People v. Castano

DECISION AFTER HEARING   On August 13, 14, and 15, 2019, this Court conducted pre-trial evidentiary hearings, namely, Mapp/Wade/Huntley/Dunaway, The People called the following witnesses: Detective Sergeant Jeffrey Raymond, Police Officer Jeffrey Shaikh, Detective Dennis Wunsch, and Police Officer Alexander Ketsis. The defense called no witnesses. NOW, upon due consideration of the evidence presented, and the memorandum of law submitted by the People and attorney for defendant Castano, the Court makes the following determinations. The attorney for defendant Zapata has not made a submission for the Court’s consideration. FINDINGS OF FACT Detective Sergeant Jeffrey Raymond testified that he has been employed by the Nassau County Police Department since 1997. He is now the commanding officer of the Burglary Pattern Squad, holding this position since 2016. His duties include running the daily operations of the squad and overseeing every investigation that is performed by both the burglary detectives and the auto crime detectives. Detective Jesus Bonilla testified that he has been employed by the Nassau County Police Department for 12 years and has been working in the Burglary Pattern Squad for 3 years. Additionally, Detective Dennis Wunsch testified that he has been a member of the Nassau County Police Department for 15 years, and is currently assigned to the Burglary Pattern Squad. The Court finds the testimony of the law enforcement witnesses to have been credibly given. Detective Sergeant Raymond stated that he became involved in a pattern burglary investigation which began in May 2018 involving residential burglaries that were occurring in high-end neighborhoods and gated communities. These communities included Jericho, Woodbury, Manhasset and Old Westbury located in Nassau County, New York. Based upon his investigation, he was lead to focus on a certain vehicle which appeared to be involved in the series of burglaries, namely a 2011 Grey BMW X5 with license plate HYS3656. This vehicle was seen pre and post burglaries on various surveillance videos in the surrounding areas. The vehicle had unique identifying features, such as tinted windows, premium package wheels which were not standard, running boards which were not standard, and signal lights in the front corner panels on the side of the car which were standard for that year the vehicle was manufactured. The license plate of the subject vehicle was obtained by the detective sergeant when he received a phone call from the Harrison Police Department located in upstate New York. They informed him that the vehicle was seen on video camera pre and post burglaries occurring in that jurisdiction. Several license plate readers captured the vehicle’s plate information. Additionally, the burglaries occurring there were also within gated communities. On September 21, 2018, Det. Sgt. Raymond had the vehicle under surveillance for several hours. It was first observed backed into the driveway located at 84-26 57th Road in Flushing, Queens. He identified the car by the license plate and the aforementioned features. The detective sergeant observed a male exit the residence and enter the vehicle. From the course of the investigation into the vehicle, he recognized that person to be defendant Brayan Castano. Defendant Castano had received several tickets from different agencies with respect to the BMW. Detective Sgt. Raymond was able to view photographs of the defendant so he knew what he looked like. After Det. Sgt. Raymond witnessed defendant Castano enter the BMW, he followed it in his unmarked car. Enlisted in the pursuit were Detective Jesus Bonilla, Det. Dennis Wunsch, Police Officer Jeffrey Shaikh and the Aviation Unit. The vehicle was followed from Queens County to Nassau County upon various roads. Along with the BMW X5, the officers determined that a Hyundai Santa Fe was involved, so that vehicle became under surveillance as well. During the entire pursuit, the officers were in constant communication concerning the whereabouts of the vehicles. During the course of the surveillance, Det. Sgt. Raymond observed the BMW stopped, with its headlights on, located at Marion Lane just off of and facing Jericho Turnpike. Detective Bonilla observed Castano dropping off two people in a nearby park, adjacent to the gated community. Detective Wunsch informed Det. Sgt. Raymond that the Aviation Unit spotted two individuals in the rear yard of 8 Annette Way. The detective sergeant then went to Ellen Place where he observed the Hyundai Santa Fe, with Louisiana plates parked near the entrance of the gated community, and observed Det. Bonilla’s vehicle parked, with the lights turned off, in the driveway across from it. The Santa Fe was parked with the lights turned off a few houses away from the entrance of Annette Way. Detective Sergeant Raymond parked his vehicle around the corner on Fox Lane, got out, and walked to Ellen Place towards the entrance of the gated community. He passed the Santa Fe and looked inside. Since the windows were tinted, he could not see in the rear of the vehicle to determine if someone was located inside. Detective Bonilla joined Det. Sgt. Raymond to approach 8 Annette Way. As the detectives approached the location, the Aviation Unit informed them that it appeared that one of the individuals had gained entry into the house through the rear door. The detectives split up, one going left and one going right towards the backyard of the house. Detective Sergeant Raymond jumped a four foot metal fence to the yard when he encountered a male dressed in all black, wearing a face mask. The perpetrator had an object in his right hand that the detective thought was a firearm. The perpetrator turned and ran in the direction of Det. Bonilla yelling, “Policia” and “run, run” in the Spanish language. Detective Bonilla was able to tackle the perpetrator while Det.Sgt. Raymond kicked him twice in the hand, dislodging the object which turned out to be a two-way radio. The perpetrator, identified as defendant Zapata, resisted by engaging in a fistfight with Det. Bonilla. The detective pulled off the ski mask and pulled white ear buds out the defendant’s ears after he witnessed the defendant yell into them. Once defendant Zapata was placed into custody, his clothing, ear buds, gloves, a radio, and a cell phone were recovered and vouchered as evidence. Defendant Zapata was transported to the 2nd Precinct for arrest processing by Police Officer Alexander Ketsis who testified that no one had any conversation with the defendant during the transport. While at the scene, Det. Sgt. Raymond observed a male, dressed in all black, crawling out from the broken glass at the bottom of the door. He began to run at the perpetrator as the male held up an object and stated in a strong Spanish accent, “I shoot you.” While a chase of the perpetrator ensued, the detective observed him to drop a backpack in a neighboring backyard which was thereafter recovered. To date, this particular perpetrator has not been apprehended. Police Officer Jeffrey Shaikh testified that he has been employed by the Nassau County Police Department for 20 years and has worked in the K9 Unit for 9 years. On September 21, 2018, at approximately 8:30 p.m., he was patrolling northbound on the Seaford Oyster Bay Expressway when he heard on the radio that detectives were pursuing a vehicle. Upon receiving information from the Aviation Unit, PO Shaikh responded to the location near the Long Island Expressway and Robbins Lane. First he parked his vehicle in the vicinity of Annette Way, and then upon receiving a further communication, PO Shaikh traveled onto Ellen Place. Here he observed the Santa Fe and proceeded to pull directly in front of it so as to block its ability to move. Detective Wunsch positioned his vehicle so as to block the driver’s side door. Police Officer Shaikh directed the driver to exit the passenger side door where he was located. The perpetrator, Oscar Vera, exited the vehicle with his hands raised. He was placed on the ground and handcuffed. Detective Wunsch testified that as Vera exited the vehicle, the detective noticed him to have wireless ear buds in his ears and heard Vera saying, “Policia, policia, go, go, go.” The ear buds and an Iphone and Samsung cellular phone were recovered from Vera’s front pocket. Thereafter, PO Shaikh was told the whereabouts of the BMW X5 by the Aviation Unit so he traveled to that location. When he observed the vehicle approaching towards him, PO Shaikh activated his emergency lights and the vehicle stopped in front of him. Police Officer Shaikh pointed his flood lights into the vehicle, then approached the driver’s side door at gunpoint for safety purposes. He observed defendant Castano to be seated in the driver’s seat of the BMW. Despite the fact that the defendant was ordered to show his hands a couple of times, he kept his right hand lower than the steering wheel. Additionally, defendant Castano failed to place the car in park when the officer ordered him to do so multiple times. In response to an investigatory inquiry, defendant Castano stated to PO Shaikh, in sum and substance, “that he didn’t do anything, that he was just there to pick someone up, and that he had a wife and child.” Eventually, the defendant placed the car in park. Defendant was ordered to keep his hands on the steering wheel while PO Shaikh communicated with the Aviation Unit and asked for backup. Thereafter, defendant failed to obey the command and lowered his right hand back down so the officer ordered him out of the vehicle. Since the officer did not know exactly where the other perpetrators were located at the time, he deemed it safer to place defendant Castano onto the ground and to handcuff him. Upon his order, defendant Castano lowered himself slowly to the ground onto his stomach. While doing so, the defendant placed his left hand out but his right hand was tucked in underneath him. The officer noticed the defendant to be wearing a belt which was holding a bag, commonly known as a fanny pack. This pack was situated underneath the defendant near his stomach. Police Officer Shaikh rolled defendant onto his right side and patted the defendant down. He asked the defendant what the bag contained and the defendant replied that he thought his phone was in there. Police Officer Shaikh touched the fanny pack and felt a hard object. He then first placed the defendant’s outstretched left hand in handcuffs, then his right hand which was located underneath the defendant’s stomach. Simultaneously, back up arrived, the defendant was picked up, and PO Shaikh grabbed the bag to check the contents for any object that would be harmful to the officers. Seeing that there were no weapons, the officer placed the pack to the side. Detective Wunsch searched the pack and recovered a Samsung cell phone, cash, credit cards, and wallet. Jewelry and ear buds were recovered off of his person. Defendant Castano was placed into custody and transported to the 2nd Precinct by Police Officer Christopher Lovelace. During the transport, no one had any conversation with the defendant. At the 2nd Precinct, Det. Bonilla advised defendant Zapata of his Miranda rights in the Spanish language via a rights card.¹ Detective Wunsch was present. Detective Bonilla testified that he is fluent in the Spanish language. After acknowledging that he understood his rights and agreed to waive same, as evidenced by his signature and his affirmative responses to the questions, the defendant gave a written statement.² The statement was written by the detective in English, translated to the defendant in Spanish. The defendant was given an opportunity to make corrections on the statement. The detective testified that no threats, coercion or force was utilized to get defendant to give a written statement. After the statement was taken from defendant Zapata, Det. Bonilla showed him a single photograph of Brayan Castano and asked him whom it depicted. Defendant Zapata wrote on the paper, in Spanish, that it was “Arturo.” The defendant, Det. Bonilla and Det. Wunsch signed the paper which depicted defendant Castano’s photograph. Thereafter, Det. Bonilla showed defendant Zapata a series of videotapes of burglaries at various locations, dates and times and asked whether he could identify any person depicted in the videotapes. Defendant Zapata made statements relating to these videos. At the 2nd Precinct, Det. Wunsch read defendant Castano his Miranda rights via a rights card.³ On the card the defendant wrote that he understood his rights, was willing to answer questions, but refused to sign the card. The defendant then made oral statements in response to the detective’s questions. No threats, promises, or coercion was utilized to get defendant to make these statements. Detective Wunsch testified that as a result of this investigation, the following six cellular phones were recovered: a black iPhone and a Samsung attributed to Vera, a Samsung attributed to Zapata, and a Samsung, iPhone and a Motorola attributed to Castano. The Samsung attributed to Castano was recovered from his person at the time of the arrest while the iPhone and Motorola were recovered from the BMW pursuant to a Court ordered search warrant. Additionally, Court ordered search warrants were obtained to download the relevant content of each of these phones. With respect to the three Samsung cell phones, in the search warrant affidavit Det. Wunsch described the make, the IMEI number and an FCC number on the phone to particularize which phones he sought to investigate. The detective testified that he needed to remove the back of the phones and remove the battery as these numbers were affixed to the back. He additionally testified that he did not have to enter or search the contents of the actual phone at all to obtain this identifying information. With respect to the two iPhones that were recovered, the search warrant affidavit described the make and the color. Detective Wunsch testified that the IMEI numbers were not delineated because the phones themselves are encased and could not be opened to obtain the identifying numbers. With respect to the Motorola cell phone, the search warrant affidavit described the make and also the IMEI number. Detective Wunsch testified that he needed to remove the back of this phone and remove the battery to obtain the identifying number. However, he did not have to enter or search the contents of the phone to obtain this number. With respect to the Garmin GPS, Det. Wunsch testified that it was affixed to the windshield of the BMW. He stated that the “arm” of the device was taken off the windshield so he could obtain the serial number. Upon questioning by the Court, Det. Wunsch testified that he did not need to open the GPS device to obtain the serial number as it was affixed to the outside of the device on its arm. CONCLUSIONS OF LAW DUNAWAY Criminal Procedure Law §140.10(1)(b) states, in pertinent part, that a police officer may arrest a person for a crime without a warrant of arrest when he has reasonable cause to believe that such person committed such crime, whether in his presence or otherwise. It is well settled that “reasonable cause” is not proof beyond a reasonable doubt or even evidence sufficient to warrant a conviction (See, People v. Hill, 146 AD2d 823y (3rd Dept. 1989)). It is information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that crime is or was committed, and that it is more probable than not that the defendant was the person who committed the crime in question (See, People v. McRay, 51 NY2d 594 (1980); People v. Graham, 211 AD2d 55 (1st Dept. 1995), lv den. 86 NY2d 795 (1995)). The court finds that the People have met their burden to support a finding of probable cause to arrest the defendants in the instant action. The court makes this finding based upon the credible testimony of the detectives and police officers who were involved in this case. The detectives investigated this residential pattern burglary for months before they got a tip from the Harrison Police Department concerning the license plate number of the BMW X5 which the police believed was involved in all the burglaries. Acting upon this tip, the detectives identified the address and registered owner of the vehicle, namely Brayan Castano. On September 21, 2018, a surveillance of the driver and vehicle began in Queens, New York which led to Nassau County, New York. As delineated in the Statement of Facts, defendants Castano and Zapata were arrested at or near the scene of 8 Annette Way, Jericho, New York. The Court finds that the People have met their burden of probable cause to arrest the defendants as the detectives had reasonable cause to believe that a crime had been committed and that the defendants committed it. HUNTLEY The Court finds that the defendant Zapata’s spontaneous statements made at the time of the arrest at approximately 8:50 p.m. were not triggered by any police conduct which could reasonably have been expected to evoke a declaration from him, and shall not be suppressed (See, People v. Rivers, 56 N.Y.2d 476, 480, 453 N.Y.S.2d 156, 438 N.E.2d 862; People v. West, 237 A.D.2d 315, 654 N.Y.S.2d 390; People v. Baliukonis, 35 A.D.3d 626, 627, 829 N.Y.S.2d 112, 113 (2006)). The Court finds that defendant Castano’s statement at approximately 8:52 p.m. at the scene of the arrest was made in response to an investigatory stop, not the result of custodial interrogation, and shall not be suppressed. Temporary detentions where the officer reasonably suspects that such person is committing, has committed or is about to commit either a felony or a misdemeanor is legal and the officer may demand the person’s name, address and an explanation of conduct. (See, CPL 140.50(1)). Such investigatory detentions are generally non-custodial in nature and do not require the administration of Miranda warnings. The applicable standard for determining whether an interrogation is or is not custodial is whether a reasonable person, innocent of any crime, would have believed he was free to leave had he been in the defendant’s position. The issue of custody is not determined by the subjective beliefs of the individual defendant or of the police officer, except to the extent that his or her belief is communicated to the defendant. Here, when PO Shaikh approached defendant Castano’s vehicle, he instructed him to place the car in park a few times. At first the defendant was noncompliant. During the course of the exchange of putting the car in park, defendant volunteered the statement as to why he was in the area. This was made not in response to any specific questioning by the officer. The Court finds that the officer was not required to administer Miranda warnings before conducting the initial investigation. Therefore, this statement shall not be suppressed. The Court finds that defendant Zapata’s written statement and defendant Castano’s oral statement made at the precinct are admissible as they were made after Miranda warnings were properly administered by the detective. The defendant Zapata’s and Castano’s oral responses of “yes” to the detective’s questions regarding whether they understood their Miranda warnings and whether they were willing to answer questions represents a knowing, voluntary, and intelligent waiver of their Miranda rights. So too defendant Zapata’s writing the word “yes” on the Miranda Rights Card in answer to each of those questions (see, Miranda v. Arizona, 384 US 436 (1966); People v. Williams, 62 NY2d 285 (1984); People v. Baliukouis, 35 AD3d 626(2nd Dept. 2006)). Moreover, the People have met their burden of demonstrating beyond a reasonable doubt the voluntariness of the defendants’ statements. Accordingly, the defendant Zapata’s and defendant Castano’s motion to suppress statements made to law enforcement at the precinct is hereby denied. MAPP Defendant Zapata moves to suppress the following property recovered as a result of his arrest: a Motorola two-way radio, ear buds, black gloves, black pants, black jacket, $175 U.S. currency, and a Samsung phone. Defendant Castano moves to suppress the following property recovered as a result of his arrest: the BMW X5 and all of it contents including the Motorola Moto Phone, the White Apple iPhone and the Garmin GPS. He further moves to suppress all fruits of the search warrants issued for property seized as a result of defendant Castano’s arrest including a search warrant ordered for the BMW X5, the search warrant for the white iPhone, Motorola Moto phone and Garmin GPS device, the search warrant for the Samsung phone recovered from the fanny pack, and the search warrants for data associated with the telephone numbers of any of the aforementioned devices. On the basis of a Fourth Amendment violation, defendant Castano moves to suppress all evidence seized from the fanny pack at the time of arrest, including the Samsung phone, a wallet, credit cards, various denominations of currency and ear buds. On the same basis, defendant further moves to suppress the Motorola Moto phone, the white Apple iPhone and the Garmin GPS, as well as any evidence gathered therefrom, and any evidence gathered by the execution of the search warrant. The defendants’ applications to suppress are respectfully denied in their entirety. A defendant has the burden of proof when he challenges the legality of a search and seizure (See, Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 84 L.Ed.2d 307). However, the People bear the initial burden of establishing the legality of the police conduct (People v. Malinsky, 15 N.Y.2d 86, 91, 262 N.Y.S.2d 65, 70, 209 N.E.2d 694, 698, n. 2). These considerations require that the People show that the search was made pursuant to, inter alia, a valid warrant, consent, or incident to a lawful arrest. If the People satisfy their burden, it then shifts back to the defendant to prove, by a preponderance of the evidence, that the police conduct was illegal and that the evidence should be suppressed since it is causally connected to the misconduct (See, People v. Burton, 130 AD2d 675; People v. Berrios, 28 NY2d 361, 368; People v. Feingold, 106 AD2d 583, 584). With respect to defendant Zapata, applying the above principles to the case at bar, the Court finds that the People have met their initial burden of establishing the legality of the police conduct. The defendant was arrested based upon probable cause, therefore, any property recovered from his person is incident to a lawful arrest. Since the defendant failed to come forward to prove, by a preponderance of the evidence that the police conduct was illegal, the application to suppress is denied. With respect to defendant Castano, the Court finds that the people have met their initial burden of establishing the legality of the police conduct. The defendant was arrested based upon probable cause, therefore, any property recovered from his person in incident to a lawful arrest. With respect to the fanny pack and the contents recovered therein, CPL 140.50(3) provides in pertinent part, if “…a police officer…reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.” In People v. Smith, 59 AD2d 454, 455, the Court of Appeals held that “a container capable of concealing a weapon and the contents of which are readily accessible, taken from a person arrested or from the area readily accessible to him, may be searched without a warrant when the search is close in time to the arrest and there is reason to suspect that the arrested person may be armed.” Furthermore, “for compelling reasons, such as safety of the officers or the public or to protect the person arrested from embarrassment, a search not significantly divorced in time or place from the arrest may be conducted even though the arrested person has been subdued and his closed container is within the exclusive control of the police.” id at 458 (internal citations omitted). In People v. Alvarado, 126 AD3d 803, the Appellate Division, Second Department held that based on a radio report of a shooting and the defendant’s appearance, the officer had reason to believe that he was faced with a dangerous situation warranting a non-arrest detention of the defendant and a search for weapons as a precautionary measure. There, the officer took a backpack from the defendant, put it on a hood of a nearby car, searched the defendant for weapons, and handcuffed the defendant close to where the backpack was located. “The arresting officer properly searched the defendant’s backpack incident to the lawful arrest. The People presented evidence establishing exigent circumstances at the time of the arrest that would justify the search. The circumstances supported a reasonable belief that the backpack contained a weapon.” Id. at 805. On this record, it is clear that PO Shaikh was justified in removing defendant Castano’s fanny pack and contemporaneously searching it. The credible evidence reveals that the officer, without any back up assistance, came upon the location of the defendant when he had information that a burglary had occurred a few blocks away and that there was at least one unapprehended individual who was possibly armed. While seated in his vehicle, defendant Castano failed to obey basic commands of the officer by keeping his hands visible, and by putting the car in a parked position. Additionally, once placed prone on the ground outside the vehicle, defendant Castano kept one hand placed underneath his stomach where the fanny pack was located. When the officer turned the defendant onto his side he felt a hard object inside the fanny pack. Contemporaneously when PO Shaikh was attempting to handcuff the defendant, two officers arrived to render assistance in the arrest. For safety concerns, PO Shaikh immediately opened the fanny pack to search for weapons. The Court finds the conduct of the search by PO Shaikh to have been reasonable under the circumstances. Whether the defendant could have had access to the fanny pack at the moment it was being searched is irrelevant. As in People v. Smith, supra at 459, the Court finds that the defendant clearly could have had access when arrested and neither the distance from nor the time elapsed since the arrest was sufficient to dissipate the reasonableness of conducting a search of the fanny pack without a warrant. Since defendant has failed to come forward with sufficient proof of illegality by law enforcement, by a preponderance of the evidence, his motion to suppress physical evidence with respect to the fanny pack and its contents therein, is denied. The Court has considered the case law submitted by the defendant and find it to be distinguishable from the case at bar. With respect to the Garmin GPS, the Samsung phone and the Motorola Moto phone recovered and attributed to defendant Castano, the Court finds that the police conduct in obtaining identifying information was lawful. The defendant’s argument that the search was conducted in violation of defendant’s Fourth Amendment rights is without merit. The Court relies on the case of People v. Ward, 169 AD3d 833 (2019) for its ruling. The Appellate Division, Second Department held that the “intrusion on the defendant’s privacy was limited to the fact of his ownership of the phone, and did not implicate any of the aspects found to distinguish a digital search from a search of any other physical object.” id. At 835. The credible testimony revealed that Det. Wunsch opened the phones, removed the batteries and viewed the serial numbers. A search of the actual contents of the phones was not conducted until after a proper search warrant was applied for and issued by this Court. Additionally, Det. Wunsch obtained the serial number of the Garmin GPS by removing the device from the windshield and by looking on the “arm” of the device. He testified that the device itself was not opened and no information was extracted from it at that point. A search warrant was subsequently obtained to search the contents of that device. Therefore, defendant’s motion to suppress is denied in its entirety. Defendant’s argument that all fruits of the searches of his person, vehicle, fanny pack, as well as the fruits of the warrants which were returned, must be suppressed is not supported by the record or by controlling precedent. WADE “It is firmly established in our jurisprudence that unduly 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 N.Y.2d 327, 335, 552 N.E.2d 608, 612 (1990); see also, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926; People v. Blake, 35 N.Y.2d 331, 361 N.Y.S.2d 881, 320 N.E.2d 625; People v. Riley, 70 N.Y.2d 523, 522 N.Y.S.2d 842, 517 N.E.2d 520; People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379). At a Wade hearing, the People have the burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure. The defendant bears the ultimate burden of proving that the procedure was unduly suggestive (see, People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 270 N.E.2d 709). “Where suggestiveness is shown, it is the People’s burden to demonstrate the existence of an independent source by clear and convincing evidence. Absent some showing of impermissible suggestiveness, however, there is no burden upon the People, nor is there any need, to demonstrate that a source independent of the pretrial identification procedure exists for the witness’s in-court identification.” People v. Chipp, supra at 613. The Court finds that the People have failed to meet their initial burden. It has long been held that identifications arising out of single photographic displays are inherently suggestive. In the case at bar, the People have not established, as a matter of law, that the identification of defendant Castano from the single photograph was merely “confirmatory” in nature (See, People v. Rodriguez, 79 NY2d 455; see also People v. Breland 83 NY2d 286, People v. Lathrop 242 AD2d 876). It is incumbent upon the People to demonstrate the existence of an independent source by clear and convincing evidence. Such hearing shall be scheduled at the next Court date. Accordingly, it is ORDERED, that the defendants’ application to suppress statement evidence is hereby DENIED, and it is further ORDERED, that the defendants’ application to suppress physical evidence is hereby DENIED, and it is further ORDERED, that defendant Castano’s application to suppress identification evidence is GRANTED to the extent that a further independent source hearing shall be conducted. The foregoing constitutes the opinion, decision and order of the Court. Applications not specifically addressed herein are denied. Dated: September 20, 2019 Mineola, New York