DECISION AND ORDER On August 27, 28, and 29, 2019, this Court conducted a combined Dunaway, Huntley, and Mapp hearing. Detectives Edwin Vargas and James Coffey testified for the People. The defendant did not present any evidence. The Court heard oral argument from the parties. The defendant’s Huntley motion is denied in part and granted in part. The remainder of the defendant’s motion is denied. The Court makes the following findings of fact and conclusions of law. Findings of Fact Detective Edwin Vargas, currently assigned to the 61st Precinct Detective Squad, testified that he has been employed by the New York Police Department (hereinafter “NYPD”) for approximately 14 years. On August 27, 2015, Vargas, then an Anti-Crime officer in the 61st Precinct, was assigned to assist in an investigation into the shooting death of Darnell Warren that had taken place at approximately 10:00 p.m. on August 26, 2015. In connection with that investigation, Vargas viewed video surveillance recordings from the Nostrand/Sheepshead Housing Developments, where the homicide had taken place.1 Vargas testified that he recognized two individuals on those recordings, Ramon Cooper — the defendant,2 and Manny Rivera. Vargas, who knew the defendant by name and that he resided in the Nostrand/Sheepshead Houses, was familiar with the defendant from his work in the 61st Precinct, having encountered him on five prior occasions.3 Vargas testified that the video surveillance recordings from August 26th showed the victim, whom he later learned to be Darnell Warren, in the courtyard of the Nostrand/Sheepshead Houses, when, at approximately 10:00 p.m., the defendant and Rivera walked by him on their way to the other side of the courtyard, where they remained for approximately 5 minutes. The defendant and Rivera then walked back to the victim, approaching him. The three had an animated conversation where the victim can be seen throwing his hands up in the air just as muzzle flashes light up the screen — the flashes coming directly from the defendant and Rivera, who then immediately fled the scene. Moments later, the defendant and Rivera can be seen, on exceptionally clear video surveillance, entering a nearby building in the same housing complex. On August 27th, shortly after viewing the video surveillance recordings, Vargas and fellow Anti-Crime Officer Droluk were on patrol in separate unmarked police cars, “scanning” the area of the Nostrand/Sheepshead Houses for the defendant. At approximately 3:00 p.m. that afternoon, Vargas observed the defendant at the corner of Nostrand Avenue and Avenue W and called Droluk to alert him to the defendant’s presence. Vargas provided a description of the defendant and informed Droluk that he believed that the defendant might flee. As Droluk got out of his car and approached the defendant, the defendant took off running — Droluk immediately gave chase. The defendant made it only a few feet before Droluk was able to restrain him.4 As Vargas approached, he heard the defendant say, I have a gun, I have a gun in my shorts. Vargas immediately patted the defendant down and felt an object that appeared to be a gun in the defendant’s shorts. Vargas, unable to remove the gun as it was tangled in the defendant’s underwear, told fellow officers to move away as he was concerned that he could inadvertently pull the trigger. Vargas eventually removed the gun without incident.5 Detective James Coffey, currently assigned to Brooklyn South Homicide, testified that he has been employed by the NYPD for approximately twenty-three years. On August 26, 2015, Coffey was assigned to assist in an investigation into the shooting death of Darnell Warren. He, too, watched the video surveillance recordings of the homicide from the Nostrand/Sheepshead Houses. On August 27, 2015 at approximately 3:00 p.m., Coffey was present with the lead detective, Neil Boyce, in the 61st Precinct when they learned that Ramon Cooper, the defendant, had been arrested by Anti-Crime officers.6 Later that same day, at approximately 6:40 p.m., Coffey and Boyce conducted a video recorded interview of the defendant at the 61st Precinct, that concluded at approximately 9:30 p.m. Later, at approximately 11:10 p.m., Coffey and Boyce were present for a second recorded interview of the defendant, also at the 61st Precinct, conducted by an Assistant District Attorney (hereinafter “ADA”). That interview, on the same floor of the precinct, in a different room, lasted until approximately 11:35 p.m.7 At the beginning of the first interview, the defendant, handcuffed, walked into the interview room accompanied by Boyce and Coffey. The defendant, holding a bottled beverage in his handcuffed hands, was then uncuffed, sat in a chair, and placed the beverage on the table. He sipped from it throughout the interview. Detective Boyce, who, like Vargas, knew the defendant, immediately provided the defendant with Miranda warnings. The defendant answered “yes” or “yes sir” after each question and agreed to speak with the detectives. The defendant, who was chatty and cooperative, immediately admitted fleeing from the police earlier that day and possessing the gun with which he was arrested. Moments after his confession, the defendant volunteered, without prompting, to serve as a police informant in exchange for leniency on that gun charge, reminding Boyce that he had previously provided information useful to him. The defendant readily offered to provide information on assorted subjects from drugs to murders, providing the names and nicknames of individuals he believed to be responsible for myriad crimes, telling the detectives that he would help them, if they helped him. The defendant further volunteered to show the detectives Facebook images of the individuals to whom he was referring, wear an ankle bracelet, and use an NYPD issued cellular phone to gather information. He instructed the detectives what to wear and what to say, so that they could conduct a successful undercover operation. Indeed, during the first twenty-five minutes of the interview, the defendant, who did the overwhelming majority of the talking, was asked few questions. Throughout that time, the defendant laughed along with the detectives, stood up several times, walked about, drank his drink, pointed at the detectives, acted out what he was describing, and at least once, fist bumped Boyce. The detectives, however, interested in obtaining information from the defendant regarding the homicide that occurred the day before the gun arrest, attempted to redirect the conversation. The defendant, in response, talked and talked but said nothing of the murder, reiterating that he could be useful to them and repeatedly steering the conversation to more mundane topics. But, later, when the gabby defendant outlined his future plans, including obtaining a job through a cousin and relocating to New Orleans as soon as he turned 18, making plain that he believed his cooperation would allow him to dodge the gun charge, the detectives appeared to have had enough. Seemingly frustrated by the defendant’s jocularity and continued obfuscation, and their unsuccessful efforts to dominate him, the detectives ratcheted up their interrogation. Coffey told the defendant straight up that he would not be relocating to New Orleans until he was “about 80 years old,” as he would be going to prison for a “very, very long time,” forcefully advising the defendant that he was on video at the scene of the homicide and that this was his “last chance.” The detectives then left the defendant alone in the interview room. The detectives returned with a series of photographs from the murder scene and confronted the defendant. After viewing the photos, the defendant denied any involvement in the homicide. When Coffey told the defendant that he was on the video surveillance recordings of the homicide “clear as day,” the defendant responded, in substance, don’t play tricks on me. Shortly thereafter, the defendant told the detectives that he wanted to call to his mother.8 Boyce replied that he would first have to tell him “what the fuck happened” the previous evening regarding the homicide. The pressure continued and an increasingly anxious defendant stated, in substance, you all playing with me right now, can my mom be here while you all are talking to me please, I don’t feel comfortable bro. The detectives, rather than responding, left the room. The detectives returned with additional photographs, telling him that they were “getting closer to the prize.” Within seconds, the defendant again said he wanted to call his mom “real fast.” The detectives again ignored that request, pressing the defendant to name those who appeared in the photographs. Minutes later, the defendant said, I just wanted to call my mom before all this. Over the next several minutes, the defendant repeated his pleas — I just wanted to speak to my mom — but the detectives plowed ahead. Eventually the defendant did identify individuals in the photographs, but told the detectives, in substance, you swindling me, you ain’t got a clear picture of me. Coffey responded with, “I can’t stress this enough my man, you’re fucked.” The defendant, at this point beyond anxious, said, I just wanted to speak to my mom before I spoke to you all, to which Coffey responded, in substance, we know that you shot him, we got you, that’s it, we just want to know why, let’s just get through all this and you’ll have the opportunity to speak to your mother. The interview escalated and minutes later, Boyce yelled, in substance, I know what the fuck happened and I’m trying to help you, I know you fucking did it. Shortly thereafter, the defendant again said, I just wanna speak to my mom real fast. Moments later, an increasingly desperate defendant said, can I please call my mom then we can really sit down and talk a little more. The defendant continued to ask to speak to his mom, adding that he hadn’t seen her all day. He wanted to speak to his mom, he said, before he ended up going to jail for 25 years. Shortly thereafter, the detectives again left the room. When the detectives returned and gave the defendant a cigarette, he immediately asked, I still can’t call my mom, bro? Boyce replied, in substance, you’re gonna talk to your mom at some point tonight, we gotta handle this like men right now, you will speak to your mom at some point tonight, but we gotta get through this first. The defendant responded, I don’t even have a lawyer here, I’m going through a murder case, I’m at least supposed to have a parent here. The interrogation continued. Boyce finally told the defendant that he knew the victim had pushed him to commit the murder. As the pressure mounted, so too did the pleas, with the defendant asking to speak with his mother several more times, but to no avail. And, after keeping the detectives at bay for almost 2 hours, the worn down defendant finally confessed to the murder.9 The defendant then immediately inquired, I can call my mom now? The detectives left the interview room. When the detectives returned this time, Boyce told him that he had contacted his mother and that she would be coming to see him as soon as possible. Boyce asked several more questions then, satisfied with the defendant’s answers, asked if he wanted something to eat.10 The defendant placed his dinner order and asked for a sweatshirt, as he was cold. Boyce returned a few minutes later with an additional shirt for him to wear. Boyce then asked if the defendant would speak with an ADA who was interested in hearing his side of the story. The defendant asked if he could still help himself and Boyce repeated that the ADA wanted to hear his side of the story. The defendant agreed to speak to the ADA. At the beginning of the second interview, just 90 minutes after the first interview had ended, and just down the hall, the ADA introduced himself and Detectives Boyce and Coffey. The ADA, who was sitting across a desk from the uncuffed defendant, told the defendant that the interview was being recorded and that before speaking to him, he would provide the defendant with Miranda warnings, and did so. The defendant responded “yes, sir” to each question, indicating that he understood, and then agreed to speak with the ADA. The defendant, less animated than in the first interview, responded appropriately to the questions posed to him. The ADA, calm, professional, and polite, engaged in a conversation with the defendant. The defendant admitted to shooting the victim, indicating that it was self-defense, but conceding that he did not see a gun in the victim’s hand before he shot him.11 Conclusions of Law The Court credits the testimony of Detectives James Coffey and Edwin Vargas. Dunaway The People have met their burden of demonstrating that the police had probable cause to arrest the defendant. Of course, “[p]robable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt.” People v. Mercado, 68 N.Y.2d 874, 877 (1986). Rather, it must be “more probable than not that a crime has taken place and that the one arrested is its perpetrator.” People v. Carrasquillo, 54 N.Y.2d 248, 254 (1981). In the instant matter, Officer Vargas, familiar with the defendant and his companion, Manny Rivera, observed video surveillance recordings showing the two engaged in a heated conversation with the victim, Darnell Warren, who threw his hands up in the air seconds before muzzle flashes emanated from the defendant and Rivera. Based on the foregoing, the police had probable cause to arrest the defendant for the shooting death of Darnell Warren. See generally People v. Jackson, 168 A.D.3d 473 (1st Dept. 2019); People v. Young, 152 A.D.3d 981 (3d Dept. 2017); People v. Bethune, 65 A.D.3d 749 (3d Dept. 2009). That Officer Droluk, an Anti-Crime officer who was part of a team of officers tasked with patrolling the area of the Nostrand/Sheepshead Houses in an effort to locate the defendant, may not have had first-hand knowledge of that probable cause, is immaterial. Indeed, Droluk was entitled to rely on what his fellow officer — Vargas — had learned and observed. See People v. Ketcham, 93 N.Y.2d 416 (1999); People v. Moreno, 148 A.D.3d 827 (2d Dept. 2017). Additionally, probable cause may be based on circumstantial evidence, see generally People v. Aguilera, 158 A.D.3d 638 (2d Dept. 2018); People v. Rodriguez, 84 A.D.3d 500 (1st Dept. 2011); People v. Teasely, 88 A.D.3d 490 (1st Dept. 2011), and it is of no moment that the defendant’s culpability may have been based on an acting in concert theory, see generally People v. Elder, 24 A.D.3d 221 (1st Dept. 2005); People v. Davis, 308 A.D.2d 343 (1st Dept. 2003). Mapp The defendant moves to suppress a firearm that was recovered from him at the time of his arrest. As that firearm was recovered pursuant to the defendant’s lawful arrest, see infra, the motion is denied. See generally People v. Sims, 289 A.D.2d 597 (2d Dept. 2001); see also People v. Valentine, 220 A.D.2d 708 (2d Dept. 1995). Huntley STATEMENT AT THE TIME OF ARREST The defendant moves to suppress a statement made by him on the street during the course of his apprehension. When Officer Droluk caught up with the fleeing defendant, the defendant exclaimed, I have a gun, I have a gun in my shorts, and continued to so exclaim as Officer Vargas approached. Although the defendant was being placed into custody at the time, he was neither being questioned nor interrogated.12 His statement, therefore, volunteering the location of the firearm that he was carrying, was spontaneous. See People v. Huff, 132 A.d.2d 622 (2d Dept. 1987); see also People v. Dealma, 291 A.D.2d 207 (1st Dept. 2002); People v. Blunt, 273 A.D.2d 146 (1st Dept. 2000). Accordingly, the motion to suppress that statement is denied. THE TWO POST-MIRANDA VIDEO RECORDED STATEMENTS The defendant further moves to suppress the two post-Miranda video recorded statements that he made at the 61st Precinct following his arrest. While the initial portion of the defendant’s first statement was entirely voluntary, the remainder of that statement was not. The bulk of that statement, therefore, as apportioned below, must be suppressed. Additionally, as the defendant’s second precinct statement was not sufficiently attenuated from the involuntariness, it, too, must be suppressed in its entirety. The uncontradicted hearing testimony and the video recording establish that the defendant was advised of his Miranda rights at the beginning of the first precinct statement. See Miranda v. Arizona, 384 U.S. 436 (1966); see also People v. Anderson, 146 A.D.2d 638 (2d Dept. 1989). So too, the video recording establishes that the defendant explicitly waived those rights at the beginning of that statement. See generally People v. Rivas, 175 A.D.2d 186 (2d Dept. 1991).13 Immediately following his knowing and voluntary Miranda waiver, the defendant swiftly and freely admitted that he had been in possession of a gun at the time of his arrest. The defendant next launched into a chronicle of criminal activity in his neighborhood. Indeed, it was the defendant, and not the interviewing detectives, who initiated a conversation about providing information, and the defendant who repeatedly volunteered to do so in exchange for consideration. In fact, the defendant, already familiar with the law of the streets — a former confidential informant — held his own against two seasoned detectives, working tirelessly to prove his potential worth in an effort to gain his freedom. Notably, the defendant reminded the detectives that the information that he had previously provided had proven to be useful and continued to name names. Indeed, the defendant, eager to renew his work with the detectives, suggested that he be fitted with a tracking device or provided with a cell phone so that he could continue to be of service while at liberty. What is more, the defendant drank, joked, waltzed around the room, and fist bumped the detective like a cohort. The defendant, the opposite of cowed and seemingly unafraid, artfully steered the conversation. To be sure, the only topic the defendant was unwilling to discuss, and about which he held firm, was the homicide. The Court can only conclude, therefore, that the aforementioned portion of the defendant’s first videotaped statement was incontrovertibly voluntary.14 Notwithstanding the defendant’s voluntary admission that he had been in possession of a gun at the time of his arrest, his subsequent confession to the murder presents a more complicated question. Notably, some time after the defendant’s admission to gun possession, the tone and tenor of the interview underwent a seismic shift, with the detectives now bringing enormous pressure to bear. To be sure, the once, early, and remarkable street bravado of this 17 year old withered under the sustained questioning and intense conditions of this recalibrated interrogation. The relentless and oft-shouted questions of the two seasoned detectives, their remarks that the defendant was “fucked,” that this was his last chance to help himself by confessing to the murder, and that he would not be relocating to New Orleans until he was 80 years old and finally sprung from confinement, the lack of food or an opportunity to use the bathroom, the defendant’s concern over being interrogated without a lawyer in a murder case, and his isolation from his mother despite more than a dozen pleas, while singly, neither improper nor unlawful, collectively, rendered the resulting murder confession involuntary. Although the Court is unable to point to a precise moment when the defendant’s constitutional rights were violated, and the existing case law is clear — a 17 year old suspect is not entitled to have a supportive adult present during questioning, see e.g. People v. Francis, 49 A.D.3d 552 (2d Dept. 2008); People v. Chung, 287 A.D.2d 575 (2d Dept. 2001); People v. Delgado, 269 A.D.2d 604 (2d Dept. 2000); People v. Marshall, 244 A.D.2d 508 (2d Dept. 1997); People v. Morales, 228 A.D.2d 525 (2d Dept. 1996), and a comment about not having a lawyer present is not an unequivocal invocation of counsel, see e.g. People v. Hicks, 69 N.Y.2d 969 (1987); People v. Pinkney, 48 A.D.3d 707 (2d Dept. 2008); People v. Jackson, 43 A.D.3d 1181 (2d Dept. 2007); People v. Lopez, 3 A.D.3d 455 (1st Dept. 2004); People v. Thompson, 271 A.d.2d 555 (2d Dept. 2000); People v. Cotton, 277 A.D.2d 461 (2d Dept. 2000); People v. Diaz, 161 A.D.2d 789 (2d Dept. 1990), the confluence of the foregoing pressures decidedly tips the scales of justice in the defendant’s favor. Indeed, the cunning maneuvers of two seasoned detectives, wielded against a 17 year old defendant begging for his mother, could not have yielded a voluntary confession under the facts and circumstances of this case. Accordingly, the portion of the defendant’s first video recorded post-Miranda statement following Coffey’s comment about the defendant going to prison for a very long time, followed almost immediately by the defendant’s impassioned plea — the first of many — to speak with his mother, must be suppressed. And, as the defendant’s second video recorded post-Miranda statement was not sufficiently attenuated, it, too, must be suppressed — in its entirety. A statement is attenuated when it follows a “definite, pronounced break” in interrogation, so that an individual is no longer under the influence of prior questioning. People v. Chapple, 38 NY2d 112, 115 (1975). Factors to consider in determining whether a statement is attenuated include: (1) the time elapsed between the statements; (2) whether there is a change in the location of the interrogation; (3) whether the same police personnel are present during each statement; and, (4) whether there is a change in the nature of the interrogation. See People v. Paulman, 5 N.Y.3d 122 (2005). Here, the second interview commenced less than two hours later in the same location — the 61st Precinct — and in the presence of the same interrogating detectives — Boyce and Coffey. Moreover, while Boyce, at the conclusion of the first statement informed the defendant that he had called his mother, there is no evidence that Boyce, who did not testify, did as he said. The Court, therefore, can not conclude that at the time of the second precinct interview, the defendant was no longer under the influence of the prior coercive interrogation. Accordingly, the defendant’s second post-Miranda video recorded statement must be suppressed. Conclusion The defendant’s Huntley motion is denied in part and granted in part, as detailed above. The remainder of the defendant’s motion is denied. This constitutes the Decision and Order of this Court. Dated: October 3, 2019 Brooklyn, New York
