Summary of the Court’s Decision Suppression of Physical Evidence is granted in part and denied in part: BB’s recovered from Defendant’s pocket and testimony about the BBs: MOTION GRANTED; BB guns recovered: MOTION DENIED; Suppression of Statements is granted. DECISION AND ORDER Opinion of the Court Introduction The defendant was arrested with a co-defendant on September 26, 2018, and charged with criminal possession of a weapon in the third degree (Penal Law §265.01 [2]), Possession of an Air Pistol (Administrative Code of the City of New York §10-131-b), and False Impersonation (Penal Law §190.23). At arraignment on September 26, 2018, the People served statement notice pursuant to CPL 710.30, dated September 26, 2018. The defendant made five statements: the first two were made at the scene of the arrest; and the last three were made at the police precints. In particular, the following statements are contained in this notice: Statement 1: Oral statement to Police Officer Michael Agunzo on September 26, 2018, at 2:28 a.m., at 107 Avenue and 120 Street which indicated that the orange one is mine. Statement 2: Oral statement to Police Officer Michael Agunzo on September 26, 2018, at 2:35 a.m., at 107 Avenue and 120 Street: “We got into a fight earlier, we are going to protect ourselves.” Statement 3: Oral statement to Police Officer Michael Agunzo on September 26, 2018,, at 6:50 a.m., at the 106 Precinct: “I was lying to you, I’m on probation, I’m a splash gang member, the 81st precinct is looking for me, my real name is Denroy Golding and my date of birth is April 15, 1997. Statement 4: Oral statement to Police Officer Michael Agunzo on September 26, 2018, at 9:40 a.m., at the 106 Precinct: “Yeah, that gun is mine,” when Police Officer Agunzo Pointed to the silver and dark colored imitation pistol. Statement 5: Written statement to Detective Kevin Roach on September 26, 2018, at 10:10 a.m., at the 106 Precinct: “During the day, my friend had gotten jumped by a few people in Queens and he called me. I traveled from Brooklyn to Queens to ensure that he was alright. We gathered of together and started walking toward where he had gotten jumped and he told me that he just wanted to make sure that it didn’t happen again. For the duration a few pel[l]ets were shot at glass bottles and cans while we walked we seen the police officer coming down the wrong way.” On October 5, 2018, ordered a suppression hearing. After a series of adjournments, a Mapp, Huntley, and Dunaway hearing was held before this Court on May 28, 2019 and July 31, 2019. Police Officer Michael Agunzo and Detective Patrick Roach testified. From the credible evidence, this court makes the following findings of fact and conclusions of law. Findings of Fact In the early morning of September 26, 2018, Police Officers Agunzo and Christopher Diorio, responded to two separate anonymous radio dispatches of shots fired in the vicinity of 107th Avenue and 120th Street, Jamaica, County of Queens. The description was two male blacks; one who was wearing a yellow sweatshirt. The radio dispatch indicated that the subjects were heading southbound toward Liberty Avenue across Northern Boulevard. Shortly thereafter, the officers arrived at 103th Avenue and 120th Street (about 100 meters from Liberty Avenue) and observed three individuals, including a female. The two males — the defendant and the co-defendant — fit the description in the radio dispatch. As the officers approached, they observed the subjects put “something” under a nearby bush and continue to walk down the street. The arresting officer exited his marked patrol vehicle, stopped the individuals and asked for their names, where they were going and what they put under the bush. The defendant stated his name was Randle McCain. The officer testified that at that time there were about six or seven other officers at this scene. The officer asked the men if they minded if he pat them down. They agreed to a pat-down, and upon doing so, the officer felt what he assumed were small metal BB pellets in the defendant’s right front pants pocket. The officer then requested that the defendant remove the items from his pocket. The officer recovered what he then knew were BB metal pellets for an air pistol. However, the BB metal pellets were never vouchered. Officer Agunzo asked his partner to go check by the bush where he had seen the subject put the unknown items. The bush was described as a two-foot-by-two-foot leafy bush with the leafy part starting about one foot off the ground. Two BB guns were seen: part of the gun was on the sidewalk and some under the bush. They recovered two BB guns: one silver and one black. The defendant and the co-defendant were placed under arrest and handcuffed. Without Miranda warnings being administered, the officer asked who the guns belonged to. The defendant responded that the silver gun was his, and the co-defendant stated that the black one belonged to him. Thereafter, the defendant and co-defendant were taken back to the precinct where pedigree information was obtained, and the arrest processed. The defendant stated his name was Randle McCall. The desk sergeant ran that name and found that he had not been arrested before and had no summonses. The officer was going through the process to issue an appearance ticket by filling out a Desk Appearance Investigation Report. The officer also prepared a property invoice for the two BB guns. However, the BB pellets were not vouchered. During the fingerprinting process, the arresting officer indicated that it appeared that the defendant was “too familiar” with the procedures: it looked like the defendant had done this before. While fingerprinting the defendant, the defendant seemed to be doing it on his own: “He was doing it for me pretty much. Which fingers go where first. Four and turn on the palm. He did all that without me saying a word to him. “I said there is no way you would know right four goes first and palm second and then third, so we had a good relationship. I was talking to him for the last few hours. I said come on man, when this comes back from Albany we are going to know everybody” (t at 56). In response, the defendant disclosed his true name, identity and pedigree information. He also disclosed that he was on probation. He further stated that he was sorry for not giving the officer his real name and information. At 9:40 a.m. at the precinct when Police Officer Agunzo pointed to the silver and dark colored imitation pistol: “Yeah that gun is mine.”1 Later in the morning, around 9:50 a.m., Detective Roach was asked to debrief the defendant. “All the officers come up, everyone who gets arrested has to be debriefed by the detective squad. So when you come in and as soon as you walk in the door I’m the first desk in there” (t at 21). Because it was a gun case, they debrief the defendant. When the officer brought him two pieces of paper, the detective asked the officer if he arrested the defendant twice. The officer stated that the defendant gave him one name and later they found out it was fake. The officer then asked to tell the detective “a little about what the arrest was about.” Officer Agunzo told the detective what he saw on the scene and told him that the defendant made some statements at the scene and on the way to the precinct: “He [Officer Agunzo] just came up handed me the paper, told me her needed a debriefing. So I was like, what do you have? He briefly went over what he had and he brought him upstairs. As far as what was stated to him prior to that no I mean just basic what was going on at the scene and how he came to arrest the defendant” (t at 24). The detective ran a history to see to see what the defendant had been previously arrested for “so I have an idea on who I am speaking with.” The detective administered Miranda warnings to the defendant. The first question the detective asked was, “obviously you were arrested last night. I’m told you were arrested with a gun[,] what happened?” The defendant then told the detective that they had a BB gun and they were shooting bottle and cans. The detective gave the defendant pen and paper and asked if he wanted to put that in writing. The defendant said sure. The detective then left the room. When he returned 15 to 20 minutes later (the statement was finished at 10:10), he saw what the defendant wrote and said, “this is all you want to write? You want to write anything else?” The defendant did not. Conclusions of Law At the conclusion of the hearing, both parties were given the opportunity to submit post-hearing memoranda of law. They both submitted the memoranda on August 7, 2019. At issue is whether the two BB guns and certain statements are admissible. The People in their response have conceded suppression of the following statements: (1) the first statement made after the seizure of the BB guns as to who the guns belonged to; (2) the second statement: “We got into a fight earlier, we are going to protect ourselves.” (3) the fourth statement made at the precinct: “Yeah, that gun is mine,” when Police Officer Agunzo Pointed to the silver and dark colored imitation pistol. However, the People oppose suppression of the following statements: (1) the third statement disclosing his true name, identity and pedigree information, that he was further on probation and that he was sorry for not giving the officer his real name and information; and (2) fifth oral and written statement made to the detective at the precinct. Initial Approach to the Defendant The arresting officer’s response to the location and approach of the defendants was a classic De Bour/Hollman street encounter scenario (People v. De Bour, 40 NY2d 210 [1976]; People v. Hollman, 79 NY2d 181 [1992]). The arresting officer indicated that pursuant to two separate radio dispatches of shots fired by two male blacks — one wearing a yellow sweatshirt — he responded to a specific location, and observed the defendants, fitting the description, at the general location, walking away from the approaching officers and then put “something” under a bush. Over forty years ago, the Court of Appeals in People v. De Bour (40 NY2d 210 [1976]), established a four-level test for evaluating police-initiated street encounters: Level One — the request for information — allows a police officer to request information from an individual (De Bour, at 223). All that is required is that the request “be supported by an objective, credible reason, not necessarily indicative of criminality” (id.). The Court described this objective credible reason as setting “a low bar for an initial encounter”(People v. Barksdale, 26 NY3d 139, 143 [2015]); Level Two — the common-law right of inquiry — permits a somewhat greater intrusion, though short of a forcible seizure (De Bour, at 223). It requires a “founded suspicion that criminal activity is afoot” (id.); Level Three — stop and detain — permits the police officers to stop or detain an individual if they have information which “provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed” (People v. Martinez, 80 NY2d 444, 447 [1992]; De Bour, at 223; see People v. Hollman, 79 NY2d 181, 184-185 [1992]; People v. Bowers, 148 AD3d 1042, 1043 [2d Dept 2017], lv denied 29 NY3d 1076 [2017]). Level Four — arrest — authorizes the police officer to seize and arrest an individual (De Bour, at 223). This requires probable cause to believe that the person has committed a criminal offense (id.; Hollman, 79 NY2d at 184-185). “An anonymous tip cannot provide reasonable suspicion to justify seizure, except where that tip contains predictive information — such as information suggestive of criminal behavior — so that the police can test the reliability of the tip” (People v. Moore, 6 NY3d 496, 499 [2006]). “An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person” (Florida v. J.L., 529 US 266, 272 [2000]). An anonymous tip furnishing a general description and location of a “man with a gun” will justify a belief that criminal activity is afoot — i.e. level-two — it does not, by itself, constitute reasonable suspicion to stop — i.e. level-three — anyone who happens to fit that description (id.). Such a predicate triggers only the police officer’s common-law right to detain to the extent necessary to obtain explanatory information. (id., at 223). Where the informant is identified, “a police officer has reasonable suspicion to stop and detain an individual where the individual matches the description of a perpetrator’s appearance and is located close to the crime scene, both temporally and geographically” (People v. James, 166 AD3d 1011 [2d Dept 2018], lv denied 32 NY3d 1205 [2019] citing People v. Wellington, 84 AD3d 984, 986 [2d Dept 2011], lv denied 17 NY3d 823 [2011]; People v. Hines, 46 AD3d 912, 913 [2007], lv denied 10 NY3d 812 [2008]; People v. Private, 259 AD2d 504, 504 [2d Dept 1999]). In the instant case, the police officers clearly had the right to approach (level-two of De Bour). The officer probably had the right to stop and detain (level-three of De Bour). This is based on the two subjects based on the similarities between the descriptions in the police radio (two black men, one wearing a yellow sweatshirt), and the close proximity of the subjects to the site of the crime and their presence at a location where the subjects were reported to have been traveling, and the short passage of time between the crime and observation of the three individuals: the two subjects and a third person. Regasrdless, whether it is level-two or three, does not matter because either way, the officers had the right to approach the defendant. The Seizure of the BB Pellets and the BB Guns The court notes that the pat-down would have been problematic for various reasons. However, the court need not go into that analysis since the BB pellets, found in the pocket, were never vouchered and retained, therefore, could not be presented as evidence at trial. Therefore, they are suppressed. Next, we turn to the recovery of the two BB guns from under the bush. When the police approached the defendant, he and his co-defendant placed objects under a bush and stepped away. At the time of the seizure, the defendants were 10 to 15 feet away from the bush were the weapons were recovered. Since the defendant placed the BB gun prior to any action taken by the police, it was not a “direct and spontaneous response to any illegal police activity, but was the intentional and voluntary product of a considered judgment to waive any privacy interest therein” (People v. Amuso, 44 AD3d 781, 783 [2d Dept 2007], lv denied 9 NY3d 1030 [2008]; see People v. Ramirez-Portoreal, 88 NY2d 99 [1996]; People v. Oliver, 39 AD3d 880 [2d Dept 2007], lv dismissed 9 NY3d 868 [2007]). Accordingly, the defendant lacks standing to contest the officers’ seizure of the BB guns (People v. Phipps, 168 AD3d 881 [2d Dept 2019], lv denied 33 NY3d 952 [2019]; see People v. White, 153 AD3d 1369 [2d Dept 2017]; People v. Oliver, 39 AD3d at 880-881). Therefore, the suppression of the two BB guns is denied. Suppression of Statements The People have the “heavy burden” (People v. Jin Cheng Lin, 26 NY3d 701, 719 [2016]; People v. Holland, 48 NY3d 861, 862 [1979]) to prove — beyond a reasonable doubt — that the defendant’s statements they intend to rely upon at trial are voluntary (People v. Thomas, 22 NY3d 629 [2014]; People v. Guilford, 21 NY3d 205, 208 [2013]; People v. Black, 172 AD3d 895 [2d Dept 2019], lv denied — NY3d —, 2019 NY Slip Op —, 2019 WL 3803849 [2019]). To do that, they must show that the statements were not products of coercion, either physical or psychological (see Miranda v. Arizona, 384 US 436, 448 [1966]); that they were given as a result of a “free and unconstrained choice by [their] maker” (Culombe v. Connecticut, 367 US 568, 602 [1961]). The first statement. The first statement of the defendant was made in response to the question as to ownership of the guns found in the bushes. The defendant was under arrest and handcuffed and therefore in custody. The officer, without first administering the Miranda warnings, asked who the guns belonged to. The defendant responded that the silver gun was his. Once the elements of police custody and interrogation are present, Miranda warnings must be given (People v. Torres, 172 AD3d 758 [2d Dept 2019]; People v. Huffman, 41 NY2d 29, 33 [1976]). However, the warnings were not given. Therefore, the statement as to ownership of the weapon is suppressed. As noted above, the People concede that this statement must be suppressed. The second statement “We got into a fight earlier, we are going to protect ourselves” — is also suppressed. There was no testimony as to this statement, therefore, the People did not meet their burden of demonstrating the voluntariness of defendant’s statements beyond a reasonable doubt (see People v. Thomas, 22 NY3d at 641). Accordingly, this statement is suppressed. As noted above, the People concede that this statement must be suppressed. The third statement. The more interesting and difficult question arises from the statement/ information given by the defendant to the arresting officer during the fingerprint and arrest process, when the defendant allegedly came clean with his true name, pedigree and other information. Up until then, it is alleged that the defendant gave fictitious pedigree information. While the People argue that the officer was simply taking additional pedigree information and/or that the statements were simply the res gestae of the crime of criminal impersonation, the Court disagrees. The pedigree exception does not apply here. This exception is that routine booking questions, though constituting custodial interrogation, are not subject to Miranda when the answers to these questions are “reasonably related to the police’s administrative concerns” (Pennsylvania v. Muniz, 496 US 582, 601-602 [1990]) are not protected by Miranda (People v. Rodney, 85 NY2d at 292). “The exception derives from the essential purpose of Miranda — to protect defendants from self-incrimination in response to questions posed as part of the investigation of a crime, as distinguished from noninvestigative inquiries” (id.) The facts are clear. The defendant was under arrest and had already given pedigree information; albeit allegedly false. While, the original false information falls within the pedigree exception (see People v. Rodney, 85 NY2d 289, 292 [1995]) and is admissible, once the officer’s suspicion was aroused because the defendant’s familiarity with the fingerprint and arrest process, the officer’s actions, words, attitude, and inquiries were the “functional equivalent” of interrogation. A person taken into custody for questioning must be informed of his or her Miranda rights (Miranda v. Arizona, 384 US 436, 467-473 [1966]). These Miranda warnings are an “absolute prerequisite to interrogation” (People v. Dunbar, 24 NY3d 304, 314 [2014], quoting Miranda at 471). The definition of interrogation includes the “functional equivalent of questioning” meaning “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 from the suspect” (People v. Torres, 172 AD3d 758, 760 [2d Dept 2019], quoting Rhode Island v. Innis, 446 US 291, 301 [1980]; see also People v. Ferro, 63 NY2d 316, 322-323 [1984]). Absent Miranda warnings, any statement made in response to such words or actions must be suppressed (see People v. Dunbar, 24 NY3d at 314). While it may appear to be benign on its face, the statements were clearly incriminating and against the defendant’s penal interests and designed to elicit this response (Innis at 302); especially in-light of the false impersonation charges that followed. It should be noted that had the defendant not been charged with false impersonation, the argument would not have been the subject of a Huntley Hearing, but rather a pre-trial consciousness of guilt application. Accordingly, absent a voluntary, knowing and intelligent waiver of his Miranda rights, the statements cannot be admitted against the defendant. The Court finds that the “new” pedigree information was taken in violation of the defendant’s Miranda rights and therefore, suppresses the statements. The fourth statement. At 9:40 a.m. at the precinct in response to Police Officer Agunzo pointing to the silver and dark colored imitation pistol: “Yeah that gun is mine.” The People did not elicit any testimony as to this statement and concede that this statement should be suppressed. Therefore, the People did not meet their burden of demonstrating the voluntariness of defendant’s statements beyond a reasonable doubt (see People v. Thomas, 22 NY3d at 641). As noted above, the People concede that this statement must be suppressed. Accordingly, this statement is suppressed. The fifth statement. The final issue is the oral and written statements thereafter made by the defendant to Detective Roach. They were made after Miranda warnings were given and the defendant waived those rights. The People argue that this is enough to show that he knowingly and voluntarily waiving his rights and therefore, suppression should be denied. Prior to this statement, the defendant made a statement at 9:40 a.m. This statement was at the precinct and made after Police Officer Agunzo pointed to the silver and dark-colored imitation pistol and the defendant said, “Yeah that gun is mine.” This statement — conceded by the People that it should be suppressed — was made without the defendant receiving his Miranda warnings. It was suppressed above because the defendant was in custody and the officer pointing to the pistol was the functional equivalent to an interrogation. But for this violation of Miranda, the court would find that the next statement — made with the benefit of Miranda warnings — would not be suppressed due to attenuation. However, because of that prior statement, the court finds that there was a single continuous chain of events. The purpose of the doctrine of attenuation is to determine whether there was a sufficiently “definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning” and is no longer influenced by the taint of the earlier Miranda violation (People v. Chapple, 38 NY2d 112, 115 [1975]; see Oregon v. Elstad, 470 US 298, 310-11 [1985]; People v. Paulman, 5 NY3d 122 [2005]). “[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” (id. at 130; quoting People v. Chapple, 38 NY2d 112, 114 [1975]). In determining whether there is a single, continuous chain of events, the court must consider the following factors (with no one factor being determinative): (1) the time differential between the Miranda violation and the subsequent admission; (2) whether the same police personnel were present and involved in eliciting each statement; (3) the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; (4) whether, prior to the Miranda violation, defendant indicated a willingness to speak to police; and (5) whether a change in location or the nature of questioning occurred. (Paulman, 5 NY3d at 130-31). As stated before, the court must determine whether “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) or a “single continuous chain of events” (Paulman at 130). The previous improper, inculpatory statements were made to the arresting officers, the statement made after the issuance of the Miranda warnings was made to Detective Roach (see People v. White, 10 NY3d 286, 291 [2008], cert denied 555 US 897 [2008]; People v. Paulman, 5 NY3d at 130-131; People v. Cancel, 126 AD3d 496 [1st Dept 20015], lv denied 25 NY3d 1160 [2015]). The People argue that prior to the Miranda violation, the defendant indicated a willingness to speak to police since he made several inculpatory statements prior to the issuance of the Miranda warning. It could also be argued that the statement was made in a different location and to a different police officer (see People v. Heck, 103 AD3d 1140 [4th Dept 2013], lv denied 21 NY3d 1074 [2013]). However, the strength of these factors fade away when considering the first factor: the time differential between the Miranda violation and the subsequent admission. This factor leads this court to conclude that the situation was a single, continuous chain of events. In particular, and most importantly, the time differential between the Miranda violation and statement made with the benefit of Miranda warning, was about ten minutes. Ten minutes is well-below the time appellate courts have found to be a definite and pronounced break in questioning (see e.g. People v. Farquharson, 139 AD3d 467, 467 [1st Dept 2016], lv denied 28 NY3d 929 [2016] ["many hours"]; People v. Steed, 133 AD2d 433, 434 [2d Dept 1987], app denied 70 NY2d 936 [1987] [four-hour break]; People v. Henderson, 74 AD3d 1567 [3d Dept 2010], mod on other grounds, 77 AD3d 1168 [3d Dept 2010] [six-hour break]; People v. Padilla, 28 AD3d 236, 237 [1st Dept 2006], lv denied 7 NY3d 760 [2006] [seven hours]; People v. Jenkins, 72 AD3d 591 [1st Dept 2010], lv denied 15 NY3d 774 [2010] [nine-hour break]; People v. Alexander, 63 AD3d 1166 [2d Dept 2009] [11-hour break]). Indeed, the shortest break allowed by our appellate courts appears to be one hour (People v. Dunn, 83 AD3d 1421 [4th Dept 2011], lv denied 17 NY3d 794 [2011]; People v. Oxley, 64 AD3d 1078 [3d Dept 2009], lv denied 13 NY3d 941 [2010]; In the Matter of Daniel H., 67 AD3d 527 [1st Dept 2009], app dismissed 15 NY3d 883 [2010] ["approximately one hour"]; People v. Neal, 60 AD3d 1158 3d Dept 2009], lv denied 12 NY3d 857 [2009] ["well over an hour"]). Accordingly, this statement must be suppressed. Conclusion The motions to suppress physical evidence is granted in part and denied in part: The BB’s recovered from defendant’s pocket and testimony about the BBs are suppressed; however, the BB guns recovered are not suppressed. The motions to suppress statements is granted. In particular, these statements are suppressed: defendant’s statements as to the ownership of the property both at the scene of the arrest and at the precinct; the precinct state as to his true name; and the statement made to the detective at the precinct. This constitutes the Decision and Order of the Court. IT IS SO ORDERED. Dated: August __, 2019 Kew Gardens, NY
