People v. Rodriguez

DECISION AND ORDER   Defendant, Pedro Rodriguez, is charged with one count of Rape in the First Degree [Penal Law §130.35(1)]. This court conducted a Dunaway/Huntley/Wade/ Mapp hearing on February 11th and 13th, 2020. The People presented the testimony of Detectives (hereinafter “Det.”) Ivane Epitashvili and Rene Soto, both of the New York City Police Department (hereinafter “N.Y.P.D.”). Defendant did not present any witnesses. Additional oral argument was heard on March 3, 2020, and written arguments were received on March 10, 2020. On March 16, 2020, due to the coronavirus pandemic, the courthouse closed for in-person appearances and the case was administratively adjourned several times to May 12, 2020, June 23, 2020, August 4, 2020, and then September 15, 2020 for Defendant’s first in-person appearance since the pandemic began.¹ This Court, having had the unique opportunity to view the People’s witnesses as they testified, to observe their demeanor and to hear their testimony, credits the testimony of the People’s witnesses. The following sets forth this Court’s findings of fact and conclusions of law. Findings of Fact Det. Epitashvili has been a member of the NYPD for seven years. He has conducted over one hundred arrests and assisted in hundreds of others. Det. Soto has been a member of the NYPD for twenty years. No testimony was offered regarding the number of his career arrests. On August 25, 2018, Det. Epitashvili and Det. Soto were assigned to the Manhattan Special Victims Squad. On that date, at approximately 2:30 P.M., Det. Soto was introduced to a complainant who reported that she had been raped at approximately 1:25 that morning on the Washington Bridge. The bridge, which is located on 181st Street in New York County, connects Manhattan with Bronx County. The complainant was interviewed by another detective, Det. Shaw, to whom she provided an initial description of the perpetrator. On August 28, 2018, three days later, Det. Soto interviewed the complainant further and was informed that the assailant was a Hispanic male, between eighteen and twenty-one years of age, with light skin, wearing a baseball cap and a dark t-shirt, and with his hair in a ponytail or bun. Det. Soto and his colleagues subsequently canvassed the reported location of the alleged crime in hopes of locating witnesses and obtaining video footage. They were able to retrieve video footage of the complainant walking onto one side of the bridge prior to the incident, the suspect walking onto the opposite side of the bridge before the alleged incident, and of the suspect running off the bridge after the incident. Video of the actual attack was not available. Screenshots of the suspect were captured from the video footage. They depicted an individual wearing a black Chicago Bulls cap, black jeans, and a shirt with a logo on the back reading “Luigi Snack.” Copies of the video screen shots were introduced into evidence as People’s Exhibits #11a, 11b, and 11c. Det. Epitashvili testified that he and Det. Ulan learned that “Luigi Snack” was an eatery located at 191 East 167th Street in Bronx County. They visited the location on September 7, 2018, at approximately 2:00 P.M. When they arrived, they observed an individual matching the suspect’s description outside the restaurant. He was kneeling and appeared to be working on a motorbike. The young Hispanic male was wearing a black t-shirt and a black Chicago Bulls cap, and was later identified as Defendant Pedro Rodriguez. Det. Ulan approached Defendant and asked for identification. Det. Epitashvili did not recall whether Defendant actually produced any. Det. Epitashvili remained outside with Defendant, while Det. Ulan entered the premises, spoke to the owner, and viewed video surveillance footage of the restaurant from the night of the incident. A copy of a photo taken by Det. Ulan, of Defendant and Det. Epitashvili standing in front of the restaurant, was accepted into evidence as People’s Exhibit #2. While Det. Ulan was inside Luigi Snack, Defendant asked Det. Epitashvili “what [was] going on.” The detective responded that they were “investigating an attack.” No other conversation or interaction ensued, until Det. Ulan exited the restaurant and asked Defendant to accompany the detectives to the precinct. Det. Epitashvili testified that he did not remember the exact words Det. Ulan used. Defendant agreed to go to the precinct and was escorted, without handcuffs, to the rear seat of the detectives’ unmarked police vehicle. No guns were drawn at any time. A copy of a photo taken by Det. Ulan of Defendant seated in the rear of the police vehicle, and a copy of a still photo (from video footage) of Defendant at Luigi Snack the night of the incident, were accepted into evidence as People’s Exhibit #3 (both photos were copied on the same sheet of paper). Defendant was transported to the Manhattan Special Victims Squad (hereinafter referred to as “the Squad”), located inside the PSA-5 Precinct in New York County. There was no conversation between the detectives and Defendant during the approximately thirty-minute ride to the Squad. Upon arriving at 2:30 P.M., Defendant was brought into an interview room and told that the detectives were waiting for Det. Soto, who was off duty, to arrive. Defendant was not restrained, however, the door to the interview room was locked. Approximately thirty minutes later, Defendant knocked on the door and asked Det. Epitashvili for water, which was provided. Det. Soto had been informed of Defendant’s apprehension and been provided copies of the photos in People’s Exhibits #2 and #3. He arrived at the Squad at approximately 4:00 P.M. and introduced himself to Defendant. He asked Defendant if he needed any food or beverage, and told Defendant that the detectives would be interviewing him. At approximately 5:19 P.M., Det. Ulan. and Det. Soto, who is fluent in Spanish and English, escorted Defendant to an interrogation room. A video recording of the interrogation, lasting approximately two hours and eight minutes, was admitted into evidence as People’s Exhibit #4 and played in open court. In the video, Defendant is seen seated at a table across from the detectives. Det. Ulan conducted the interview in English, and Det. Soto interpreted in Spanish. Defendant was asked a series of questions before being advised of his Miranda warnings. Specifically, Defendant was asked the following questions before Miranda warnings: his name; his age and date of birth; his address; his proficiency with the English language; his username on Facebook; his place of employment, including the address, his duties, his boss’s name, how long he had worked there, what days and hours he worked, and how much he was paid; who did he live with, his mother’s name and phone number, the numbers for his stepfather and brothers’ cellphones; what model phone he owned, the name of his cellular carrier, and the password to his cellphone, when and how did he pay his phone bill; whether he had a girlfriend, her name, where she lived, how they met given that she lives in New Jersey and he lives in the Bronx, her phone number, when and where he last saw her, how did she get to his house; and whether he had any tattoos other than the one on his left wrist. He was also questioned about his missing teeth; his highest level of education; where he was born, how long he had been in the United States, the address of his previous residence; when was the last time he had seen his mother; his immigration status; whether he had taken any drugs, alcohol or medications that day, whether he was sick or injured; whether he suffered from any mental illness; and, finally, whether he could read and write in Spanish. This round of questioning lasted approximately fifteen minutes. After answering the questions, Defendant was thanked for his cooperation and told that the detectives would now speak to him about the night of the alleged incident. Defendant was then read his Miranda rights, in Spanish. After each warning was recited, Defendant was asked if he understood and replied, “Yes.” After the last warning, when asked if he was willing to answer questions, Defendant replied, “Yes, okay, yes.” The interrogation began with questions about Defendant’s job at Luigi Snack and his work shirt, which Defendant described and stated was dirty and at his home. The detectives asked for permission to retrieve the shirt from his home and Defendant agreed. He signed a consent form which was introduced into evidence as People’s Exhibit #8. Defendant was then shown one of the video stills of the suspect on the bridge. Defendant initially denied recognizing the individual, but later admitted it was, in fact, him. He signed his name on the photos under the date, time, and “THIS IS ME” written in English by Det. Ulan. The signed photo was introduced into evidence as Exhibits #11a,b,c. Defendant was shown a photo of the complainant which had been taken at the Squad on August 25, 2018. He stated he did not recognize the complainant. Det. Soto then showed him a larger photograph of the complainant in which a large distinctive tattoo was visible on her left leg. Defendant stated that he recognized the tattoo. The photos were both introduced into evidence as People’s Exhibits #5 and #6. Defendant then asked if he could call his mother and questioned what was going to happen. He was told that everything discussed in that room would remain in the room, and that he would soon be allowed to make the call. Defendant offered that he was addicted to Percocet and Oxycodone. He explained that the pills make him “crazy, and dizzy, and not aware of himself — I begin to walk, run and talk a lot.” The detectives told Defendant that they were not there to arrest him for drug use. Defendant also discussed his pregnant girlfriend and the stress of needing somewhere to live with her. Defendant was asked what happened on the bridge that night and why he had run away. He stated that on August 25th, he took four pills, stopped a young lady on the bridge, and asked for her phone number. He remembered noticing a tattoo on her leg. He admitted that he grabbed her hand and that she yelled at him in English. Defendant asked her why she was yelling, then walked away fast, and subsequently ran off. However, Defendant eventually conceded that he had sexual relations with the woman, but claimed that the victim had thrown herself on the ground and removed her own pants. He offered that he did not have a knife, or any weapon, and had not threatened her. He agreed to submit a DNA sample and signed a consent form, which was introduced into evidence as People’s Exhibit #9. He then swabbed his own cheek for DNA. Defendant asked again if he was going to be arrested and was told to “calm down, these are only questions, let’s get through the interview.” He requested to call his mother again and was told “let’s finish this first.” After approximately ninety minutes of questioning, the detectives exited the room and left Defendant alone for a brief break. The video shows Defendant sobbing, pacing, and talking to himself. After the break, he was escorted to the bathroom by Det. Ulan. He was then brought back to the interrogation room and informed that he would be arrested and that the detectives would discuss his situation favorably with the [Assistant] District Attorney. Later that evening, Det. Soto initiated a lineup at the Manhattan Special Victim Squad. As the “lineup administrator,” Det Soto was responsible for preparing the lineup paperwork, which consisted of the Lineup Pre-viewing Instructions to Witness Report, the Lineup Information Report, and the Lineup Viewing Report, collectively admitted into evidence as People’s Exhibit #12. Defendant was permitted to pick his position in the lineup, and he chose position number “2.” The security officer, Det. Conway, took note of Defendant’s appearance and selected four fillers to participate in the lineup. There was no testimony regarding from where specifically the fillers were selected, but they were characterized as “members of service.” They were held in a separate room from Defendant prior to the lineup. The fillers were all light-skinned Hispanic males, and all but one, seemingly close in age to Defendant. Defendant, and each of the fillers, wore a black baseball cap backwards. Defendant and all but one of the fillers wore black t-shirts or shirts. A sheet was placed over the legs and torso of all five men and their position numbers were displayed on their chests. The lineup was memorialized in a photo, admitted into evidence as People’s Exhibit #13. Det. Soto contacted the complainant and requested that she come to the squad to view the lineup. When she and her mother arrived at PSA-5, Det. Soto escorted the complainant inside through a rear door and up a staircase to the Squad area and the lineup room. Also present in the room was Lieutenant Marange. Det. Conway stood inside the lineup room for security. Det. Soto informed the complainant that she was about to view a lineup as part of an ongoing investigation into the crime that allegedly occurred on the Washington Bridge on August 25th, 2018. The complainant was told that she could have the lineup audio-recorded if she wished, but she declined. Det. Soto instructed the complainant that she would be viewing approximately six people² holding a number, through a one-way mirror, and that the people would not be able to see her. The complainant was told to take as much time as necessary, and that the perpetrator may or may not be among the six people in the lineup. Det. Soto also told her that the individuals present may not appear exactly as they did on the date of the incident because features such as head and facial hair were subject to change. Det. Soto further instructed the complainant that she should not assume that he, as the investigator, knew who the perpetrator was and that she should not ask him or anyone else in the room for guidance. She was told that members of the lineup could be asked to speak, move, or change clothing, but that if one lineup member was asked to do so, then all of the lineup members would be asked to do the same. The complainant was also told that after she had an opportunity to view the lineup, she would be asked four specific questions: Do you recognize anyone? If so, what number person do you recognize? From where do you recognize that person? And if you recognize someone, you will be asked to describe, in your own words, how sure you are, without using numbers or percentages. Finally, the complainant was informed that follow-up questions might be asked, and that she must not discuss what was said or observed during the procedure with anyone, regardless of whether she actually made an identification. After the complainant took a few minutes to review the lineup, Det. Soto asked her if she recognized anyone, and she replied “yes.” When asked “what is the number of the person you recognize,” the complainant replied, “number two.” Det. Soto asked her “from where do you recognize that person,” and she replied “from the bridge, from the incident.” The complainant’s answers were memorialized in the Lineup Viewing Report, which indicates that at 10:15 p.m. on September 7th, 2018, a number “2″ was entered in the Confidence Statement portion of the Lineup Viewing Report, along with “I am certain”. Both the complainant and Det. Soto signed the report.³ Contentions of the Parties Defendant argues that he was arrested outside of his place of employment without probable cause. He concedes that the encounter commenced as a proper Level II request for identification under the standard articulated in People v. DeBour, 40 N.Y.2d 210 (1976), but argues that being transport to the precinct and placed in a locked interview room for almost three hours awaiting Det. Soto’s arrival effectively constituted an arrest without probable cause. Defendant maintains that a reasonable person in his situation would have believed that he was not free to leave and that he was under arrest. He claims that there were no developments in the three hours he waited to be interviewed which would have elevated the level of suspicion and that no additional investigative steps had been taken during that time. Therefore, whatever level of suspicion the detectives had when they initially approached him remained the same level of suspicion they had after he had been in the precinct for three hours. Defendant maintains that his detention was indistinguishable from a traditional arrest, and that all evidence obtained pursuant to the illegal arrest should be suppressed. Defendant also maintains that the physical description provided by the complainant was vague and could match many young men in the Bronx. He claims there was no testimony that the video surveillance footage was actually shown to the complainant and that there was no testimony explaining why the detectives believed he was the perpetrator. Defendant further argues that his statements made during the initial portion of the recorded custodial interrogation must be suppressed because they were obtained in violation of his Miranda rights. Defendant concedes that some of the questions sought routine, pedigree information, but that others exceeded that scope and constituted interrogation.⁴ Defendant further argues that the recorded statement which followed his waiver of Miranda must be suppressed because it was tainted by the unlawful interrogation which preceded it. Defendant notes that the same detectives conducted the pre-and post-Miranda questioning, following the same format with Det. Soto interpreting, in the same room, with no break between the two phases of questioning. Therefore, the post-Miranda statements were not attenuated and constitute the fruit of the illegal questioning. Defendant further argues that his entire statement was involuntary and that the waiver of Miranda was invalid because the detectives failed to investigate his mental state after he disclosed that he was addicted to opiates. Defendant claims that doubt as to his mental state taints the voluntariness of the consent forms he signed. Defendant posits that he was in custody and illegally interrogated when he signed the consent forms, and therefore, evidence obtained pursuant to the signed consents should be suppressed as the fruit of his illegally obtained statement. He also maintains that false promises such as this is “just between us” and “nothing said here will leave this room,” affected the voluntariness of his statement. As for the lineup, Defendant argues that it was unduly suggestive and therefore unreliable. The People argue that, although the detectives had probable cause to arrest Defendant when they asked him to come to the Squad, he was not in fact under arrest at that time. The People claim that Defendant consented to accompany them, agreed to wait for Det. Soto to arrive for questioning, and never asked to leave or questioned the length of the wait. Essentially, the People maintain that Defendant went to the precinct and remained there for questioning voluntarily. They further maintain that the fact that the interrogation room was locked is of no moment, and would only have become an issue if Defendant had attempted to, or asked to leave. The People also argue that Defendant’s statement was the product of a voluntary waiver of his Miranda rights, and that the questions preceding the Miranda warnings were purely pedigree in nature. As for the consent forms that Defendant signed, the People claim that Defendant signed them voluntarily. They maintain that Defendant agreed to have the police retrieve his work shirt from his home, and performed his own cheek swab. The People also contend that the lineup was properly conducted, and not unduly suggestive. Finally, the People argue that the photo of the lineup “speaks for itself,” and demonstrates that all four fillers fit the same general description of Defendant, as they were similar in age, height, and weight. Conclusions of Law Dunaway: At a Dunaway hearing, the People have the burden of going forward in the first instance with credible evidence establishing the legality of police conduct, and that the arrest of the defendant was supported by probable cause. Dunaway v. New York, 442 U.S. 200 (1979). See also People v. Dodt, 61 N.Y.2d 408, 415 (1984); People v. Berrios, 28 N.Y.2d 361 (1971). To satisfy its burden, the prosecution must present credible testimony. People v. Carmona, 233 A.D.2d 142 (1st Dept. 1996); People v. Quinones, 61 A.D.2d 765 (1st Dept. 1978). Once the People have met their initial burden, the defendant bears the ultimate burden of establishing the illegality of the police conduct by a fair preponderance of the evidence. Berrios, supra, at 367; People v. Pettinato, 69 N.Y.2d 653, 654 (1986); People v. DiStefano, 38 N.Y.2d 640, 652 (1976). Probable cause “does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been…committed” by the person arrested. See People v. Shulman, 6 N.Y.3d 1, 25-26 (2005), cert. denied 547 U.S. 1043 (2006), quoting People v. Bigelow, 66 N.Y.2d 417, 423 (1985); People v. Graham, 211 A.D.2d 55, 58 (1st Dept. 1995), app. denied 86 N.Y.2d 795 (1995). The “inquiry is not as to the defendant’s guilt but, as to the sufficiency for arrest purposes, of the grounds for the arresting officer’s belief that [the] defendant was guilty.” See Shulman, supra at 26, quoting People v. Coffey, 12 N.Y.2d 443, 452 (1963), cert. denied 376 U.S. 916 (1964). “[I]t need merely appear more probable than not that a crime has taken place and that the one arrested is the perpetrator.” See People v. Hill, 146 A.D.2d 823, 824 (3rd Dept. 1989), app. denied 73 N.Y.2d 1016 (1989), citing People v. Carrasquillo, 54 N.Y.2d 248, 254 (1981). “[T]he emphasis should not be narrowly focused on…any…single factor, but on an evaluation of the totality of circumstances.” See People v. Bothwell, 261 A.D.2d 232, 234 (1st Dept. 1999), lv. denied 93 N.Y.2d 1026 (1999) (internal citation omitted). Encounters between police and the public are analyzed by the standard delineated in People v. DeBour, 40 N.Y.2d 210 (1976). DeBour established a four-tiered framework for evaluating these encounters: level one, otherwise known as a “request for information,” allows an officer to approach an individual and inquire about basic, nonthreatening matters such as pedigree information. People v. Hollman, 79 N.Y.2d 181, 184 (1992). Under level two, known as the “common law right to inquire,” a “police officer’s questions become extended and accusatory and the officer’s inquiry focuses on the possible criminality of the person approached.” Id. at 191. This level is more intrusive than a simple request for information, but short of an actual seizure, and requires that an officer have a “founded suspicion that criminal activity is afoot.” DeBour, supra at 223. Contact under level three allows police to stop and detain a person if they have reasonable or articulable suspicion that such person has committed a crime. Id. Finally, the fourth level authorizes an arrest based on probable cause to believe that an individual has committed a crime. Id. Defendant’s argument that detectives only had a level two right of inquiry when they first approached is rejected. However, this Court agrees with Defendant that being transported in a police vehicle to the precinct and placed in a locked interview room for almost three hours was effectively a level four arrest. Nonetheless, this Court finds that the arrest was grounded on probable cause. “In order to establish probable cause, the People must introduce facts and circumstances, including the description upon which the police acted which, when viewed together, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed and that the person arrested was the perpetrator.” See People v. Dodt, supra; People v. Wright, 8 A.D.3d 304, 306 (2nd Dept. 2004); People v. Simpson, 174 A.D.2d 348 (1st Dept. 1991); People v. White, 117 A.D.2d 127, 131 (2nd Dept. 1986), app. denied 68 N.Y.2d 818 (1986). Defendant argues that the victim’s description was relatively vague and could have matched many young men in the Bronx. It is correct that “…a description which is meager and lacking in specificity may be insufficient, without more, to establish probable cause to arrest.” People v. White, supra at 131. Here, the People have established that the victim provided an initial description of the perpetrator to Det. Shaw when she arrived at the squad on the day of her alleged attack, even though there was no testimony as to the specific description given. However, several days later she told Det. Soto that the assailant was a Hispanic male, between eighteen and twenty-one years of age, with light skin, wearing a baseball cap and a dark t-shirt, and with his hair in a ponytail or bun. The detectives were able to compare that detailed description to the video surveillance footage from the bridge, and determined that the suspect wore a black “Chicago Bulls” baseball-style cap and a black t-shirt bearing the “Luigi Snack” logo. Upon arriving at Luigi Snack, Detectives Ulan and Soto observed Defendant, a Hispanic male, matching the description in skin complexion, body type, and wearing a Chicago Bulls cap. The detectives determined that Defendant fit the description of the perpetrator as provided by the victim, as well as the appearance of the suspect observed by the detectives on the surveillance video of the bridge. Finally, while at Defendant’s place of employment, Det. Ulan obtained surveillance video footage which depicted Defendant on the night of the incident, wearing a black “Luigi Snack” t-shirt and a Chicago Bulls cap. “A description is sufficient when it is sufficiently specific and detailed to enable the police to reasonably conclude that the defendant was the person described.” See People v. Ward, 182 A.D.2d 573 (1st Dept. 1992), lv. denied 81 N.Y.2d 849 (1993), citing People v. Carmona, supra. See also People v. Rodriguez, 52 A.D.3d 341 (1st Dept. 2008), lv. denied 11 N.Y.3d 794 (2008); People v. Sanchez, 245 A.D.2d 105 (1st Dept. 1997), app. denied 92 N.Y.2d 860 (1998); People v. Brown, 238 A.D.2d 204 (1st Dept. 1997), app. denied 90 N.Y.2d 1012 (1997); People v. White, supra. The evidence shows that the victim gave a sufficiently detailed description of the perpetrator, including his sex, race, skin tone, approximate age, hair style, the dark color of his shirt, and the type of hat he wore. When coupled with the other findings of their investigation and their own observations, the detectives had a sufficient basis to reach their determination that the young man kneeling next to a motorbike was indeed the suspect involved in the alleged rape on the bridge. This Court finds that the police had probable cause to arrest Defendant when they escorted him to their vehicle. Because the police had probable cause to arrest Defendant at the time of his “seizure,” his arrest was clearly lawful. Huntley: At a Huntley hearing, the People carry the burden of going forward, in the first instance, to establish the legality of police conduct in obtaining a statement from a defendant. People v. Huntley, 15 N.Y.2d 72, 78 (1965). See also People v. Dodt, supra; People v. Holland, 48 N.Y.2d 861, 862 (1979); People v. Wise, 46 N.Y.2d 321 (1978); People v. Malinsky, 15 N.Y.2d 86 (1965); People v. Moses, 32 A.D.3d 866 (2nd Dept. 2006), lv. denied 7 N.Y.3d 927 (2006); Criminal Procedure Law §60.45. Additionally, the People have the burden of proving the voluntariness of any statements allegedly made beyond a reasonable doubt. People v. Valeruis, 31 N.Y.2d 51 (1972). See also People v. Anderson, 42 N.Y.2d 35 (1977). Once the prosecution has met this burden, the defendant has the ultimate burden of establishing the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, supra. See also People v. Di Stefano, supra; People v. Lombardi, 18 A.D.2d 177 (2nd Dept. 1963), aff’d 13 N.Y.2d 1014 (1963). Generally, statements that are the product of custodial interrogation must be preceded by Miranda warnings. Miranda v. Arizona, 384 U.S. 436 (1966). “As an “absolute prerequisite to interrogation, individuals taken into custody by law enforcement authorities…must be adequately and effectively apprised of [their] rights’ safeguarded by the Fifth Amendment…” See People v. Dunbar, 24 N.Y.3d 304, 313-314 (2014), cert. denied 135 S.Ct. 2052 (2015), quoting Miranda v. Arizona, supra at 467; People v. Dorvil, 175 A.D.3d 708,709 (2nd Dept. 2019); U.S. Constitution Amendment V; N.Y. Constitution, Art I, §6. “[B]oth 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.” See People v. Huffman, 41 N.Y.2d 29, 33 (1976). “Miranda warnings are required when a person’s freedom of movement is restricted and the questioning is designed to elicit incriminating evidence.” See People v. Chappelle, 189 A.D.2d 695 (1st Dept. 1993). A person is said to be in “custody” when a “reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave.” People v. Paulman, 5 N.Y.3d 122, 129 (2005), citing People v. Harris, 48 N.Y.2d 208, 215 (1979); People v. Yukl, 25 N.Y.2d 585, 589 (1970), cert. denied 400 U.S. 851 (1970). “Custody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.” People v. Rodney P., 21 N.Y.2d 1, 9 (1967). “The standard to be applied in ascertaining whether a suspect is in custody for Miranda purposes is ‘what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s position.’ A suspect’s awareness that the police may have incriminating evidence against him is generally irrelevant in determining whether the questioning is custodial; the critical consideration is whether he reasonably believes his freedom is significantly restricted.” People v. Nova, 198 A.D.2d 193, 195 (1st Dept. 1993), app. denied 83 N.Y.2d 808 (1994). The issue of whether a suspect is in custody is generally a question of fact. People v. Centeno, 76 N.Y.2d 837 (1990). The factors to be considered include the amount of time Defendant spent with the police, whether his freedom of action was significantly restricted, the location of the questioning and environment under which he was questioned, his degree of cooperation, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature. See People v. Macklin, 202 A.D.2d 445 (2nd Dept. 1994), app. denied 83 N.Y.2d 912 (1994). The People claim that a reasonable person in Defendant’s position, innocent of any wrongdoing, would not have thought he was in custody at the time he was escorted to the squad. They note that Defendant was “asked,” not ordered, to come to the precinct; he was not handcuffed; he never asked to leave or questioned the length of the wait before interrogation commenced, and the detectives did nothing overt to suggest to defendant that he was in custody or under arrest. In People v. Macklin, supra, the defendant, who fit the general description of a stabbing suspect, was found walking along a road approximately one and one-half miles from a murder site. The defendant seemed nervous, began walking away rapidly with his hands in his pockets and gave inconsistent answers for his presence at the location. When a trooper requested that the defendant remove his hands from his pockets, it was revealed that the defendant had a fresh and bloodied cut on his hand. The defendant agreed to accompany the trooper to the police barracks, where he was questioned at length before being given Miranda warnings. The Appellate Division, Second Department, held that the troopers had probable cause to arrest the defendant well before apprising him of his constitutional rights. They further held that the statements made by the defendant prior to the Miranda warnings, along with any statements made afterward, should be suppressed, as he was in (continuous) police custody. Here, the Defendant was “asked” to accompany the detectives to the squad. Although not handcuffed, once they arrived at the Squad, he was placed in an interrogation room, which remained locked for approximately three hours. The People claim that the locked door “was of no moment, and would only have become an issue if Defendant had attempted to or asked to leave,” However, detectives already had probable cause to arrest Defendant when he was asked to accompany them to the precinct and Det. Epitashvili testified that Defendant was “not free to leave.” See Hearing Transcript, Page 28, Lines 4-5. Defendant knew the door to the interrogation room was locked, because he had to knock in order to request water. “Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment.” See People v. Boodle, 47 N.Y.2d 398, 401 (1979), cert. denied 444 U.S. 969 (1979); People v. Cantor, 36 N.Y.2d 106, 111 (1975). A reasonable man, innocent of any crime, would not have thought he was free to leave the precinct under these circumstances. This Court finds that Defendant was not free to leave the precinct and was “in custody” for purposes of Miranda. Indeed, this Court has already found that Defendant had been placed under arrest and therefore was in custody before he was left in the locked interrogation room. “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” People v. Paulman, supra at 129, quoting People v. Ferro, 63 N.Y.2d 316 (1984), cert. denied 472 U.S. 1007 (1985). Not every remark made by a police officer which is followed by a defendant’s incriminating statement, constitutes interrogation. People v. Bryant, 87 A.D.2d 873, 874 (2nd Dept. 1982), aff’d 59 N.Y.2d 786 (1983). “Statements made by a suspect at a preliminary stage of an investigation in response to a law enforcement agency’s general inquiry are not usually considered the product of interrogation.” People v. Harster, 63 Misc. 3d 1209(A), 8 (Crim. Ct. Bronx. Co. 2019). Defendant argues that the questions put to him in the interrogation room before Miranda warnings were administered, particularly those regarding his employment, members of his household, his cell phone and Facebook account, sought more than administrative information necessary to process an arrest, and were investigative in nature. The People, on the other hand, characterize that line of questioning as part of a lawful inquiry to obtain his “pedigree” information. They argue that these questions were related to concerns having to do with bail and custody, and not the elements of the crime. This Court finds that both elements of custody and interrogation were present when Defendant was asked this series of preliminary questions, and that at least, in part, the questions sought information which did not fall outside the protection of Miranda. Thus, for the reasons set forth below, the entire line of questions and answers which preceded Miranda must be suppressed. The United States Supreme Court has recognized that routine booking questions constitute custodial interrogation, but that the answers given in response to such questions fall outside the protection of Miranda if they are “reasonably related to the police’s administrative concerns.” Pennsylvania v. Muniz, 496 U.S. 582, 601-602 (1990). See also Rhode Island v. Innis, 446 U.S. 291, 302 (1980). New York jurisprudence has long recognized that “[a]sking a suspect for his name and address is neither intended nor likely to elicit information of a criminal nature…questioning conducted during the booking process [is] not the type of interrogation proscribed by Miranda v. Arizona.” See People v. Rivera, 26 N.Y.2d 304, 309 (1970). “The exception derives from the essential purpose of Miranda — to protect defendants from self-incrimination in response to questions posed as part of the investigation of a crime, as distinguished from noninvestigative inquiries…(citations omitted). [New York has] also acknowledged the exception.” People v. Rodney, 85 N.Y.2d 289, 292 (1995). New York Courts have addressed what constitutes pedigree information and have found certain questions to be reasonably related to administrative concerns. For example, in People v. Alleyne, 34 A.D.3d 367 (1st Dept. 2006), lv. denied 8 N.Y.3d 918 (2007), cert. denied 552 U.S. 878 (2007), during arrest processing, the defendant was asked if he had any nicknames, a question which is included in the booking sheet. The defendant provided a nickname that the officer knew bore significance to the victims. Although the defendant had not yet received Miranda warnings, his response was admissible under the routine booking or pedigree exception. “Even assuming the officer knew or should have known that, since defendant’s nickname was relevant to the question of identity, the question was reasonably likely to elicit an incriminating response…a question which falls within the scope of interrogation…does not for that reason fall outside the pedigree exception…The evidence establishes that the officer was simply asking the questions set forth on the booking sheet, and that none of his questions [were] designed to elicit incriminatory admissions or a disguised attempt at investigatory interrogation…To carry defendant’s argument to its logical conclusion, an officer who was aware that an arrestee’s true name could link him to a crime could not even ask that elementary question during routine booking without first providing Miranda warnings.” (quotation marks and citation omitted). Supra at 367. See also, for example, People v. Wortham, 160 A.D.3d 431 (1st Dept. 2018), lv. app. granted 34 N.Y.3d 940 (2019) (hearing court properly denied defendant’s motion to suppress a statement he made in response to an officer’s pedigree question…defendant acknowledged that he resided in apartment where contraband was found, but he was responding to a routine administrative question that was not a “disguised attempt at investigatory interrogation”); People v. Martin, 147 A.D.3d 587 (1st Dept. 2017), lv. denied 30 N.Y.3d 951 (2017), aff’d. 33 N.Y.3d 929 (2019) (detective’s pedigree question regarding defendant’s residence, which was the apartment where the police had executed a search warrant and discovered contraband, was routine questioning and was not designed to elicit an incriminating response, even if the answer was reasonably likely to be incriminating); People v. Flagg, 149 A.D.3d 513 (1st Dept. 2017), lv. denied 29 N.Y.3d 1079 (2017) (when police asked defendant’s address, he acknowledged that he resided in the apartment where he was arrested and contraband at issue was found…warnings were not required because this routine administrative question, which was part of a series of standard booking questions such as name, address, and so forth, was not designed to elicit an incriminating response…even if the answer was reasonably likely to be incriminating); People v. Velasquez, 33 A.D.3d 352 (1st Dept. 2006), lv. denied 7 N.Y.3d 929 (2006) (detective asked defendant where he lived to clarify information previously received…the answer was found to be reasonably related to police administrative concerns and no necessary connection to essential elements of the crimes); and People v. Kennard, 160 A.D.3d 1378 (4th Dept. 2018), lv. denied 31 N.Y.3d 1150 (2018) (questions related to defendant’s age, date of birth, maiden name, and whether she had any scars or tattoos, were taken straight from the prisoner data report and were not designed to inculpate defendant).⁵ There is no dispute that Defendant had not been advised of his Miranda rights prior to the preliminary questioning. In order to determine whether the preliminary questions fall within the category of basic identifying data required for booking and arraignment, this Court must consider the nature of the information being sought, and both, the content, and context of the questioning. See United States v. Minkowitz, 889 F. Supp. 624 (E.D. N.Y. 1995). The connection between the questions asked and the crime a defendant is suspected of committing is “highly relevant.” Minkowitz, supra at 627. The basic pedigree questions put to Defendant at the start and close of the preliminary round of questioning, before Miranda warnings were given — such as his age and date of birth; address; place of birth; his proficiency with English; whether he had taken any drugs, alcohol or medications that day, whether he was sick or had any injuries; whether he suffered from any mental illness; and whether he could he read or write in Spanish — were arguably reasonably related to administrative concerns, such as those referred to in Rodney (eg. assignment of counsel, setting of bail, and the arraigning court’s determination whether to release defendant on his own recognizance) and were not likely to elicit incriminating admissions about an alleged rape on a bridge. “The police are certainly entitled to make a reasonable inquiry as to the identity of the person they have taken into custody without the necessity of formal warnings.” People v. Rivera, supra at 309. There was “…no necessary connection to an essential element of the crimes charged.” See People v. Velasquez, supra at 354. In People v. Rodney, supra, upon which both Defendant and the People rely, the New York Court of Appeals held that questions regarding a defendant’s employment, which were asked during routine booking, were reasonably related to administrative concerns and fell within the pedigree exception to Miranda. The arresting officer in Rodney asked the defendant his name, address, Social Security number, the date and place of his birth, and whether he was employed, in order to complete an on-line booking report. The officer testified that the defendant “kind of smiled…and said ‘I’m in sales.’” The Court of Appeals held that “[a]lthough the question about defendant’s occupation is arguably related to the conduct for which defendant had been arrested, it was not a disguised attempt at investigatory interrogation, and was not reasonably likely to elicit an incriminating response from defendant.” Id at 294. The defendant was simply asked if he was employed. This Court finds, however, that some of the questions asked midway through the preliminary questioning were, in fact, probing beyond pedigree, investigatory in nature, and not related to administrative concerns. Here, as in Rodney, Defendant was asked where he worked and the address, certainly proper questions for administrative purposes. However, he was also asked his duties, his boss’s name, how long he had worked there, what days and hours he worked, and how much he was paid. At the time these questions were asked, detectives had already recovered and viewed video of the assailant on the Washington Bridge on the date and time of the alleged incident. In the video, the assailant was wearing a shirt with the “Luigi Snack” logo. On the day Defendant was taken into custody, the detectives spoke with the restaurant owner who confirmed that he was employed at the restaurant. The restaurant owner retrieved surveillance video from the night of the incident, depicting Defendant at work and wearing the same shirt. In People v. Dorvil, supra, an accomplice had implicated the defendant in a robbery, and told a detective that she had previously worked with the defendant in a bar. After the defendant was arrested and placed in an interview room at the police station, the detective asked the defendant a series of questions without administering Miranda warnings. “Among other things, these questions concerned the defendant’s employment, the length of his tenure at his current job, his job responsibilities, the length of time he had lived at his current address, and other places where he and his family had lived. After this questioning, the detective told the defendant: ‘I’m [going] to read [the] Miranda rights to you, just to get it out of the way.’ The detective then administered the Miranda warnings and the defendant waived his rights.” Id at 709-710. The Appellate Division, Second Department, found that the pre-Miranda questioning was not mere ‘small talk,’ but, rather, interrogation,” and held that the trial court should have suppressed the defendant’s entire videotaped interrogation. Here, as in Dorvil, the questions administered before Miranda were probing, relevant to an aspect of the case, and investigative in nature, particularly given what detectives had already uncovered in their investigation. As stated in People v. Rodney, supra “…the People may not rely on the pedigree exception if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case.” Rodney, supra at 293. Unlike Rodney, where the officer’s question whether the defendant was employed was found to be routine in nature and came within the exception, the questions here went beyond mere pedigree. See also People v. Mascall, 149 A.D.3d 525 (1st Dept. 2017), lv. denied 29 N.Y.3d 1130 (2017) (employment question was asked after officer had finished booking paperwork and was incriminating under the circumstances of the case). Additionally, during the initial questioning, Defendant was asked: who he lived with, his mother’s name and phone number, the phone numbers for his stepfather and brothers; what model phone he owned, his cellular carrier, when and how he paid his phone bill, and most significantly, the password to unlock his cellphone. Defendant was also asked his username on Facebook; whether he had a girlfriend, her name, where she lived, how they met given that he lived in the Bronx and she lived in New Jersey, her phone number, when and where he last saw her, how she get to his house; his highest level of education; how long he lived in the United States, where did he live prior to his current address; when was the last time he saw his mother; and his immigration status. Again, arguably, some of these questions, on their own, might not constitute interrogation. In fact, these questions may not even call for an inculpatory response, but under the totality of the circumstances, they exceeded the boundaries of the exclusionary rule. Viewed as a whole, it is difficult to see how these questions constitute mere “pedigree.” In People v. Crawford, 163 A.D.3d 986 (2nd Dept. 2018), lv. denied 32 N.Y.3d 1063 (2018), a 20 to 25-minute interview involved discussions about the defendant’s family and criminal history and whether the defendant knew why he was being questioned. These were found to not fall within the exception for pedigree information reasonably related to the administrative concerns of the police. While the detectives in the case at bar did not delve into Defendant’s criminal history or whether he knew why he was being questioned until after Miranda warnings were given, this Court finds that the questions regarding his family, his girlfriend, his cellphone and his Facebook account were investigatory, and not reasonably related to police concerns. Therefore, they do not fall within the exception for pedigree information, regardless of whether the questions actually evinced an incriminating response. Defendant’s responses to these questions “…was testimonial because he was required to communicate an express or implied assertion of fact or belief and, thus was confronted with the ‘trilemma’ of truth, falsity, or silence, the historical abuse against which the privilege against self-incrimination was aimed.” Pennsylvania v. Muniz, supra at 583. The Self-Incrimination Clause of the Fifth Amendment provides that “no person shall be compelled in any criminal case to be a witness against himself.” A defendant is, indeed, compelled to be a witness against himself if he is explicitly or implicitly asked to relate a factual assertion or disclose information. Doe v. United States, 487 U.S. 201, 210 (1988). Based on the foregoing, the pre-Miranda interrogation is suppressed. Furthermore, “…where an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed.” People v. Paulman, supra at 130; People v. Chapple, 38 N.Y.2d 112 (1975). In determining whether there was a “definite, pronounced break in the interrogation to dissipate the taint from the Miranda violation,” the following factors should be considered: “…the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police.” People v. Richardson, 147 A.D.3d 577, 581 (1st Dept. 2017), lv. denied 29 N.Y.3d 1085 (2017), quoting People v. Paulman, supra. Here, there was no break in time whatsoever between the pre-Miranda and post-Miranda interrogation. The questioning continued in the same interrogation room, with the same two detectives, following the same question-translation-answer-translation format. “…[I]t cannot be said that there was such a definite pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning.” People v. Dorvil, supra at 710 (internal quotations omitted). See also People v. Rodriguez, 132 A.D.3d 781, 783 (2nd Dept. 2015), lv. denied 27 N.Y.3d 968 (2016) (the statement made by the defendant during the pre-9:00 a.m. questioning, which the Supreme Court suppressed, and the subsequent second videotaped statement were part of a single continuous chain of events. “Accordingly, the Supreme Court should have suppressed the defendant’s second videotaped statement.”); People v. Daniel, 122 A.D.3d 401 (1st Dept. 2014), app. dismissed 27 N.Y.3d 1142 (2016) (defendant’s two written statements, although produced after she had been Mirandized, were part of a single continuous chain of events that included the detective’s initial pre-warning inquiries and statement); and People v. Perry, 97 A.D.3d 447 (1st Dept. 2012) (the hearing court erred when it concluded that the first statement at the defendant’s apartment was voluntarily made. The Appellate Court concluded that the later mirandized statement made at the precinct should have been suppressed as it was obtained as part of a single continuous chain of events, so that the later warning was insufficient to dissipate the taint of the initial violation). Statement evidence which is obtained as a result of illegal police conduct is inadmissible under the exclusionary rule as a violation of the Fifth Amendment privilege against self-incrimination. The exclusionary rule states that evidence which is illegally obtained may not be used by the government against its citizen. Articulated in a federal context in Weeks v. United States, 232 U.S. 383 (1914), the rule was applied to the states for the first time in Mapp v. Ohio, 367 U.S. 643 (1961) (“…the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments…”). The rule “…is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217 (1960) (emphasis added). It is difficult for this Court to conceive any scenario where pre-Miranda questions such as: who is your cellular carrier; what is your cell phone password; and what is your Facebook name, can be explained away as merely seeking pedigree information necessary for administrative processing. A cell phone password by definition, is intended to secure personal information from unauthorized users. It is meant to protect privacy. Questions such as these, were asked solely to facilitate and advance the investigation. Therefore, the pre-and post-Miranda statements must be suppressed. To find otherwise, would be contrary to the intended purpose of the exclusionary rule. “The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused.” Michigan v. Tucker, 417 U.S. 433, 447 (1974). Our New York Court of Appeals concluded that “…the mandate of N.Y. Constitution, article I, §6 that ‘[n]o person…shall…be compelled in any criminal case to be a witness against himself’ would have little deterrent effect if the police know that they can as part of a continuous chain of events question a suspect in custody without warning, provided only they thereafter question him or her again after warnings have been given. The rule of the Chapple case, therefore, continues as a matter of State constitutional law, to govern the admissibility of statements obtained as a result of continuous custodial interrogation.” People v. Bethea, 67 N.Y.2d 364, 366 (1986). Based on the foregoing, Defendant’s pre-and post-Miranda statements which were elicited in violation of the Fifth Amendment and Miranda v. Arizona, supra, are suppressed. The People will not be permitted to use the entire videotaped interrogation on their direct case. The deterrent effect of the exclusionary rule applies to exclude Defendant’s incriminating statements on the People’s case-in-chief. This Court must therefore determine whether the people may introduce the videotaped interrogation on cross-examination, should Defendant testify at trial. Defendant argues that his entire statement was involuntary and that the waiver of Miranda was invalid due to the detectives’ failure to investigate his mental state after he admitted to being addicted to opiates. He claims that the detectives did not ask him if he was under the influence of drugs or alcohol or experiencing withdrawal at that time, and that there was “strong evidence” that he was suffering from either intoxication or withdrawal. Defendant maintains that doubt as to his mental state and voluntariness taints each of the consent forms signed for a DNA swab, and the search of his apartment. He relies on People v. Cyrus, 48 A.D.3d 150 (1st Dept. 2007), lv. denied 10 N.Y.3d 763 (2008), which states “…at least one court has found that evidence that a confessing defendant was suffering from heroin withdrawal is an important factor in determining whether a confession was involuntary (see People v. Johnson, 168 Misc.2d 81, 88-90 (Sup. Ct. Kings Co. 1995).” The United States Supreme Court has held that statements obtained in violation of Miranda which are inadmissible on the People’s direct case, may be used to impeach a defendant’s credibility, or on rebuttal by calling another witness to testify. See Harris v. New York, 401 U.S. 222 (1971). The standard for allowing the statement(s) in evidence if the defendant takes the witness stand is “trustworthiness.” See People v. Washington, 51 N.Y.2d 214 (1980); People v. Wise, supra. “It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” Harris, supra at 224. In order to determine voluntariness, a court must examine whether a defendant’s statement to police was elicited through coercion or other improper tactics that resulted in defendant’s will being overborne, or that a defendant suffered from a mental condition which rendered his inculpatory statements involuntary. C.P.L. §710.20(3); People v. Anderson, supra at 38. The hearing court must review the totality of the circumstances, that is, both the characteristics of the accused and the details of the interrogation, in order to determine whether defendant’s statement was in fact involuntary. Anderson, id at 35. The Court of Appeals has held that “the general rule applicable to confessions obtained from persons under intoxication has been well stated to the effect that ‘proof that the accused was intoxicated at the time he confessed his guilt of crime will not, without more, bar the reception of the confession in evidence. But if it is shown that the accused was intoxicated to the degree of mania, or of being unable to understand the meaning of his statements, then the confession is inadmissible.” People v. Schompert, 19 N.Y.2d 300, 308 (1967), cert. denied 389 U.S. 874 (1967). See also People v. Adams, 26 N.Y.2d 129, 137 (1970), cert. denied 399 U.S. 931 (1970); People v. Frejomil, 184 A.D.2d 524 (2nd Dept.1992), lv. denied 80 N.Y.2d 903 (1992); People v. Husbands, 171 A.D.2d 756 (2nd Dept.1991), lv. denied 78 N.Y.2d 923 (1991). The Schompert Court also stated “…this is not to suggest that a confession made by one who is in a state of self-induced intoxication will always be admissible regardless of the degree of inebriation…the courts will look to all the facts and circumstances relevant to the ultimate question of whether the confession is worthy of belief. One of these factors is, of course, the degree of specific awareness of the particular facts or general understanding of the circumstances possessed by the confessant.” Supra at 305. In People v. Monzon, 167 A.D.2d 357-358 (2nd Dept. 1990), the Appellate Division, Second Department held that “[w]hile the defendant was a drug user who did manifest some signs of drug withdrawal at the time of the interrogation, he nonetheless remained lucid and cooperative, and appeared to have a full awareness and understanding of the nature of the proceedings around him. Indeed, the defendant was alert enough to first deny any knowledge of the murder and then, after being presented with incriminating evidence, to orchestrate an agreement with the police for the release of his female companion.” Relying on Schneckloth v. Bustamonte, 412 U.S. 218 (1973) and People v. Anderson, supra, the Court found that the hearing court did not err in finding that, under the totality of the circumstances, the defendant’s oral confession was voluntarily made and therefore admissible into evidence. On this record, the People have established Defendant’s willingness to waive his Miranda rights and that his capacity to do so was not critically impaired. See Culombe v. Connecticut, 367 U.S. 568, 602 (1961); People v. Williams, 62 N.Y.2d 285, 288-290 (1984); People v. Anderson, supra at 41. Any argument that Defendant’s physical or emotional condition rendered him unable to voluntarily waive his Miranda rights is contradicted by the video of the confession. Defendant was asked if he had taken any drugs, alcohol or medications that day or whether he had any psychiatric conditions, and he answered “no.” When discussing his addiction, Defendant offered that the pills make him “crazy, dizzy and not aware of himself” and that he begins to “walk, run and talk a lot.” None of those behaviors were exhibited or apparent during the interrogation. Understandably, there are portions of the video where Defendant was visibly upset by the prospect of his arrest, and where he laments that his “life is over.” During those times he was likely experiencing emotional distress, however, there was no indication that he was under the influence of any substance. Simply put, Defendant did not exhibit symptoms of intoxication or withdrawal. See People v. Adams, 64 A.D.2d 712 (2nd Dept. 1978). Also, as in Monzon, supra, Defendant was alert enough to initially deny involvement in the alleged rape, and later confess to having sex with the complainant. Thus, Defendant’s claim that his drug use and/or withdrawal rendered his confession involuntary is not supported by the record. Defendant also argues that he was made certain false promises which also raise doubt as to the voluntariness of his statement. Specifically, he maintains that he was told that his statement was just between him and the detectives, and that “nothing said [would]l leave the room” in order to elicit a statement from him. “A confession is involuntarily made when it is obtained by a public servant engaged in law enforcement activity by means of any promise or statement of fact which creates a substantial risk that the defendant might falsely incriminate himself.” People v. Mateo, 2 N.Y.3d 383, 413 (2004), cert. denied 542 U.S, 946 (2004); see also Criminal Procedure Law §60.45(2)(b)(i). The People must prove beyond a reasonable doubt that statements they intend to introduce at trial were not the product of either physical or psychological coercion. Miranda v. Arizona, supra at 448. “Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Mateo, supra at 413-414. An involuntary statement includes one which is obtained by means of a promise or statement which creates a substantial risk that an arrestee might falsely incriminate himself. Criminal Procedure Law §60.45(2)(a) and (2)(b)(i); People v. Chase, 85 N.Y.2d 493, 500 (1995). The test of involuntariness is whether “self-direction is lost and compulsion of whatever nature or however infused propels or helps to propel the confession.” Culombe v. Connecticut, supra at 602. Whether a confession has been coerced, therefore, is to be determined from the perspective of the defendant. Illinois v. Perkins, 496 U.S. 292 (1990). Courts have recognized that certain techniques may, or may not, be used to obtain a confession, and that voluntariness should be determined by examining the totality of circumstances under which the confession was given. The test for determining whether deceptive police tactics render a confession involuntary is whether they are “so fundamentally unfair as to deny due process.” See People v. Tarsia, 50 N.Y.2d 1, 11 (1980). “The choice to speak where speech may incriminate is constitutionally that of the individual, not the government, and the government may not effectively eliminate it by any coercive device. It is well established that not all deception of a suspect is coercive, but in extreme forms it may be. Whether deception or other psychologically directed stratagems actually eclipse individual will, will of course depend upon the facts of each case, both as they bear upon the means employed and the vulnerability of the declarant.” See People v. Thomas, 22 N.Y.3d 629, 642 (2014) (emphasis added). In People v. Thomas, supra, the Court of Appeals held that “[t]he various misrepresentations and false assurances used to elicit and shape defendant’s admissions manifestly raised a substantial risk of false incrimination.” In that case, the defendant was told, multiple times, that “…whatever had happened was an accident, that he could be helped if he disclosed all, and that, once he had done so, he would not be arrested, but would be permitted to return home.” Id at 201. These are the types of promises that are so fundamentally unfair that they deny a defendant due process. In this case, Defendant was told that whatever he said in the interrogation room would “stay between” him and the detectives, and that the detectives would speak to the District Attorney on his behalf. There is no evidence of coercive or illegal police activity, no weapons were drawn, and there was no indication that Defendant had been threatened or forced to speak. The promises made here are not the kind which would lead a defendant to believe that he would not be arrested, that he would be allowed to go home, or which “threaten that the assertion of Fifth Amendment rights will result in harm to the interrogee’s vital interests.” Thomas, supra at 642. See also Garrity v. New Jersey, 385 U.S. 493 (1967). Defendant argues that his requests to call his mother, coupled with his relative youth and lack of experience with the criminal justice system, also bore on his voluntariness. Defendant relies on Matter of Daijah D., 86 A.D.3d 521 (1st Dept. 2011), which holds that in assessing the voluntariness of consent, a court should consider, among other factors, the personal background of the consenter, including his or her age and prior experience with the law. Supra at 522. Defendant, while young at 21 years of age, was not a minor. Taking these, and all other circumstances into consideration, this Court finds that the police conduct was not so coercive as to overbear Defendant’s voluntariness of consent.⁶ Based on the foregoing, this Court finds that the People have proven beyond a reasonable doubt that the defendant’s videotaped statement was voluntary. While inadmissible on the People’s direct case, for the reasons set forth above, the People will be permitted to use it on cross-examination in the event that Defendant testifies, or if appropriate, on rebuttal. Wade At a Wade hearing, the People have the burden of going forward with credible evidence establishing the legality of police identification procedures. United States v. Wade, 388 U.S. 218 (1967). See also People v. Chipp, 75 N.Y.2d 327, 335 (1990), cert. denied 498 U.S. 833 (1990). The People must demonstrate a lack of “undue suggestiveness” in the pretrial identification procedure employed by the police. Chipp, supra at 335. In other words, the identification of the defendant must arise from circumstances other than, and independent of, any suggestive identification procedure. People v. Arnau, 58 N.Y.2d 27 (1982), cert. denied 468 U.S. 1217 (1984); People v. Williams, 222 A.D.2d 149, 152 (1st Dept. 1996), app. denied 88 N.Y.2d 1072 (1996); People v. Foster, 200 A.D.2d 196, 199 (1st Dept. 1994). Identification testimony based on pretrial lineups is properly admitted unless it is shown that the procedure was unduly suggestive. Chipp, supra. Once the People have met their initial burden, the defendant bears the ultimate burden of establishing the illegality of the police conduct by a fair preponderance of the evidence. Chipp, id at 335; People v. Berrios, supra; People v. Gonzalez, 173 A.D.2d 48, 55-56 (1st Dept. 1991), app. denied 79 N.Y.2d 1001 (1992). Without such a showing on the part of the defendant, there is neither a need for nor a burden on the People “to demonstrate that a source independent of the pretrial identification procedure exists for the witness’s in-court identification” See People v. Jackson, 98 N.Y.2d 555, 559 (2002); Chipp, supra at 335. Here, the People have met their initial burden of establishing the reasonableness of the police conduct at the lineup and the lack of undue suggestiveness. Defendant maintains that several factors resulted in an unduly suggestive procedure. This Court finds that the record does not demonstrate any impermissive conduct on the part of the detectives in conducting the lineup procedure or in interacting with the witness. First, Defendant’s argument that Det. Soto “could have” subtly influenced the victim to select him is speculative and not supported by the record. There is no evidence that Det. Soto made any comments to the victim, other than to properly instruct her on the procedure, as set forth in the Lineup Pre-Viewing Instructions to Witness Report (People’s Exhibit #12). The detective’s instructions included the directive that the witness should not assume that he, as the investigator, knew who the perpetrator was and that she should not ask him or anyone else in the room for guidance. During the lineup, Det. Soto did not encourage the witness to select Defendant, nor did he indicate that the participant in seat #2 was a suspect. Moreover, contrary to Defendant’s contention, there is no requirement that lineups be conducted in a “double blind” manner, where the administrator of the lineup does not know which person in the lineup is the suspect. Neither the Courts nor the Legislature have mandated such a procedure. People v. Thomas, 131 A.D.3d 551 (2nd Dept 2015), lv. denied 26 N.Y.3d 1112 (2016). In fact, there are no mandates for the use of any specific lineup procedures, only that they not be “unduly suggestive.” See People v. Kluge, 180 A.D.3d 705 (2nd Dept. 2020) (“The failure to employ a double-blind sequential procedure is not a basis for suppression of the lineup, as there is no mandate to use any specific procedure.”); People v. Robinson, 8 A.D.3d 95, 96 (1st Dept. 2004), lv. denied 3 N.Y.3d 742 (2004) (“We know of no authority for the proposition that failure to employ the type of procedures defendant has advocated may be a basis for suppression of a lineup…Under existing authority, the only issue is whether the subject lineups were unduly suggestive.”). See also People v. McLaughlin, 8 A.D.3d 146, 147 (1st Dept. 2004), lv. denied 3 N.Y.3d 741 (2004). Therefore, Defendant’s motion on this ground is denied. Defendant next argues that the four fillers in the lineup were bigger in build than him, and that one of the fillers appeared to be twice his age, thus creating an unduly suggestive lineup. It is axiomatic that while participants in a lineup should share the same general physical characteristics as the suspect, a defendant appearing in a lineup need not be surrounded by participants who are nearly identical. People v. Chipp, supra at 336; People v. Kirby, 34 A.D.3d 695 (2nd Dept. 2006), lv. denied 8 N.Y.3d 881 (2007); People v. Gonzalez, supra at 56; People v. Ahmed, 173 A.D.2d 546, 547 (2nd Dept 1991), app. denied, 78 N.Y.2d 1073 (1991); People v. Burns, 138 A.D.2d 614, 615 (2nd Dept. 1988), lv. denied 71 N.Y.2d 1024 (1988). This Court has closely examined the photograph taken of the lineup participants (People’s Exhibit #13), and the Lineup Information Report (People’s Exhibit #12). Defendant is identified on the Lineup Information Report as 21 years of age, 5 feet and 6 inches in height, and 150 lbs. in weight. The Lineup Information Report indicates that the filler in seat #1 was five feet and six inches in height and weighed 130 lbs., filler #3 was five feet and six inches in height and weighed 160 lbs., filler #4 was five feet and seven inches in height and weighed 170 lbs., and filler #5 was five feet and five inches in height and weighed 180 lbs. The fillers were similar in appearance to Defendant, in that they were Hispanic males with light skin wearing black caps worn backwards, and a sheet covering most of their bodies. In the lineup photograph, the height of each of the lineup participants appears identical, and the weight of the lineup participants appeared to vary only slightly, except for filler # 5 who did appear heavier than Defendant and the other fillers. However, this weight disparity did not render the lineup unduly suggestive. People v. Floyd, 173 A.D.2d 211 (1st Dept.1991), app. denied 78 N.Y.2d 966 (1991) (lineup not rendered suggestive because the victim recognized two of the fillers and because a third filler was substantially heavier than the others). Any disparities in height or weight were minimized by the fact that the lineup participants were viewed while seated and holding large numbered cards in front of their torsos [see People v. Chipp, supra at 336; People v. Brown, 47 A.D.3d 826, 827 (2nd Dept. 2008), lv. denied 10 N.Y.3d 838 (2008); People v. Shaw, 251 A.D.2d 686 (2nd Dept. 1998), lv. denied 92 N.Y.2d 905 (1998)]. Notable is the fact that height and weight were not part of the victim’s description of the perpetrator. However, she described the assailant as between 18 and 21 years of age. The Lineup Information Report lists the filler in seat #5 as 42 years of age, while fillers #1, 3, and 4 are listed as 20, 20, and 18 years of age, respectively. In determining whether a lineup is unduly suggestive, it is not the actual age of the participants in the lineup that matters, but how old each of the participants appears. People v. Jackson, supra at 559. Here, the age difference with the filler in seat 5 is discernable from viewing the photograph, and was ostensibly apparent to the victim when she viewed the lineup. Nevertheless, the Court of Appeals has consistently held that an age discrepancy between a defendant and the fillers in a lineup, without more, is not sufficient to create a substantial likelihood that the defendant would be singled out for identification.” People v. Holley, 26 N.Y.3d 514, 525 (2015); People v. Jackson, supra at 558-559, quoting People v. Chipp, supra at 336. Defendant was not the only person in the lineup who fit the appearance and age provided by the victim, as three out of the four fillers fit the description that the individual who attacked her was between 18 and 21 years of age. The differences between defendant and the fillers in apparent age were not so distinguishing as to single out defendant. See People v. Chavez, 135 A.D.3d 952 (2nd Dept. 2016), lv. denied 27 N.Y.3d 1067 (2016) (“[A]ny differences between the defendant’s age and the ages of the lineup fillers were not discernable from their appearances such that the defendant was singled out.”); People v. Montgomery, 88 N.Y.2d 1041 (1996) (court properly suppressed lineup when five fillers were significantly older than 15 year old suspect). Defendant does not appear so dissimilar to the fillers that he stands out. People v. Tannen, 182 A.D.3d 482 (1st Dept. 2020); People v. Holley, 116 A.D.3d 442 (1st Dept. 2014), aff’d 26 N.Y.3d 514, 525 (2015); People v. Pinckney, 220 A.D.2d 539 (2nd Dept 1995), app. denied 87 N.Y.2d 906 (1995). Defendant’s motion to suppress based on the physical characteristics of the fillers is denied. Defendant next argues that the fillers, as “members of service,” knew he was the suspect, thus rendering the lineup suggestive. He provides no evidence of this, nor any legal precedent to support his conclusory claim. This Court knows of no authority which renders the use of police personnel, who know who the suspect is in a lineup, as unduly suggestive. Defendant also argues that the use of four fillers was inadequate, and that the lineup should have contained five. This Court knows of no authority which requires five fillers instead of four. In People v. Jackson, supra, the Court of Appeals affirmed the denial of the suppression of a lineup where only four fillers were implemented. See also People v. Bernier, 245 A.D.2d 137 (1st Dept. 1997), app. denied 91 N.Y.2d 940 (1998) (four fillers appropriately utilized); People v. Hernandez, 164 A.D.2d 920 (2nd Dept. 1990) (“No per se requirement regarding the numerical composition of lineups”); Roldan v. Artuz, 78 F.Supp.2d 260 (S.D. N.Y. 2000) (“The fact that there were only four instead of five fillers does not mean that the lineup was unduly suggestive. Roldan does not have a constitutional right to be surrounded by a specific number of lineup fillers”). As set forth above, Appellate Courts and the Court of Appeals have widely interpreted what constitutes a fair procedure. In this case, Defendant was not specifically and uniquely highlighted during the procedure and he was not the only participant who fit the description provided by the victim. Defendant’s motion on these grounds is denied. Finally, Defendant’s argument that the lineup procedure should have been recorded is rejected. There was no testimony as to a vocal component to the lineup. The participants were not asked to speak and there was nothing in the victim’s description which referred to Defendant’s voice or accent. Thus, the absence of a video of the lineup does not require suppression. People v. Wallington, 271 A.D.2d 384 (1st Dept. 2000), lv. denied 95 N.Y.2d 872 (2000). In sum, the record, including the lineup photographs, establishes that the composition and procedure of the lineup was not unduly suggestive. This Court finds that the defendant has not sustained his burden of proving by a preponderance of the evidence that the lineup was unfair and unduly suggestive. The People will be permitted to introduce evidence of the lineup procedure. Mapp At a Mapp hearing, the People have the burden of going forward with credible evidence establishing that the seizure of property was lawful. Mapp v. Ohio, supra. See also People v. Dodt, supra; People v. Berrios, supra. To satisfy its burden, the prosecution must present credible testimony. People v. Carmona, supra. Once the People have met their initial burden of going forward with credible evidence, the defendant bears the ultimate burden of establishing the illegality of the police conduct by a fair preponderance of the evidence. Berrios, supra. Here, the People seek to introduce at trial Defendant’s hat, jeans, and cell phone, which were recovered upon his arrest. Additionally, they seek to introduce his uniform shirt recovered from his apartment, pursuant to the consent form signed during his interrogation. Finally, they seek to introduce the results of the DNA swab taken during Defendant’s interrogation (see People’s Exhibit #9). It is well-settled that both the New York State and Federal Constitutions prohibit unreasonable searches and seizures. N.Y. Constitution, Art. I, §12; Terry v. Ohio, 392 U.S. 1 (1968); People v. Cantor, supra. Schneckloth v. Bustamonte, supra at 219, states that “…under the Fourth and Fourteenth Amendments…a search conducted without a warrant issued upon probable cause is ‘per se unreasonable…subject only to a few specifically established and well-delineated exceptions.’…It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” (internal citations omitted).” As discussed above, to determine the voluntariness of consent, the totality of the circumstances must be assessed and be free of any coercion. Again, the factors to be considered include: the suspect’s age, level of education, absence of advice regarding the suspect’s constitutional rights, length of detention, nature of interrogation and deprivation of food or sleep. Defendant argues that he is only 21 years of age, has only an eighth-grade education from the Dominican Republic, is not a citizen and feared deportation, did not speak English, and had never been arrested before. He argues that the involuntariness of his consent is a violation of his right against unlawful search and seizure. The question in this case, is whether the circumstances surrounding the forms Defendant signed during the interrogation fit the definition of “consent” in this constitutional context. Id at 219. The seminal case on this issue in New York is People v. Gonzalez, 39 N.Y.2d 122 (1976). The Court of Appeals reversed the convictions of a newlywed couple who was described as being “under 20 years of age.” According to federal agents, the couple, who had little previous contact in the criminal context, were arrested in their apartment, after Mr. Gonzalez allegedly sold cocaine to a DEA Agent in their bedroom. After a struggle with Mr. Gonzalez in the outer hallway, nine federal agents descended on the apartment and Mrs. Gonzalez opened the front door. The couple was handcuffed, separated from family (who arrived at the apartment five minutes after the agents) and from each other, and signed written consent forms to search their apartment. According to the defendants, they were threatened with harsh state prosecution and threatened that they would be separated forever. They were also told that a search warrant was “on the way.” Although defendants were told that they had the right to refuse consent, the Court found that the disclosure did not “ameliorate the coercive atmosphere in the apartment,” where the defendants were handcuffed, separated, and surrounded by law enforcement. Gonzalez, id at 130. See also People v. Kuhn, 33 N.Y.2d 203, 209 (1973). The Gonzalez Court considered the age of the suspects, among other factors, such as whether the consenter was in custody or under arrest, the background of the consenter, whether the consenter was evasive or un-cooperative prior to giving consent, and whether the consenter was advised of his or her right to refuse to consent.⁷ Id at 130. The Court ruled that, under the circumstances therein — the number of agents present in the small apartment; the young age of the defendants; the separation and handcuffing of the defendants; the removal of family from the scene; the tumultuous circumstances of the arrests; and the sudden acquiescence of the segregated and handcuffed couple — consent was not voluntary and the evidence recovered as a result thereof was suppressed. In Matter of Daijah D., supra, upon which Defendant relies, police stopped a 14-year-old girl and asked to search her purse. The defendant gave over her purse but did not explicitly assert verbal consent. The Appellate Division, First Department, citing Gonzalez, and also factoring her age, held that consent to search was involuntary and the evidence recovered in the purse was suppressed. Here, Defendant maintains that both Gonzalez and Daijah D. require this Court to consider the police actions surrounding the purported consents in order to determine whether they created a coercive environment. He maintains that the extensive interrogation prior to Miranda warnings left the impression that the warnings were but a “meaningless formality.” The People argue that Defendant agreed to the consents and signed them on his own volition. They maintain that Defendant agreed to have the police retrieve the work shirt from his home, and that he performed his own cheek swab to procure DNA. The People also argue that they would have been able to obtain search warrants and court orders for this evidence, even without Defendant’s consent. “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, [she] has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548 (1968). The People have established that the environment that Det. Soto and Det. Ulan created did not rise to the coercive level considered in Gonzalez and its progeny. Defendant was “in custody” for purposes of his consent to search. However, the detectives he interacted with from the moment he was approached at his job, through his interrogation, were polite and courteous. Defendant was never handcuffed, he was offered food and drink, and given soda and water, he was reassured several times that he would be able to speak with his mother when they finished the interrogation, and was told that he could have a cigarette after speaking with her. Defendant was informed that the detectives were “not immigration,” and he was repeatedly reassured to “take it easy” and to “calm down” during the interrogation. When Det. Soto indicated that Defendant was going to be arrested, Defendant was assured that the detectives would explain his story to the District Attorney and “talk about him in a good way…” Further, Defendant had been informed that he had the right to refuse before signing the consent to search his apartment and to collect his DNA, and the consent forms were printed in Spanish and read to Defendant before he signed them. Defendant directed the detectives to exactly where his uniform shirt could be found in his apartment. He gave his permission without reluctance and administered the swab as per Det. Soto’s instructions. “Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle.” Gonzalez, supra at 128. This Court finds that Defendant’s consent to search his apartment and to collect his DNA were voluntary and not the product of coercion. Thus, the uniform shirt and DNA evidence were properly obtained with the voluntary consent of Defendant and are admissible. The People will be permitted to introduce them at trial. Finally, the People have established that, in addition to Defendant’s consent to search his apartment, his hat, jeans, sneakers, and cell phone were properly recovered from his person at the squad. Police may search a defendant incident to a lawful arrest. Under this exception to the Fourth Amendment’s warrant requirement, the police are permitted to search the person of individuals lawfully arrested, or the area within their immediate control, if the search closely follows the arrest. People v. Gokey, 60 N.Y.2d 309, 312 (1983); People v. Simon, 55 A.D.3d 378 (1st Dept. 2008); People v. Wylie, 244 A.D.2d 247 (1st Dept. 1997), app. denied 91 N.Y.2d 946 (1998). This Court has already concluded that the police had probable cause to arrest Defendant. Based upon that conclusion, this Court further concludes that the defendant was lawfully searched incident to arrest. Summary Defendant was arrested pursuant to probable cause. Defendant’s motion to suppress his statements is granted. Defendant’s statements were voluntary and may be used to cross-examine him if he testifies, or if appropriate, on the People’s rebuttal case. Defendant’s motion to suppress the identification procedure is denied. Defendant’s motion to suppress tangible evidence is denied to the following extent: Defendant’s DNA evidence and his signed consent form are admissible; Defendant’s uniform shirt, and his signed consent to search are admissible. Defendant’s, hat, jeans, and cell phone are also admissible. This decision constitutes the Decision and Order of the Court. Dated: September 24, 2020