DECISION AND ORDER The defendant is charged with Attempted Murder in the Second Degree and other related charges stemming from an incident that allegedly occurred on April 22, 2019. He now moves to suppress evidence, namely identifications and statements, as fruits of an unlawful seizure. This court conducted a combined Dunaway/Wade/Huntley hearing on February 13, 2020. The People presented two witnesses. The defendant did not present any witnesses. After both sides rested, the court heard oral arguments. I make the following findings of fact and conclusions of law: FINDINGS OF FACT Police Officer Charles Goff has been with the New York City Police Department (NYPD) for four years (Hearing Transcript [Tr] at 12). He testified credibly that on April 22, 2019, at approximately 5:30 pm, he was on patrol when he received a radio transmission for a person shot at Howard Avenue and Marion Street (Tr at 12-13). Officer Goff was equipped with a body camera that captured the events of his involvement, which was admitted into evidence as People’s #1. Officer Goff responded to that location and observed a man, later identified as James Holloman, leaning against a fence bleeding, and a woman, later identified as Octavia Anderson, who appeared to be with him (Tr at 13-14). Officer Goff was informed by Ms. Anderson that the person who shot Mr. Holloman was at 278 Marion Street, which is approximately one third of a block away from the location (Tr at 14). Officer Goff and his partner went to 278 Marion Street and started to walk up the steps to the building when Ms. Anderson, who had followed the officers to the location, stated “that’s him with the hat on,” and pointed to an individual, later identified as the defendant, standing on the sidewalk approximately two houses down (Tr at 14-16, 22, People’s #1). With his gun drawn, Officer Goff ordered the defendant to keep his hands visible and then handcuffed him (Tr at 16). During this time, the defendant stated, in sum and substance, “why are you arresting me, they were the ones shooting at me” (Tr at 16-17). No questions were asked of the defendant (Tr at 17). The defendant was searched and no firearm or ammunition were recovered (Tr at 23). Officer Goff’s Sergeant asked the defendant “you said he was shooting at you?” to which the defendant responded, “yeah” (People’s #1). The Sergeant asked where the shooter’s firearm was to which the defendant responded, “I don’t know where his firearm is at, I ran” (People’s #1). The Sergeant asked where this happened and the defendant stated that it took place down the block across the street (People’s #1). Officer Goff then escorted the defendant into a police car at which point the defendant stated that they lived in the building for 47 years (Tr at 17). The defendant was transported to the 81st Precinct Detective Squad (Tr at 17-18). Detective Tomas Reyes has been with the NYPD for approximately 16 years (Tr at 27). He testified credibly that on April 22, 2019, at approximately 5:30 pm, he was requested to respond to Howard Avenue and Marion Street (Tr at 29). When he arrived, he observed numerous police officers and an individual, later identified as Mr. Holloman, in the back of an ambulance (Tr at 29-30). Detective Reyes spoke to Mr. Holloman, who informed him that he and an individual named Beaver were at another location and got into an argument that led to a small fight (Tr at 30). Mr. Holloman returned to his apartment on Marion Street where he and Beaver got into another fight and Beaver shot him (Tr at 30). Detective Reyes was informed that there was a possible suspect at 278 Marion Street and he requested that the suspect be brought to the ambulance to do a show-up (Tr at 31). The suspect, later identified as the defendant, was brought to the location of the ambulance in the back of a police car (Tr at 31-33). The police car stopped approximately one car length away from the ambulance and the defendant, in handcuffs, was asked to step out (Tr at 31-32, 40). Mr. Holloman, looking through a window in the ambulance, stated “that’s Beaver” (Tr at 31, 40, 42). The defendant was then transported to the 81st Precinct Detective Squad where he was interviewed by Detective Reyes at approximately 11:00 pm (Tr at 33). Detective Reyes read the defendant his Miranda warnings prior to interviewing him (Tr at 33). A copy of the Miranda warnings was received into evidence as People’s #2. After each Miranda warning the defendant was asked whether he understood and he verbally responded that he did and agreed to speak with Detective Reyes (Tr at 35). No threats or promises were made to the defendant in exchange for his statement (Tr at 35). A videotape of the interview was admitted into evidence as People’s #3. CONCLUSIONS OF LAW The Dunaway Portion At a suppression hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v. Hernandez, 40 AD3d 777, 778 [2nd Dept 2007]; People v. Moses, 32 AD3d 866, 868 [2nd Dept 2006]; see also People v. Wise, 46 NY2d 321, 329 [1978]; People v. Whitehurst, 25 NY2d 389, 391 [1969]). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v. DeBour, 40 NY2d 210, 215 [1976]). If the People satisfy their initial burden, the defendant “bears the ultimate burden of proving that the evidence should not be used against him” (People v. Berrios, 28 NY2d 361, 367 [1971]). Here, upon responding to the location for a person shot, Officer Goff observed two individuals: Mr. Holloman who was bleeding and Ms. Anderson who appeared to be with Mr. Holloman. While on scene, Officer Goff was informed that the suspect was at 278 Marion Street. He went to 278 Marion Street and Ms. Anderson, who had followed the police, spontaneously pointed out the defendant as the perpetrator and stated, “that’s him with the hat on.” It is well-settled that the statement of an identified citizen complainant is sufficient to establish probable cause for an arrest (People v. Read, 74 AD3d 1245, 1246 [2nd Dept 2010]; People v. Boykin, 187 AD2d 661, 662 [2nd Dept 1992]). Accordingly, the defendant’s motion to suppress evidence as the fruit of an unlawful arrest is denied. The Wade Portion At a Wade hearing, the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure (People v. Coleman, 73 AD3d 1200, 1203 [2nd Dept 2010], citing People v. Chipp, 75 NY2d 327, 335 [1990]). Once the People have established this, “it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive” (id.). In the instant case, Officer Goff responded to a radio transmission of a person shot. After speaking with his fellow officers, Officer Goff then drove to 278 Marion Street, the location where the suspect was. Once Officer Goff reached the location, Ms. Anderson, without any prompting, pointed out the defendant. It is clear from the record before this court that the point-out identification of the defendant by Ms. Anderson was not the product of a police-arranged procedure. Here both the procedure and the identification were “witness-initiated” (People v. Dixon, 85 NY2d 218, 223 [1995]), in that Ms. Anderson, of her own accord, followed the officers to 278 Marion Street and then spontaneously identified the defendant as the perpetrator of the crime. An identification is not police arranged when it “results from mere happenstance” (id.). Accordingly, the defendant’s motion to suppress this point out identification is denied. Turning to the identification by Mr. Holloman, “[s]how-up identifications, by their nature suggestive, are strongly disfavored but are permissible if exigent circumstances require immediate identification, or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately” (People v. Riley, 70 NY2d 523, 529 [1987] [internal citations omitted]). A show-up must be examined to determine if it was conducted as part of an “unbroken chain of events” or part of an ongoing investigation (People v. Duuvon, 77 NY2d 541, 544-545 [1991] [show-up found permissible because it was "one unbroken chain of events --- crime, escape, pursuit, apprehension and identifications --- all within minutes and within a New York City block and a half"]). To pass muster, the identification must also be made in close geographic and temporal proximity to the crime (People v. Ortiz, 90 NY2d 533, 537 [1997]). Here, Officer Goff received a radio run regarding a shooting incident at Marion Street and Howard Avenue and responded within 1-2 minutes. A review of the body camera video entered into evidence as People’s #1 shows that the officer arrived on scene as 5:28:27 PM. He leaves Marion and Howard at 5:29:40 PM and arrives at 278 Marion Street at 5:30:36 PM. The defendant is stopped at 5:30:52 PM and at 5:41:40 PM, he is driven up the block for the show-up procedure. The time that elapsed from Officer Goff’s arrival on the scene to the show-up being conducted was 13 minutes and 13 seconds. 10 minutes elapsed from the time the officers responded to the scene and the time the defendant was stopped. The People have demonstrated that the police action in conducting the show-up was reasonable as it was done within close geographic and temporal proximity to the crime (People v. Brisco, 99 NY2d 596, 597 [2003] [show-up procedure conducted at scene of crime, within an hour of crime and in context of continuous, ongoing investigation found reasonable]; People v. Huerta, 141 AD3d 602, 603 [2nd Dept 2016] [show-up conducted within 30 minutes of the crime and within three to four blocks of the crime scene was permissible]; People v. Jerry, 126 AD3d 1001, 1002 [2nd Dept 2015] [show-up conducted within 40 minutes of the crime was permissible]; People v. Greene, 39 AD3d 268, 269-70 [1st Dept 2007] [show-up conducted two miles from the scene of the crime was permissible given that the perpetrator fled the scene by train and the identification took place at the location of the arrest]). Standing alone, the fact that the defendant was in the presence of police officers and handcuffed does not render the show-up identification impermissibly suggestive (see People v. Gonzalez, 57 AD3d 560, 561 [2nd Dept 2008] ["defendant handcuffed and standing in front of a police car while in the presence of uniformed police officers does not render the show-up unduly suggestive"]; People v. Jay, 41 AD3d 615, 615 [2nd Dept 2007] ["the identification procedure was not rendered unduly suggestive merely because the defendant was handcuffed and in the presence of uniformed police officers when he was displayed to the complainant"]; People v. Loo, 14 AD3d 716, 716 [2nd Dept 2005] ["show-up identification, which occurred within four blocks of a burglary of one of the complainant's homes, within an hour of that burglary, and within minutes of the defendant's arrest, was not unduly suggestive even though the defendant was handcuffed and in the presence of uniformed officers"]; People v. McNeil, 39 AD3d 206, 209 [1st Dept 2007] [show-up conducted in close temporal and spatial proximity to crime not rendered impermissibly suggestive by fact that defendant was cuffed, surrounded by officers including one holding his arm, in vicinity of several police cars with a light shining on him]). The People have established that the show-up procedure conducted herein was part of an unbroken chain of events conducted within close geographic and temporal proximity to the crime. As such, they have met their threshold burden of showing the lack of any undue suggestiveness. Accordingly, the defendant’s motion to suppress the show-up identification made by Mr. Holloman is denied. The Huntley Portion The People have the burden of proving beyond a reasonable doubt that the statements made by the defendant were voluntary. It is manifest that a defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v. Arizona, 384 US 436 [1966]). “Both the elements of police custody and police interrogation must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda” (People v. Huffman, 41 NY2d 29, 33 [1976]). Here, the defendant does not contest the voluntariness of any of the statements captured on Officer Goff’s body camera. In any event, the statements made while being handcuffed and transported to the police car are admissible as spontaneous statements.”Volunteered statements…’made without apparent external cause’ are admissible even if the defendant was in custody (see People v. Tavares-Nunez, 87 AD3d 1171, 1172 [2nd Dept 2011]). Here, upon handcuffing the defendant, the defendant stated that someone else was shooting at him. Additionally, when Officer Goff started to bring the defendant to the police car, the defendant gestured towards Ms. Anderson and stated that she was the one he was telling the police about and that he has been in the building for 47 years. The record before the court establishes that the defendant’s statements were spontaneous and not the result of inducement, provocation, or encouragement (People v. Grimaldi, 52 NY2d 611, 617 [1981]; People v. Maerling, 46 NY2d 289, 302-303 [1978]). Accordingly, the defendant’s motion to suppress these statements on Huntley grounds is denied. Turning to the statements made in response to the Sergeant’s questions, they are also admissible. It is clear that at this point the defendant is in custody. The question remaining is whether the defendant was subjected to interrogation such that Miranda rights were required. It is well-established that “[c]ustodial admissions are not suppressible unless produced by a process of interrogation designed to elicit statements from the defendant” (Huffman, 41 NY2d at 33). In this case, the police were investigating a person shot. When the police arrested the defendant, he stated that he was the one being shot at. The Sergeant then asked, “you said he was shooting at you?” to which the defendant responded, “yeah.” The Sergeant then asked where the shooter’s firearm was to which the defendant responded, “I don’t know where his firearm is at, I ran.” The Sergeant then asked where this happened and the defendant stated that it took place down the block across the street. These questions were clearly investigatory questions designed to clarify the nature of the situation that the officers were being confronted with and were not the product of interrogation (see id. at 34; People v. Brown, 23 AD3d 1090, 1092 [4th Dept 2005]). Accordingly, the defendant’s motion to suppress these statements on Huntley grounds is likewise denied. The defendant also does not contest the admissibility of the videotaped statement. Here, there is no question that at the time of the statement, the defendant was in custody. However, it is also clear from the record before this court that the defendant was orally given his Miranda warnings at the start of the interview by Detective Reyes and that he acknowledged that he understood each right by answering “I understand” after each right was read to him. The defendant then agreed to answer questions and spoke to the Detective for approximately one hour. Here, the People have proven beyond a reasonable doubt that the defendant’s statement was made after he knowingly, intelligently, and voluntarily waived his Miranda rights (see People v. Dunwoody, 89 AD2d 569, 570-1 [2nd Dept 1982] [defendant's affirmative response to final Miranda question "constituted a sufficient, expressly stated waiver of his constitutional rights…[and] must be evaluated in light of the context of the question, which called for an acknowledgment of his understanding of his constitutional rights,…and having such understanding, to willingly submit to interrogation”]). Accordingly, the defendant’s motion to suppress his videotaped statement on Huntley grounds is denied. This constitutes the Decision and Order of the court. Dated: March 17, 2020
