DECISION AND ORDER On December 19, 2019, this Court conducted a combined Dunaway and Huntley hearing. Police Officer Sanjeeb Kissoondyal testified for the People. The defendant did not present any evidence. The Court heard oral argument from the parties. The defendant’s motion is granted in part and denied in part. The Court makes the following findings of fact and conclusions of law. Findings of Fact Police Officer Sanjeeb Kissoondyal, an Assistant Field Intelligence Officer with the Intelligence Bureau, testified that he has been employed by the New York City Police Department for approximately five years. In September of 2018, Kissoondyal was assigned to the 81st Precinct. At 2:13 a.m. on September 23, 2018, Kissoondyal received a radio call regarding an assault in progress at the corner of 96 Bainbridge Street in Brooklyn. Kissoondyal arrived at that location shortly thereafter and observed a large crowd gathered around a man lying on the ground, bleeding from his abdomen, and another man “walking fast” away from that crowd.1 Kissoondyal’s partner, Officer Donald Schumacher, immediately began rendering medical aid to the victim, while Kissoondyal focused on the fleeing defendant, whom the crowd pointed out, yelling “that’s him, he’s getting away…he did it.” From the victim’s side a woman wailed incessantly, “[he] got stabbed.” Kissoondyal followed the defendant and as he approached could see that the defendant’s hand was covered in blood, with more bloodstains on his sweatshirt. Kissoondyal instructed the defendant to stop — he did not, instead he shouted, look what they did to me, inter alia. As the defendant did not comply, Kissoondyal then directed him to turn around and show his hands. The defendant, in response, yelled, “you doing the wrong thing, I just called you all.” Kissoondyal, still concerned that the defendant, who was nervously pacing, had a weapon, asked “where’s the knife,” while patting the defendant down and subsequently placing him in handcuffs. The defendant, increasingly agitated, insisted that he did not have a knife and said those “niggas all tried to jump me,” referring to the gathered crowd. Kissoondyal then asked what happened and the defendant replied that he had gotten into a fight with the victim. At that point, Kissoondyal stopped speaking to the defendant and attempted to provide him with Miranda warnings, but the defendant would not let Kissoondyal speak, shouting over him, in substance, you cannot do that, I’m the one who called the police. Kissoondyal responded that he was simply trying to find out what had happened, and that the defendant, who continued to yell, needed to calm down. Instead, the still agitated defendant repeated that he was the one who had called police. At the same time, members of the crowd continued to shout back at the defendant while attempting to intercept Kissoondyal and his partner. In an attempt to calm the chaos and clarify what had taken place, Kissoondyal spoke to Ashanty Bingley, the victim’s aunt, who explained that the victim and the defendant had gotten into an argument. Bingley added that immediately after the victim had collapsed, the defendant went into his nearby residence and then came back out just as the officers arrived on the scene. She did not see what was used to “cut” the victim. While emergency medical personnel were treating the victim, and as the defendant maintained that it was he who was the real victim, Kissoondyal returned to the defendant and asked, in substance, what happened tonight? The defendant, whose mother was now standing next to him, replied that he was “told not to say anything.” Kissoondyal responded, “okay, that’s your right, that’s fine,” and ceased speaking to the defendant. Several minutes later, Kissoondyal and his partner obtained pedigree information from the defendant including his name, date of birth, and address. The defendant’s mother, still at his side, asked Kissoondyal what happened and Kissoondyal explained that he understood that the defendant had gotten into an argument with the victim, and that the victim had been “cut.”2 Conclusions of Law The Court fully credits the testimony of Police Officer Sanjeeb Kissoondyal. Indeed, Kissoondyal’s testimony was corroborated by the body camera recording that demonstrates his calm, professional manner in the face of an angry, uncooperative defendant, a screaming, agitated crowd, and a prone victim bleeding from his abdomen. The recording also shows the chaotic and volatile situation that Kissoondyal and his partner were tasked with quickly assessing and diffusing. 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, the information known to Police Officer Kissoondyal as he responded to a 911 call regarding an assault in progress, coupled with the information provided to him by multiple citizens, that the defendant, to whom those citizens were pointing as he attempted to flee, “did it” and was “getting away” and that the victim had been stabbed, combined with Kissoondyal’s own observations — the victim prone on the ground bleeding from an abdomen wound, the blood covering the defendant’s hand and sweatshirt — established probable cause for the defendant’s arrest. See People v. Heidt, 95 A.D.3d 1234 (2d Dept. 2012). That the defendant protested his innocence and proclaimed that he had been the one to call 911 did not vitiate the probable cause. See People v. Daye, 194 A.D.2d 339 (1st Dept. 1993). Indeed, a police officer need not conduct a “mini-trial” before making an arrest. People v. Finch, 23 N.Y.3d 408, 418 (2014) (internal citations omitted). Here, confronted with one man bleeding profusely from a wound to his abdomen, and another man — hand covered in blood and clad in a bloodied sweatshirt — identified as the one who “did it,” Kissoondyal followed the only logical and reasonable course of action, and placed the defendant under arrest. Huntley The defendant moves to suppress a series of statements made by him to Police Officer Kissoondyal on the street during the course of his apprehension and arrest. When Officer Kissoondyal first came in contact with the defendant, the defendant was shouting, look what they did to me, you are doing the wrong thing, I called 911. Those statements were unsolicited and spontaneous. Indeed, neither Kissoondyal or any other officer induced, provoked, or encouraged the defendant, who had not yet been taken into custody, to make the statements, see People v. Browne, 144 A.D.3d 834 (2d Dept. 2016); People v. Galarza, 159 A.D.3d 1584 (4th Dept. 2018), and the statements were not made in response to express questioning, or its functional equivalent. See People v. Ellis, 58 N.Y.2d 748 (1982); People v. Slattery, 147 A.D.3d 788 (2d Dept. 2017); People v. Powell, 125 A.D.3d 1010 (2d Dept. 2015). The defendant’s initial statements are, therefore, admissible. Then, while attempting to calm the agitated, uncooperative, pacing, bloody defendant, and to determine whether he, suspected of having just stabbed the victim minutes earlier, was armed, Kissoondyal asked the defendant, where’s the knife? The defendant responded that he did not have a knife and continued to speak, explaining, in substance, that the crowd had tried to jump him. Kissoondyal’s single question regarding the location of a weapon, posed to ensure his safety and the safety of his fellow officers as they responded to a volatile, chaotic, dynamic, and potentially dangerous situation, was permissible and prudent, and the defendant’s resulting statements admissible. See People v. Rapley, 292 A.D.2d 469 (2d Dept. 2002). So, too, Kissoondyal’s follow up question, what happened, in response to the defendant’s insistence that he had been the victim, was permissible. Indeed, one or two questions posed to clarify rapidly unfolding events does not constitute an interrogation requiring the administration of Miranda warnings. See People v. Maldonado, 184 A.D.2d 590 (2d Dept. 1992); see also People v. Valderas, 7 A.D.3d 265 (1st Dept. 2004). To be sure, Kissoondyal was duty bound to ascertain whether the individual he was taking into custody was the alleged bad actor or the victim. The defendant’s response, therefore, to Kissoondyal’s attempt to clarify the situation, that he had been in a fight with the victim, is admissible. Notwithstanding, the People are precluded from introducing evidence of the defendant’s response to Kissoondyal’s second attempt to clarify the situation, that he had been told not to say anything. Indeed, it is well-settled that the People may not use a defendant’s post-arrest invocation of silence at trial. See People v. Pavone, 26 N.Y.3d 629 (2015). Accordingly, the defendant’s motion to suppress his first three statements is denied.3 The defendant’s final statement, however, is precluded. Conclusion This constitutes the Decision and Order of this Court. Dated: January 10, 2020 Brooklyn, New York
