DECISION AND ORDER On July 16, 2019, this Court conducted a combined Huntley and Mapp hearing. Detective Anthony Santilli testified for the People. The defendant did not present any evidence. The Court heard oral argument from the parties. The defendant’s motion is denied. The Court makes the following findings of fact and conclusions of law. Findings of Fact Detective Anthony Santilli testified that he has been employed by the New York Police Department for approximately eleven years and is currently assigned to the Computer Crimes Squad. On August, 25, 2016, Santilli received information from the National Center for Missing and Exploited Children (hereinafter “NCMEC”), related to certain Flickr and Yahoo accounts that had been reported to NCMEC as having uploaded images that may have constituted child pornography.1 NCMEC provided Santilli with the user information associated with those accounts — Tim Beaver, Tim6_8@yahoo, Frank Beaver, frankbeaver914@yahoo, and tbyers68@icloud. Santilli issued subpoenas to the providers to obtain the IP addresses that those accounts had used to access the internet. Santilli then issued subpoenas for the subscriber information related to those IP addresses. Santilli learned that the IP addresses were associated with Tim Byers, 384 Neptune Avenue in Brooklyn and Mustard Seed, 2004 Mermaid Avenue, also in Brooklyn. On October 7, 2016, Santilli and his partner, Detective Josh Rivera, went to 384 Neptune Avenue to interview the residents, but found that no one was at home. Next, Santilli went to 2004 Mermaid Avenue — a deli, Mustard Seed, was located at that address. The manager of the deli, Carlton, informed Santilli that Tim Byers was the owner, and that he could reach Byers by phone.2 Carlton, then, called Byers and handed the phone to Santilli. Santilli identified himself, informed Byers that he wanted to speak with him, and asked if Byers could come to the deli. Santilli did not threaten Byers or make him any promises. Byers, who was cooperative but “concerned,” responded that he could not come to the deli and instead suggested that they come to his home at 3853 Laurel Avenue, Brooklyn. Shortly thereafter, Santilli arrived at the address that Byers had provided. There was a girl, approximately eight years old, playing outside of the location — a duplex. Santilli noticed that the girl looked like the girl depicted in one of the images provided to him by NCMEC. Santilli and his partner entered the duplex and went up the stairs to the second floor. Tim Byers3 and his wife, Lori, opened the door at the top of the stairs.4 Santilli and his partner, both with their badges visible, identified themselves and explained that they wanted to speak to the defendant in connection with an investigation. Santilli asked if they could speak to the defendant inside of his home, and the defendant agreed. The detectives did not threaten the defendant or his wife and did not make them any promises. Although the detectives were armed, neither drew their weapon. The detectives found themselves in a living room area and Santilli told the defendant that he thought it would be better if the detectives spoke to him alone, not in the presence of his wife and children. The defendant agreed, and his wife and children left the living room.5 Santilli again explained that the detectives were conducting an investigation and asked the defendant several general questions. The defendant explained that he worked at the deli, Mustard Seed, located at 2004 Mermaid Avenue. The defendant further stated that he and his family had previously lived at 385 Neptune Avenue. Santilli asked the defendant for his email address and the defendant provided tbyers68@icloud and Tim6_8@yahoo. The defendant, however, could not recall using frankbeaver914@yahoo, but indicated that it was possible that he had used that account. Santilli showed the defendant a redacted copy of the picture provided by NCMEC, with just the child’s face showing. The defendant identified the child in the photo as his daughter, Elizabeth. The defendant explained that he had taken nude photos of Elizabeth and his other children, as he was researching and experimenting with nudism. The defendant added that the photos, that did not depict sexual acts, were “legal.” The defendant explained that his wife was aware of the photos and his interest in nudism. The defendant indicated that he had taken the nude photos of his children with a camera, but that he had subsequently thrown away the memory card. The defendant then edified that he had actually taken the photos with his cell phone. Next, Santilli briefly spoke to the defendant’s visibly pregnant wife, outside of the defendant’s presence. Santilli then spoke to the defendant and his wife together, in the living room. Santilli explained that he would like to search their home for electronic devices and that he would like to do so with their consent. Santilli further explained that he would also like to search their electronic devices with their consent, for digital evidence, including pictures of nude children. He told the defendant and his wife that he wanted to be sure that the photos related to their experimentation with nudism and to ensure that “nothing else was going on.” Santilli informed the defendant and his wife that they were not required to consent and could, in fact, refuse to grant their consent. Santilli clarified that even if they decided not to consent, he might still be able to gain access to their devices by appearing before a judge to request the issuance of a search warrant. Santilli testified that he did not threaten the defendant or his wife and did not promise anything in exchange for their consent. The defendant and his wife consented both verbally and in writing. Santilli obtained a list of electronic devices that the defendant and his wife owned — a desktop computer, two cell phones, and two laptop computers, that were located at the deli. Santilli identified each of the devices on preprinted consent to search forms that he then handed to the defendant and his wife. He asked the defendant and his wife to review the forms and, if they consented to the searches that they had discussed, sign the forms.6 Rather than voucher the cell phone that belonged to the defendant’s wife, as she was pregnant and Santilli did not want to leave her without a means of communication, Santilli looked through her photographs and, finding no evidence of child pornography, returned the phone to her. Santilli then took the desktop computer from the living room and the defendant’s cell phone. The defendant’s wife agreed to accompany Santilli to the deli to retrieve the two laptop computers located there. When she, Santilli, and his partner left, the defendant remained at home with his children. Once at the deli, the defendant’s wife realized that one of her children’s iPads was also at the store. She, therefore, provided it to Santilli and when Santilli asked if he could look in it as well, she gave him permission. Santilli did not threaten the defendant’s wife or promise her anything in exchange for her consent to search the iPad. Santilli testified that a forensic examination of the devices uncovered photos of the defendant’s children with their genitals exposed. On October 17, 2016, late in the evening, the defendant and the defendant’s children were interviewed by the Administration for Children’s Services. The following day, October 18, 2016, Santilli learned that the defendant’s wife had given birth at Methodist Hospital. At approximately 7:00 p.m., Santilli and Rivera went to the hospital to speak with the defendant. Santilli told the defendant that he wanted to speak with him at the precinct, and the defendant, who was not handcuffed or otherwise restrained, agreed to accompany him to the 78th precinct — the precinct nearest the hospital. Santilli and his partner drove the defendant to the precinct. During the drive, the detectives did not threaten the defendant or make him any promises, and did not discuss the investigation with him. Once at the 78th precinct, the defendant was accompanied into an interview room equipped with video and audio recording equipment. The uncuffed defendant was seated comfortably in his wheelchair, wearing a western style hat. Present in the room were Santilli, Rivera, and the defendant. Prior to entering the interview room, Santilli and Rivera locked their service weapons in a safe. Detective Rivera provided the defendant with Miranda warnings. The defendant answered “yes” aloud to each question. When the defendant asked when he could stop answering questions, Rivera assured him that he could stop at any time. The defendant, therefore, agreed to speak with the detectives, but first requested something to drink. The defendant also indicated that although he had taken his medication earlier, he would need to take another dose shortly. Rivera, therefore, left the room to get the defendant something to drink and to inquire of a supervisor about the defendant’s medication. While Rivera was gone, Santilli and the defendant engaged in small talk about the weather and the hat that the defendant was wearing. Rivera returned a few minutes later with a bottle of water for the defendant. The detectives began to question the defendant, who asked why he was being questioned as he had so far been cooperative and had even given the detectives his electronic devices. The defendant was alert and oriented and freely engaged in a conversation with the detectives. Within a few minutes, however, the defendant indicated that he wanted to speak to an attorney. The detectives, therefore, immediately ended the interview.7 Sometime later, as the detectives were not permitted to administer the medication that the defendant had brought with him, an ambulance was called to take him to the hospital for that purpose. Conclusions of Law The Court fully credits the testimony of Detective Anthony Santilli. Huntley Statement at the Defendant’s Home The defendant moves to suppress a statement made by him to Detective Santilli inside of his home. As the defendant was not in custody and the statement was voluntary, the motion to suppress is denied. The uncontradicted hearing testimony establishes that the defendant, who was interviewed in his own home, was not in custody when he agreed to speak with Detective Santilli. See generally People v. Zelaya, 170 A.D.3d 1206 (2d Dept. 2019); People v. Marcelle, 120 A.D.3d 833 (2d Dept. 2014). Indeed, the defendant was interviewed at home where he, his wife, and his children, moved about freely. See People v. Thomas, 124 A.D.3d 56 (1st Dept. 2014); People v. Radellant, 105 A.D.3d 556 (1st Dept. 2013). Additionally, when Santilli and his partner accompanied the defendant’s wife to the deli that the defendant owned, the defendant remained in his home with his children. Moreover, at no time did the detectives threaten or attempt to coerce the defendant into making the statement. See People v. Clarke, 157 A.D.3d 616 (1st Dept. 2018). Accordingly, the motion to suppress is denied. Recorded Statement at the 78th Precinct Additionally, the defendant moves to suppress the recorded statement made by him to Detective Santilli at the 78th Precinct. As the defendant was provided with Miranda warnings and expressly waived his rights, the motion is denied. The uncontradicted hearing testimony, together with the video recorded statement, establishes that the defendant was adequately advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966); People v. Anderson, 146 A.D.2d 638 (2d Dept. 1989). The uncontradicted hearing testimony further establishes that the defendant’s waiver of those rights was knowing, voluntary and intelligent. See People v. Warren, 2 A.D.3d 1317 (4th Dept. 2003); People v. Rivas, 175 A.D.2d 186 (2d Dept. 1991); People v. Stewart, 159 A.D.2d 247 (1st Dept. 1990). Additionally, there is no evidence that the defendant was threatened, or promised anything in exchange for his statement. Indeed, the defendant engaged in small talk with Santilli, an exceedingly soft-spoken individual, and was quickly provided with something to drink upon his request. And, just minutes later, when the defendant requested the opportunity to speak with an attorney, all questioning ceased. Accordingly, the defendant’s motion to suppress is denied. Mapp The defendant moves to suppress physical evidence — assorted electronic devices — recovered from his home and place of business. As the People have met their burden of demonstrating voluntary consent, the motion is denied. The uncontradicted hearing evidence establishes that the defendant and his wife provided voluntary consent to search their home for electronic devices and, once obtained, to search the content of each device. Indeed, the defendant was cooperative throughout his interaction with Santilli and his partner — speaking to Santilli over the phone, providing his home address, inviting the detectives into his home, agreeing to speak to the detectives outside the presence of his wife and kids, and freely providing his email and other account information. Moreover, the detectives did not threaten or coerce the defendant and his wife, and even informed them that they did not have to consent. See People v. Yuruckso, 297 A.D.2d 299 (2d Dept. 2002). To be sure, the detectives provided pre-printed consent forms and asked the defendant and his wife to review those forms before signing the forms, to memorialize their consent. Those forms additionally informed the defendant and his wife that they were not obligated to give consent. See People v. Melo, 98 A.D.2d 754 (2d Dept. 1983). Not only did the defendant and his wife expressly consent, the defendant’s wife accompanied the detectives to the defendant’s place of business — a deli that they owned — to obtain the remainder of their electronic devices. And, when the defendant’s wife realized that they had neglected to include their child’s iPad on the list of their devices, she voluntarily handed that device over as well. See generally People v. Jean, 13 A.D.3d 466 (2d Dept. 2004). Finally, when interviewed several days later at the police precinct, the defendant reiterated that he had been cooperative and had voluntarily provided his electronic devices. Accordingly, the defendant’s motion to suppress is denied. Conclusion This constitutes the Decision and Order of this Court. Dated: July 24, 2019 Brooklyn, New York
