ground, heard the witnesses’ statement, observed them pointing, and he and Officer Vassic ran southeast, as directed. Officer Bhardwaj stayed at the scene and approached the man lying on the street, later identified as Mohammed Rahman and tried to help him, and find out what happened, but he was non-verbal, “struggling to put words together”. EMS arrived at the scene, put Mr. Rahman in a stretcher and started treating him in the ambulance.“Approximately three houses in on 31stst Avenue,” a female standing on the sidewalk, told the Sergeant and Officer Vassic that her husband “ran upstairs in a frenzy.” At that point, according to Sergeant Battaglia, he informed her that her husband may have been involved in an altercation, and that he wanted to talk to him. She agreed, lead the officers upstairs, opened the door and allowed the officers into her apartment. As the officers entered, the defendant came out of a bedroom or bathroom, and stated “yes, I was involved with the altercation outside.” Thereafter, defendant was handcuffed and taken to a patrol car.When Mr. Gonzalez was returned to the scene, to be placed in the patrol car, the witnesses, standing together, and behind the Officer Bhardwaj, pointed in the direction of the defendant and said, “oh that’s the guy”. Their statements caused Officer Bhardwaj to look up and observe his partners escorting the defendant handcuffed and “in custody”. Shortly thereafter, Officer Bhardwaj observed Mr. Rahman point in the direction of the defendant, without saying anything.At some point, Officer Battaglia was told by the two witnesses, “they got into a fight,” that Conrado Torres Teran called 911 and when Lucia Aguais “turned around,” she saw the victim on the floor and the defendant run away. They also stated that prior to that, they had heard yelling, saw the defendant getting very agitated, the victim and defendant were “scuffling,” and the defendant was on top of the victim.Defendant was transported to the 115TH Precinct, where at approximately 3:50A.M., while being fingerprinted, he told Officer Bhardwaj “I know I did this, and I deserve to do what I already did.”Conclusions of LawPreclusion of the Defendant’s Statement to Sergeant BattagliaThe People served notice pursuant to C.P.L. §710.30(1)(a) indicating that on April 22nd, 2017, at 3:15A.M., at the 115TH Precinct, the defendant told Police Officer Rahuel Bhardwaj “we were arguing because he wanted a tip. I did hit him. I should be punished.” To date, no other notice pursuant to C.P.L. §710.30(1)(a) was ever served.At the hearing, there was no testimony of the noticed statement. Instead, Sergeant Battaglia testified that the defendant said “yes, I was involved with the altercation outside,” spontaneously to the officers, after they entered his home. Officer Bhardwaj testified that while defendant was being fingerprinted at the police precinct, he said “I know I did this, and I deserve to do what I already did.”The defendant asked this Court to preclude both unnoticed statements. The People admit that the statement to Sergeant Battaglia was unnoticed and first mentioned during Sergeant Battaglia’s testimony at the hearing, but argue that no notice was required because the statement was made voluntarily in the defendant’s home, prior to being taken into custody. In the alternative, they contend, that the defendant may have been making the statement to his wife, not the officers. However, given the Sergeant’s testimony — that that defendant’s wife was downstairs, escorted the officers upstairs, the defendant walked into the room, saw two officers standing there and spontaneously admitted to being the person involved in an incident one block away — there is no reasonable basis to conclude that the statement was made to anyone besides the officers.While the Court agrees that the defendant was not in custody at the time, and his statement was voluntary, custody and interrogation are considerations for suppression, not notice. C.P.L. §710.30(1)(a) requires the People to serve notice of any statement intended to be offered at trial made by a defendant to a public servant within fifteen days of arraignment. See People v. Chase, 85 N.Y.2d 493, 500 (1995); People v. Barnette, 150 A.D.3d 1134, 1136 (2d Dept. 2017)(court “agreed with the defendant that the Supreme Court should have precluded the People from introducing into evidence statements he made to a detective on the ground that the People failed to provide notice of those statements in accordance with C.P.L. §710.30″). Furthermore, the “defendant was entitled to notice under C.P.L. §710.30(1)(a)” when the statement “was made to a law enforcement official” because “the defendant ha[s] the right to have a court review the circumstances under which the statement was given and to determine its voluntariness, including whether it was truly spontaneous or the functional equivalent of interrogation.” People v. Chase, 85 N.Y.2d 493, 500 (1995).Accordingly, People having conceded that they did not service notice and the Court having found that the statement was made to law enforcement, the defendant’s motion to preclude his statement, “yes, I was involved with the altercation outside,” to Sergeant Battaglia in his home, is GRANTED.Preclusion of the Defendant’s Statement to Officer BhardwajThe defendant also seeks preclusion of the statement “I know I did this, and I deserve to do what I already did,” arguing it was likewise unnoticed. He further asserts that the noticed statement — namely, “We were arguing because he wanted a tip. I did hit him. I should be punished” — is not in sum and substance “I know I did this, and I deserve to do what I already did,” the statement elicited at the hearing.The court disagrees. Notice must specify the time and place the statement was made, the sum and substance of the statement, and the Prosecutor’s intention to use it at trial. C.P.L. §710.30(1)(A); People v. Lopez, 84 N.Y.2d 425 (1994); People v. Rodney, 85 N.Y.2d 289, 291 (1995). At the defendant’s arraignment, the People served notice that at 3:15 A.M., on April 22ND, 2017, inside of the 115TH precinct, defendant told Officer Bhardwaj that “I know I did this, and I deserve to do what I already did.” The Court finds that the statements adduced at the hearing are substantially similar to the noticed statements and occurred at the same time, date and location, as provided on the notice. The statement “I did hit him” is similar to “I know I did this.” Likewise, the statement, “I deserve to do what I already did” is similar to “I should be punished.”Moreover, the defendant waived preclusion by failing to object to the testimony regarding the statements and by cross examining the officer about the statements. See People v. Griffin, 12 A.D.3d 458 (2d Dept. 2004); People v. Garcia, 290 A.D.2d 299 (1st Dept. 2002); People v. Morris, 248 A,D,2d 169 (1st Dept. 1998). Defendant’s motion to preclude the defendant’s statement, “I know I did this, and I deserve to do what I already did,” is therefore DENIED.Suppression of Post-Seizure Observations and Statement to Officer Bhardwaj“Though a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People have the burden” of showing the legality of the police conduct in the first instance.” People v. Berrios, 28 N.Y.2d 361, 367 (1971).In determining whether there was probable cause for an arrest, “it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice.” People v. Carrasquillo, 54 N.Y.2d 248. 254 (1981); see also People v. DeBour, 40 N.Y.2d 210, 215-216 (1976)(the court noted that “[t]he police may not justify a stop by a subsequently acquired suspicion resulting from the stop”). If an arrest was not supported by probable cause, the resulting evidence (e.g. statements, identifications, observations) must be suppressed. See People v. Delvillartron, 120 A.D.3d 1429, 1433 (2d Dept. 2014). In Delvillartron, the testimony at the hearing established that when the police officers arrived at the scene, the defendant “was sitting in the driver’s seat of a lawfully parked car with the engine off and the keys not in the ignition, a full avenue away from, and not within sight of, the complainant’s house.” Id. at 1432. The court further highlighted that the defendant “did not resist the police in any way and there was no evidence that he attempted or intended to evade them.” Id. The court ruled that the defendant’s behavior was innocuous and that the inculpatory statement he made at the precinct after the arrest should have been suppressed because the officers lacked probable cause to arrest the defendant. Id. at 1432-1433.Here, the officers testified that they responded within minutes of receiving a radio run for an altercation or crime in progress and observed a man on the ground, uncommunicative. One officer approached the man. Around the same time, two unknown individuals yelled out and pointed in the southeast direction, indicating that was where the male who was involved in the altercation had run. The officers took off running in the direction indicated, encountered an unknown woman less than a block away, who told them that her husband had run upstairs “in a frenzy.” They followed her into the apartment with her consent, and after they entered, the defendant stated, “yes, I was involved with the altercation outside.” Defendant cooperated with the officers, was handcuffed, removed from his home and taken to the patrol car. At some point, while in handcuffs and surrounded by two officers, the two witnesses indicated “oh that’s the guy” to another officer and the man who had been on the floor, pointed in defendant’s direction, without saying anything.It is clear that the officers responded to a chaotic scene. While one officer stayed at the scene, approached the victim and attempted to get more information, the other officers took off in pursuit of the unknown and undescribed possible assailant. They had not spoken to any witness, did not know what occurred, or if the man on the street was injured or how the injury had occurred. The only information that they had was that a man ran in a certain direction, another man was on the ground and a possible altercation occurred at or near the location.The bare bones information gave the officers a basis to continue to investigate, pursue and maybe even temporarily detain any suspect that fit the description of “a male running” in the direction indicated, at a time in the morning that did not have many pedestrians about. Thereafter, when the officers met and spoke to the defendant’s wife less than a block away, heard that her husband, a male, had run into the apartment “in a frenzy” combined with defendant’s subsequent statement “yes, I was involved with the altercation outside,” the officers had a reasonable suspicion to believe that the defendant could be the man that had run from the incident one block away. Without any further information either directly from witnesses or any fellow officer, they handcuffed defendant and removed him from his home. This constituted at the very least a seizure and forcible detention. See People v. Vaughan, 187 A.D.2d 685 (2d Dept. 1992)(an individual is seized when the police grabs his arm and conducts a pat-down frisk). A forcible detention is permissible where a police officer entertains a reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime or whether the officer reasonably suspects that they are in danger of physical injury. DeBour, 40 N.Y.2d at 223; People v. Loper, 115 A.D.3d 875 (2d Dept. 2014).While the People have argued that Sergeant Battaglia handcuffed the defendant for “purposes of detainment” presumably either for safety or to conduct an identification procedure, there is no testimony, other than arrest, why defendant was placed in handcuffs. Neither officer cited safety concerns or an identification procedure, as the reason why defendant was handcuffed or taken back to the scene. There was no testimony, by either officer, of any communication between the officers arranging for an identification procedure or confirming a positive identification. Significantly, there was no testimony that Sergeant Battaglia or Officer Vassic observed the point-outs by the eyewitnesses or the complainant or heard the eyewitnesses say, “that’s the guy.” Even if this Court were to conclude that Officer Bhardwaj had the requisite probable cause necessary to support the defendant’s arrest, he never communicated any of that information to his fellow officers prior to the defendant being handcuffed, at, during or after the point-outs or at any time prior to the defendant being placed in the backseat of the patrol car.Accordingly, the People failed to meet their burden of establishing the police officers had the requisite probable cause to arrest the defendant. The defendant’s motion to dismiss the subsequent police observations of him and any statements that he made thereafter, is therefore GRANTED.Suppression of Showup IdentificationsGiven the Court’s ruling that the officers lacked probable cause to arrest the defendant, any subsequent police observations and identifications made after the arrest must also be suppressed. Therefore, the defendant’s motion to suppress the identifications on suggestive grounds is DENIED AS MOOT.This constitutes the decision and order of this Court.Dated: February 27, 2019Kew Gardens, New York
