DECISION AND ORDER The defendant is charged with Rape in the First Degree, in violation of Penal Law (PL) section 130.35(1), and other related charges. The defense moves to suppress statements as fruits of an unlawful seizure. This court conducted a combined Huntley/Dunaway hearing on June 3, 2019. Police Officers Jose Gomez and Ryan Sebastopoli testified on behalf of the People. The defendant did not present any witnesses. After the testimony was concluded, the court heard oral arguments from both sides.I make the following findings of fact and conclusions of law:FINDINGS OF FACTOfficer Gomez has been with the New York City Police Department (NYPD) for approximately one and a half years (Hearing Transcript [Tr] at 6). Officer Gomez testified credibly that on August 15, 2018, he was working in uniform together with a partner, Sergeant Lazo (Tr at 7). At approximately 4:45 AM, Officer Gomez received a radio run and 911 call of a sexual assault in progress at 201 Linden Boulevard in Kings County (Tr at 7). Officer Gomez’s body camera footage capturing the events was admitted into evidence as People’s #1. Officer Gomez responded to the location and he, together with several other officers, knocked on the apartment door (Tr at 7-8). A male, later identified as the defendant, opened the door, and a female, later identified as N.S., was inside the apartment (Tr at 8). The defendant was asked whether he lived at the location and if there was anyone else inside the apartment, to which the defendant responded that he and Ms. S. were the only two inside (Tr at 9). The defendant was then brought out into the hallway and asked to place his hands against the wall (Tr at 10). While in the hallway, the defendant was asked who else was in the house and whether he had any weapons on him (see Peo #1). The defendant responded that he didn’t understand what was going on and was advised that the police were investigating a serious crime. He was then asked by Inspector Lewis for his name and again asked if he lived at the location and with whom (see Peo #1). The defendant provided his name and stated that he did not live at the location but that he was invited over by Ms. S., that they did things and she got upset (see id.). The police then advised the defendant that that’s why they were there and that he was the subject of the criminal investigation, that he might’ve done nothing but until the police determined that he hadn’t, he had to comply with police orders. Inspector Lewis then asked, “Alright so she invited you over you told me?” and after the defendant responded, he asked additional questions pertaining to the defendant’s relationship with Ms. S. (Peo #1). The defendant stated that he didn’t want to get into any trouble and was advised by Inspector Lewis that they had to straighten everything out, that she called and the defendant was the person they were here to investigate. The Inspector then said “but you figured that already, right” and the defendant responded that he figured that. The Inspector then followed up with, “why would she be making up stories about you” and the defendant responded that they had sex, that she got upset afterward and went into the other room, and then the police came (Tr at 10; Peo #1).Based on the information provided by the complainant to other officers on the scene, the defendant was placed under arrest (Tr at 16). While the defendant was in handcuffs, Inspector Lewis, after stating that he was not going to ask a lot of questions and that he was not going to interrogate the defendant, told the defendant that he had said “something that made [the Inspector] believe [him] as opposed to her” (see Peo #1). The Inspector then asked whether the complainant had called the defendant and the defendant responded, “No, I knocked, well we were at a party earlier and then I came over and was invited inside” (see id.). Officer Gomez then stayed with the defendant in the hallway and did not enter the apartment until after the defendant was placed under arrest (Tr at 14). Officer Gomez did not speak to any witnesses or police officers prior to the defendant being handcuffed (Tr at 15).Officer Sebastopoli has been with the NYPD for five years (Tr at 18). Officer Sebastopoli testified credibly that on August 15, 2018, he was working in uniform together with a partner, Officer Torre (Tr at 19). At approximately 4:45 AM, Officer Sebastopoli received a 911 call of a sexual assault at 201 Linden Boulevard (Tr at 19). Officer Sebastopoli’s body camera footage capturing the events was admitted into evidence as People’s #2. When he arrived at the location, he knocked on the door and the defendant answered (Tr at 20). He also observed Ms. S. inside the bedroom (Tr at 20). The defendant was asked if he lived at the location and he stated that he did not (Tr at 21). No threats or promises were made to the defendant and none of the officers’ guns were drawn (Tr at 22). Officer Sebastopoli, accompanied by other officers, went inside to speak with Ms. S. (Tr at 22; see Peo #2). After entering the apartment, Officer Sebastopoli did not have any further contact with the defendant until he returned to the 67th Precinct at approximately 2:45 PM (Tr at 34-35).Officer Sebastopoli asked Ms. S. what happened, and she stated that the defendant had raped her (Tr at 21, 22, 24). Officer Sebastopoli did not convey this information to any of the other officers on scene, and although his sergeant was also present during the interview of the complainant, he does not know if the sergeant conveyed the information to anyone else (Tr at 36-37). The defendant was then placed under arrest and taken to 67th Precinct and placed in a holding cell (Tr at 30). Officer Sebastopoli described the defendant’s physical appearance as “content” (Tr at 30).The defendant was then transported to the Special Victims Unit (SVU) to be interviewed (Tr at 24-25, 30). Officer Sebastopoli was present for the interview (Tr at 25). A videotape of the interview was admitted into evidence as People’s #3. The defendant was not handcuffed during the interview (see Peo #3). At the beginning of the interview, Detective Weber read the defendant his Miranda warnings. After each Miranda warning the defendant was asked whether he understood and the defendant verbally responded that he did. The defendant then proceeded to speak with the detective. No threats or promises were made to the defendant in exchange for his statement (Tr at 29-30). During the interview, the defendant was asked more than once if he wanted anything to eat or drink and the defendant stated that he did not want anything (Tr at 31; Peo #3).CONCLUSIONS OF LAWThe Dunaway PortionAt a suppression hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v. Hernandez, 40 AD3d 777, 778 [2nd Dept 2007]; People v. Moses, 32 AD3d 866, 868 [2nd Dept 2006]; see also People v. Wise, 46 NY2d 321, 329 [1978]; People v. Whitehurst, 25 NY2d 389, 391 [1969]). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v. De Bour, 40 NY2d 210, 215 [1976]). If the People satisfy their initial burden, the defendant “bears the ultimate burden of proving that the evidence should not be used against him” (People v. Berrios, 28 NY2d 361, 367 [1971]).Here, upon responding to the location for a sexual assault in progress, Officer Sebastopoli spoke to N.S., the complainant, who informed him that the defendant raped her. It is well-settled that the statement of an identified citizen complainant is sufficient to establish probable cause for an arrest (People v. Read, 74 AD3d 1245, 1246 [2nd Dept 2010]; People v. Boykin, 187 AD2d 661, 662 [2nd Dept 1992]). However, it is unclear if any officer relayed the information provided by Ms. S. to the remaining officers on scene prior to handcuffing the defendant. The fellow officer rule provides that “even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer ‘acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest’” (People v. Ramirez-Portoreal, 88 NY2d 99, 113 [1996], citing People v. Horowitz, 21 NY2d 55, 60 [1967]). In determining whether the police communicated the information to a fellow officer, although direct evidence is best, a suppression court is not precluded from drawing an inference from circumstantial evidence that the information was conveyed to other officers (Ramirez-Portoreal, 88 NY2d at 114). Here, the information available to Officer Sebastopoli established sufficient probable cause for the defendant’s arrest. During the interview of Ms. S., at least two other officers were present (see Peo #2). At approximately 4:54:25 AM, the sergeant is seen leaving the bedroom where Ms. S. was being interviewed (see id.). At approximately 4:54:35 AM, an officer can be heard saying something to Officer Gomez and the other officers in the hallway with the defendant (see Peo #1). After that communication, the defendant was placed in handcuffs. The only logical inference that can be drawn is that Officer Gomez and his fellow officers were acting upon the direction of another officer and “acting upon the knowledge” shared by Officer Sebastopoli (see id.). Because the police “as a whole were in possession of information sufficient to establish probable cause for the defendant’s arrest,” the arrest was lawful (People v. McCloud, 583 NYS2d 15, 17 [2nd Dept 1992]). Accordingly, the defendant’s motion to suppress evidence, namely his statements made on scene and his videotaped statement, as fruits of an unlawful arrest is denied.The Huntley PortionThe People have the burden of proving beyond a reasonable doubt that the statements made by the defendant were voluntary. It is manifest that a defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v. Arizona, 384 US 436 [1966]). “Both the elements of police custody and police interrogation must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda” (People v. Huffman, 41 NY2d 29, 33 [1976]).Turning to the statements made at the time the defendant opened the door, it is clear that these statements were not the product of custodial interrogation. Although these statements were made in response to questions posed by the police, the questions were investigatory in nature and not intended to elicit an incriminating response (see People v. Ferro, 63 NY2d 316, 322 [1984]). Furthermore, the defendant was not in custody at the time these statements were made. The defendant was still inside the apartment and his freedom was not deprived in any way. Accordingly, the motion to suppress these statements is denied.Turning to the statements made after the defendant was asked to step into the hallway,1 the People concede that the defendant was in custody at the time. While the defendant was not formally arrested or handcuffed at this point, he was, without question, in custody. “Custody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived” (see People v. Rodney P., 21 NY2d 1, 9 [1967] [internal citations omitted]). Here, the defendant was told to face and keep his hands against the wall. Any time the defendant’s hands came off the wall or were not high enough, the officers put the defendant’s hands back onto the wall. There were points where an officer is holding the defendant’s hand against the wall for several seconds and Officer Gomez had his hand on the defendant’s back to ensure he continued to face the wall. Clearly, at this point, the defendant was not free to leave and was in police custody.The question remaining is whether the defendant was subjected to interrogation such that Miranda rights were required. It is well-established that “[c]ustodial admissions are not suppressible unless produced by a process of interrogation designed to elicit statements from the defendant” (Huffman, 41 NY2d at 33).In this case, the police were responding to a report of a sexual assault in progress, as such “immediate clarification was necessary before taking drastic action” (Huffman, 41 NY2d at 34). When the officers arrived, the only two individuals present in the apartment were the defendant and the complainant. Officer Sebastopoli and other officers entered the apartment to speak with the complainant, while Officer Gomez, Inspector Lewis, and additional officers stayed with the defendant in the hallway (see Peo #1). After the defendant was directed to step out into the hallway, Inspector Lewis asked the defendant for his name and address, and whether he lived at the location and with whom. These questions were clearly investigatory questions designed to clarify the nature of the situation that the officers were being confronted with.However, once Inspector Lewis advised the defendant that he was the subject of the criminal investigation, the questioning should have ceased or Miranda rights should have been administered (cf. Rodney P., 21 NY2d at 10 [where there was no evidence that "defendant knew or was advised that his accomplice was already in custody or had implicated him," Miranda was not required before officers questioned the defendant as a person of interest]; People v. Brown, 23 AD3d 1090,1092 [4th Dept 2005] [once defendant made spontaneous statements and became a suspect, no further questioning of defendant took place until he received his Miranda warnings]). Instead, after advising the defendant that he was the subject of the investigation, the Inspector asked the defendant “Alright so she invited you over you told me?” He also asked several questions relating to the nature of the defendant’s relationship with the complainant. And, after again advising the defendant that he was the person they were investigating, the Inspector asked, “Why would she be making up stories about you?” This questioning of the defendant, after he was advised that he was a suspect, does not fall into the category of brief, investigatory questioning designed to clarify the nature of the situation confronted (cf. Huffman, 41 NY2d at 34 [single question --- "what are you doing back there?" --- propounded to defendant did not constitute interrogation]; People v. Luna, 164 AD2d 870, 871 [2nd Dept 1990] [officer's question regarding bulge in defendant's pocket was "designed to clarify the nature of the situation confronted"] [internal citation omitted]; People v. Smith, 89 AD3d 1126, 1127 [3rd Dept 2011] [incriminating statements made to officers responding to potential crime scene in a crowded apartment were "admissible as noncustodial responses to brief, investigatory questions aimed at clarifying the situation"]; People v. Cordato, 85 AD3d 1304, 1309 [3rd Dept 2011] [defendant's inculpatory statements made in response to officer asking crowd who did this to the victim were "noncustodial and were in response to the officers' initial, brief investigatory questions aimed at ascertaining what had just occurred"]; Brown, 23 AD3d at 1092 [defendant's statements in response to "questions that are investigatory in nature, not accusatory, are not the product of interrogation"] [internal citations omitted] People v. Brand, 13 AD3d 820, 822 [3rd Dept 2004] [officer's questions, asking what happened and the location of the victim and children, were investigatory questions "made to clarify the nature of the volatile and dangerous situation confronted"]).The Inspector’s questions to the defendant regarding his relationship with the complainant and why she would make up stories about him, made after the defendant was informed that he was the suspect, constituted custodial interrogation which required the administration of Miranda warnings (see People v. Rifkin, 289 AD2d 262, 263 [2d Dept 2001] ["Although the police may ask a suspect preliminary questions at a crime scene in order to find out what is transpiring, where criminal events have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation"] [internal citations omitted]; People v. Soto, 183 AD2d 926, 927 [2d Dept 1992] [same]). “‘[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response’” (Ferro, 63 NY2d at 322, citing Rhode Island v. Innis, 446 US 291, 301 [1980]). Here, the officer should have known that the questions posed to defendant-suspect, particularly one asking the defendant to explain why the complainant would make such accusations, were reasonably likely to elicit an incriminating response. For the foregoing reasons, the defendant’s motion to suppress the statements he made in the hallway is granted to the extent that any statements made by the defendant after he was first advised that he was the subject of the investigation are suppressed.Turning to the videotaped interrogation, there is no question that at the time of the statement, the defendant was in custody. It is also clear that the defendant was orally given his Miranda warnings at the start of the interview by Detective Weber. The fact that the defendant “did not execute a written waiver of his Miranda rights does not invalidate his oral waiver or otherwise render his statement involuntary” (People v. Rankin, 127 AD3d 1335, 1339 [3rd Dept 2015]). The question this court must decide is whether the defendant’s statement was made after a knowing, intelligent, and voluntary waiver of his Miranda rights.“Whether a defendant knowingly and intelligently waived his…[Miranda rights]…is determined ‘upon an inquiry into the totality of the circumstances surrounding the interrogation,’ including an evaluation of the defendant’s ‘age, experience, education, background, and intelligence’” (People v. Dunbar, 104 AD3d 198, 210 [2nd Dept 2013] citing Fare v. Michael C., 442 US 707, 725 [1979]). The Second Department has repeatedly held that an express waiver of Miranda is not required, rather the totality of the circumstances, including a defendant’s prior involvement with the law and his express indication that he understands his rights, must be considered (see People v. Harris, 115 AD2d 619, 619 [2nd Dept 1985]).The defendant here is a 19 year old college student who has had no prior contact with the criminal justice system. At the start of the interview, he was read his Miranda rights by Detective Weber and without hesitation, he acknowledged that he understood them by answering “yes” to the first five questions. In response to the final Miranda question, “Now that I have read you your rights are you willing to answer questions”, the defendant responded “well uh” and Detective Weber continued, “yes or no” and the defendant answered “yes” and then proceeded to answer questions. At no point did the defendant express difficulty in understanding his Miranda rights. Accordingly, the court finds that the defendant expressly waived his Miranda rights (see People v. Dunwoody, 89 AD2d 569, 570-1 [2nd Dept 1982] [defendant's affirmative response to final Miranda question "constituted a sufficient, expressly stated waiver of his constitutional rights…[and] must be evaluated in light of the context of the question, which called for an acknowledgment of his understanding of his constitutional rights,…and having such understanding, to willingly submit to interrogation”]; see also People v. Campbell, 81 AD2d 300, 308 [2nd Dept 1981] ["'Where a defendant in custody has been fully informed of his rights and has indicated that he understands them, his subsequent voluntary decision to speak to the police without requesting an attorney may, in all but the most unusual circumstances, be held to constitute a waiver' "] [emphasis in original]).Defendant asks the court to consider the conditions of the interrogation in determining whether the defendant’s statement was voluntarily made. The defendant was in custody approximately 10 hours when he was taken into an interrogation room to be questioned by two members of law enforcement. Without question, the aggressive tone and choice of colorful language exhibited by Detective Weber during portions of the interrogation were unnecessary and inappropriate. However, standing alone the detective’s forceful tactics do not establish that the atmosphere of the interrogation was such that the defendant’s will was overborne. That the defendant understood his constitutional rights and understood that he could refuse to speak to the police is evident from the fact that when asked to submit to a DNA swab on two occasions, the defendant refused both times.Taking into consideration the totality of the circumstances, the court finds that the People have proven beyond a reasonable doubt that the defendant’s videotaped statement was made after he knowingly, intelligently, and voluntarily waived his Miranda rights.The court will now consider whether the post-Miranda statement was tainted by the previous unwarned oral statement. “[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a ‘single continuous chain of events,’ there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” (People v. Paulman, 5 NY3d 122, 130 [2005]; quoting People v. Chapple, 38 NY2d 112, 114 [1975]). In determining whether there is a single, continuous chain of events, factors courts have considered include:the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police(Paulman, 5 NY3d at 130-31). The court’s evaluation is to “assess where there was a sufficiently ‘definite, pronounced break in the interrogation’ to dissipate the taint from the Miranda violation” (id. at 131, quoting Chapple, 38 NY2d at 115). If such a break is found, the Mirandized statement is admissible notwithstanding that there was a prior, unwarned statement (Paulman, 5 NY3d at 131).The defendant’s pre-Miranda statements were made in a span of approximately four minutes between 4:50 AM and 4:54 AM, at which point he was formally arrested and placed in handcuffs. The defendant was interviewed by Detective Weber later that day at approximately 4:05 PM. Here, there is a significant lapse of time — almost 12 hours — between the unwarned statements and the post-Miranda, videotaped statement. The unwarned statement occurred at the scene pursuant to questioning by Inspector Lewis whereas the post-Miranda statement took place at the Special Victims Unit and was conducted by and in the presence of different police personnel, namely Detective Weber and Officer Sebastopoli. Applying the Paulman factors to this case, the court finds that there was sufficient attenuation between the statements the defendant made at the scene and the videotaped statement made at the SVU such that the statements were not the product of continuous interrogation (see People v. Steed, 133 AD2d 433, 434 [2nd Dept 1987] [four hour lapse between the initial statement and the post-Miranda statement was not the product of continuous interrogation]; People v. Farquharson, 139 AD3d 467, 467 [1st Dept 2016] [defendant's videotaped statement was sufficiently attenuated from prior suppressed statements as there was a passage of many hours and other intervening events between the two statements]; People v. Padilla, 28 AD3d 236, 237 [1st Dept 2006] [defendant's written statement at the precinct was attenuated from any illegality since seven hours passed between the time of arrest and interrogation]). Accordingly, the defendant’s motion to suppress the videotaped statement on Huntley grounds is denied.CONCLUSIONAccordingly, as set forth above, the defendant’s motion is granted solely to the extent that the statements made by the defendant in the hallway after he was first advised that he was the subject of the investigation are suppressed.This constitutes the Decision and Order of the Court.Dated: June 27, 2019Brooklyn, New York
