On February 21, 2020, defendant was arraigned on an indictment charging him with two (2) counts of reckless endangerment in the first degree, class D felonies (Penal Law §120.25); two (2) counts of criminal possession of a weapon in the third degree, class D felonies (Penal Law §265.02 [1]); and attempted robbery in the third degree, a class E felony (Penal Law §§110, 160.05). By decision and order issued on September 11, 2020, the court granted defendant’s motions for Huntley/Mapp/Dunaway and Wade hearings. The People called the following witnesses at the combined suppression hearing, which was held on October 20, 2020: Albany Police Officers Jacob Sopchak, Philip Durand, Michael Delano and Reginald Stancil. Defendant did not call any witnesses. Based upon the credible evidence adduced at the hearing, the court makes the following findings of fact and conclusions of law. FINDINGS OF FACT The charges against defendant stem from two separate events alleged to have occurred on November 17, 2019 and December 20, 2019 respectively. November 17, 2019 On November 17, 2019, Albany Police Officer Jacob Sopchak and his partner received a radio dispatch to respond to Johnson’s Laundromat located at 486 Clinton Avenue in the City of Albany for a black male wearing a blue jacket and hat threatening people with a knife. While traveling southbound on Robin Street, Sopchak observed a person matching that description with a knife in hand walking on the east side of the street and a group of people pointing and saying, “That’s him.” Sopchak exited his patrol vehicle and followed defendant on foot giving verbal commands to drop the knife, which were ignored. Defendant continued walking from Robin Street onto Orange Street and entered his first-floor apartment at 467 Orange Street. While outside the apartment, the complainant remained in an agitated state and spontaneously and repeatedly confirmed defendant was the person with the knife at the laundromat. Additional law enforcement officers, including a crisis intervention officer, arrived shortly thereafter and surrounded the building. Defendant was observed tapping a knife on the first-floor window. After approximately 90 minutes, and after speaking with Detective John Coleman, defendant eventually voluntarily exited his apartment and was subdued with the aid of a taser gun for not obeying commands, was handcuffed and arrested. Albany Police Officer Philip Durand testified, in relevant part, that after defendant was arrested and removed from the scene, he and at least two other police officers, entered defendant’s apartment to conduct a “security sweep” and viewed a knife on the windowsill where defendant had been standing. Durand candidly testified that the police had no indication that any other person was in defendant’s apartment. The protective sweep was nonetheless conducted because “we always have to check to make sure somebody else isn’t in there, to make sure that no one is actually hurt. So we were really doing it just for safety purposes” (Hearing Tr p 34). Durand further clarified that the protective sweep was conducted for the “safety of the officers, but also if somebody else was in there, it would be their safety as well. The only indication that we didn’t have anybody else was on the defendant’s word and you can’t take everybody at their word. You have to make sure that there is nobody actually still in the apartment” (Hearing Tr p 35). In addition to searching locations where a person could theoretically hide, Durand also acknowledged that his body camera depicted him, inter alia, reading some of defendant’s personal papers and moving couch pillows. Durand also testified that he was unaware of the number of officers who entered the apartment and how long they remained. December 20, 2019 On December 20, 2019, Albany Police Officer Michael Delano was on patrol and heard a radio dispatch for a black male wearing a blue mask and blue jacket who was alleged to have threatened a woman with a blue knife near the bus stop at 161 Washington Avenue. While traveling in the area of Dove Street and Washington Avenue in the City of Albany, an identified civilian witness flagged Delano down, which led to a conversation with Angela Carrasquillo, who explained that a white or Hispanic male wearing a blue mask threatened her with a knife at the bus stop. The witnesses also provided Delano with a direction of travel for the suspect, which he shared over the police radio. Albany Police Officer Kalbfliesh then radioed from the Washington Avenue bus stop that he and another witness saw the suspect getting on the No.22 bus. Shortly thereafter, the southbound and northbound #22 buses were stopped near each other at 677 Broadway. After being informed that she stopped the wrong bus, Albany Police Officer DiMura joined officers Reginald Stancil and Jason Seward at the northbound #22 bus. Seward boarded the bus from the front, and defendant attempted to exit from the rear of the bus, where Stancil was standing. Stancil told defendant, who was wearing a blue coat, to take his hands out of his pockets. When defendant did not comply, he was physically removed from the doorway, at which time his backpack separated from his body and fell to the ground. Defendant was thrown to the ground and handcuffed by Stancil, Kalbfliesh and DiMura. He was patted down and asked by Kalbfliesh, “Do you have a knife? Where is the knife?” Defendant responded that the knife was in his backpack, which DiMura immediately seized and searched. A blue knife was retrieved from the backpack. Albany Police Officer Leonard Gaspary radioed Delano, informing him that the bus was stopped, and the suspect was apprehended. After dropping her baby off at her residence, Carrasquillo traveled in the back of Delano’s patrol vehicle for a show-up identification procedure, which occurred approximately 15 minutes after defendant was forcibly detained. By this time, Albany Fire Department Emergency Medical Services had left the scene, but several police cars were present. Defendant was handcuffed but removed to the corner by Stancil, alone and apart from the group of officers in preparation for the drive-by show-up identification procedure. The only instruction provided by Delano to Carrasquillo was for her to tell him if she recognized anyone. In mid-conversation with Delano, Carrasquillo blurted out “Yeah, that’s him” as they approached defendant standing on the corner. CONCLUSIONS OF LAW At a pre-trial suppression hearing, the People have the initial burden of “going forward to show the legality of police conduct with the ultimate burden of proof on the defendant to show that the evidence seized should be suppressed” (People v. Davilla, 141 Misc 2d 296, 297 [NY Co.Ct 1988], citing People v. Whitehurst, 25 NY2d 389, 391 [1969] and People v. Pettinato, 69 NY2d 653 [1986]). Assuming the People meet their initial burden, the defense then bears the burden of persuasion to show the impropriety of the police conduct by a preponderance of the evidence (see People v. Berrios, 28 NY2d 361, 367 [1971]). The Court of Appeals has held that in assessing “whether there was probable cause for an arrest, [] the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice [citations omitted]. In making such a judgment [courts] must also bear in mind that ‘[i]n dealing with probable cause we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act’” (People v. Carrasquillo, 54 NY2d 248, 254 [1981], quoting Brinegar v. United States, 338 US 160, 175 [1949]). DUNAWAY Here, the court finds the People met their burden in establishing probable cause for defendant’s arrest on both November 17 and December 20, 2019. A police officer may arrest a person for A…(a) crime when he has reasonable cause to believe that such a person has committed (a) crime whether in his presence or otherwise@ (CPL 140.10 [1][b]). Acting as a prudent person would in believing that an offense has been committed, a police officer is allowed to draw upon the entirety of his or her experience and knowledge as a criminal investigator in determining whether probable cause for arrest exists (see People v. Hill 146 AD2d 823 [3 Dept 1989] lv denied 73 NY2d 1016 [1989]). The evidence of criminality need not rise to the level necessary to support a criminal conviction or even be sufficient to establish a prima facie case. It need merely appear more probable than not that crime has taken place and that the one arrested is its perpetrator (see People v. Carrasquillo, 54 NY2d 248, 254 [1981]). Here, on both occasions, the People met their initial burden in establishing that it was more probable than not that on November 17 and December 20, 2019, crimes occurred and that defendant was the perpetrator. Specifically, reports of criminal activity by both alleged victims of the November 17 and December 20, 2019 incidents were provided to law enforcement (see People v. Johnson, 19 AD3d 1163 [4 Dept], lv denied 5 NY3d 829 [2005] [reports of criminal activity by identified citizens provide law enforcement with probable cause to arrest]). Additionally, the People established, through the admission of radio transmissions, video evidence and law enforcement witness testimony, defendant’s identity as the suspect described as menacing separate people with a knife on the two separate dates. Specific to the November 17 incident, Sopchak testified that, as soon as he arrived on scene, multiple witnesses, including the alleged victim of the laundromat knife menacing, pointed at defendant and spontaneously identified him as the perpetrator. Defendant was under observation by law enforcement from their arrival on scene up until he was placed into custody upon exiting his apartment. As to the December 20, 2019 arrest, defendant claims that discrepancies concerning his physical description provided insufficient basis to support a DeBour level 3 forcible detention, which required law enforcement to have reasonable suspicion that defendant committed a crime (see People v. DeBour, 40 NY2d 210 [1976]). Here, the court finds that the discrepancies between witnesses’ descriptions of the suspect being white, Black or Hispanic or wearing a blue or black coat was not per se unreasonable as defendant is light skinned, and the situation was fluid. Consideration of the totality of the circumstances leads this court to conclude that the police acted with the requisite probable cause in arresting defendant on November 17, 2019, that defendant was lawfully detained prior to the show-up identification procedure on December 20, 2019 and lawfully placed under arrest after being identified by the complainant as the person who menaced her with a knife. Motions denied. MAPP: SEARCH OF DEFENDANT’S APARTMENT (November 17, 2019) Here, the People argue that, after defendant voluntarily exited his apartment and was subdued, handcuffed then arrested outside his apartment door, the police lawfully entered defendant’s home in the absence of a search warrant for the limited purpose of conducting a “protective sweep” during which, a knife “in plain view” was lawfully seized from the sill of the window where defendant was previously speaking with the police. As a precautionary measure, “[police] officers officers may conduct a ‘protective sweep’ [defined as] a quick limited pass through spaces immediately adjoining the place of arrest, to check for third persons who might destroy evidence or pose a threat to the officers or the public” (People v. Bost, 264 AD2d 425, 426 [2 Dept 1999]; People v. Gibson, 117 AD3d 1317, 1324 [3 Dept 2014], affd, 24 NY3d 1125 [2015]). To justify this warrantless “entry into an apartment, an officer must possess ‘articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene’” (People v. Bost, supra, quoting Maryland v. Buie, 494 US 325, 334 [1990]). Mere, “speculation that someone else may be in the apartment and might pose a threat is an insufficient basis on which to justify a protective sweep” (People v. Gibson, supra [Rose, J, in dissent]). The court finds that the warrantless search of defendant’s apartment, after his arrest outside of his apartment was not justified as a “protective sweep” incident to arrest. Here, the People’s witness affirmatively testified that the police had no indication that any other person was in defendant’s apartment but that a protective sweep was nonetheless conducted because “we always have to check to make sure somebody else isn’t in there, to make sure that no one is actually hurt. So we were really doing it just for safety purposes” (Hearing Tr at 34). Such a warrantless entry is not justified on speculation or as a matter of practice in the absence of a factual predicate from which the officer can reasonably infer that the apartment contained another person (see People v. Bost, supra). Moreover, as law enforcement were engaged with defendant for approximately 90 minutes prior to his arrest, they had ample opportunity to obtain a search warrant (see id. at 425-26, citing People v. Burr, 70 NY2d 354, 360 [1987], cert. denied 485 US 989 [1988]; People v. Mealer, 57 NY2d 214, 219 [1982], cert. denied 460 US 1024 [1983]; People v. Azouna, 261 AD2d 552 [2 Dept 1999]; People v. Levine, 174 AD2d 757, 759 [2 Dept 1991], appeal denied 79 NY2d 829 [1991]). Lastly, the court finds any reliance upon a concern for the safety of children living in an upstairs apartment to justify the protective sweep of defendant’s downstairs apartment to be unreasonable under the facts made known to the court. As the People failed to overcome the presumption of illegality by establishing the lawfulness of the “protective sweep” any evidence seized as a result of this illegal search, including the knife seized from the windowsill, must be suppressed. Motion granted. MAPP: SEARCH OF DEFENDANT’S BACKPACK (December 20, 2019) The court finds the People failed to meet their burden of establishing the existence of an exigency justifying the search of defendant’s backpack after his detention. In the absence of a search warrant, a lawful search of defendant’s backpack required the People to establish the existence of one of the following two exigencies: the need to ensure the safety of the public or arresting officer and/or the need to protect the evidence from destruction or concealment (see People v. Jimenez, 22 NY3d 717, 722 [2014]; People v. Diaz, 107 AD3d 401 [1 Dept 2013]; People v. Rosado, 214 AD2d 375, 376 [1 Dept 1995], lv denied 86 NY2d 740 [1995]). “‘[E]ven a bag within the immediate control or grabbable area of a suspect at the time of his [or her] arrest may not be subjected to a warrantless search incident to the arrest, unless the circumstances leading to the arrest support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the bag” (People v. Mabry, 184 AD3d 867, 869 [2 Dept 2020], quoting People v. Jimenez, 22 NY3d 717, 722 [2014]). Despite the clear video evidence presented by the People at the hearing, they maintain that defendant attempted to flee from the bus (Ppls memo of law at 48). To be clear, no credible evidence was adduced by the People to support a reasonable inference that defendant attempted to flee from law enforcement. Instead, the body camera depicts defendant being physically removed from the bus by police, which resulted in his backpack being separated from him and dropping to the ground. Defendant was then thrown face down on the sidewalk and handcuffed behind his back. After being patted down, Kalbfliesh asked defendant if there was a knife in his bag and, when defendant stated there was, DiMura immediately grabbed and searched defendant’s backpack retrieving a knife. A police officer witness need not “affirmatively testify as to safety concerns to establish exigency [but] such apprehension must be objectively reasonable” (People v. Mabry, supra at 869, citing People v. Jimenez, supra at 723). Here, there was nothing inherent about the nature of the offense that created an exigency (see People v. Mabry, supra at 869 citing People v. Jiminez, supra at 722). The circumstances under which defendant was forcibly detained effectively eliminated any potential, objectively reasonable risk to the safety of the public or law enforcement or a risk of evidence destruction that could not wait for the proper issuance of a search warrant. As such, defendant’s motion is granted and the contents of the backpack that were seized are suppressed. Motion granted. WADE: SPONTANEOUS IDENTIFICATION (November 17, 2019) “A pretrial identification procedure that is unduly suggestive violates due process and is therefore inadmissible” (People v. McMillan, 185 AD3d 1208 [3 Dept 2020]). Here, defendant’s identification as the perpetrator of the November 17, 2019 offenses was made spontaneously by complainant Maloney as she and law enforcement were actively attempting to apprehend defendant. Inasmuch as the identification was not police arranged or prompted in any fashion by accompanying law enforcement, there is no basis to suppress Maloney’s voluntary and spontaneous identification of defendant as the perpetrator of the November 17, 2019 offenses against herself and her child (see People v. McMillan, supra and cases cited within). Motion denied. WADE: SHOW-UP IDENTIFICATION (December 20, 2020) At a Wade hearing challenging the admission of a show-up identification, “‘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. Ortiz, 90 NY2d 533, 537 [1997], quoting People v. Chipp, 75 NY2d 327, 335[1990] [emphasis omitted]). Defendant, however, bears the ultimate burden of proving by a preponderance of the evidence that “[the] show-up procedure is unduly suggestive and subject to suppression” (People v. Ortiz, supra at 537). The court finds that the use of the show-up identification procedure was reasonable in this case, as it was conducted in close geographic and temporal proximity to the crime, establishing the reliability of the witness (see People v. Junco, 223 AD2d 927 [3 Dept 1996], lv denied 88 NY2d 880 [1996]; see also People v. Duuvon, 77 NY2d 541 [1991]). Here, the show-up occurred within 15 minutes of defendant’s forcible detainment and well within 30 minutes from the alleged commission of the crime and “in the context of a continuous, ongoing investigation” (People v. Brisco, 99 NY2d 596, 597 [2003]). The show-up identification was additionally justified in the interest of determining whether defendant was the right man or an innocent citizen (see People v. Duuvon, supra at 545). Furthermore, other than the inherent suggestiveness of all show-up identification procedures (see People v. Brisco, supra at 599; citing People v. Riley, 70 NY2d 523, 528 [1987]), this court finds that the show-up identification herein was proper and not suggestive. Standing alone, the close presence of police officers or vehicles to a defendant does not create an overly suggestive environment (see People v. Whitney, 158 AD2d 734 [2 Dept 1990]). In addition, while defendant was handcuffed, he was removed from the larger group of officers and was not removed to a police station for the show-up procedure, which is preferable (see People v. Riley, supra; People v. Adams, 53 NY2d 241 [1981]). Here, immediately upon approaching defendant and while in mid-conversation with Delano, complainant Carrasquillo identified defendant as the person who menaced her with a knife at the bus stop. The court finds that defendant failed to meet his burden of proving by a preponderance of the evidence that ” [the] show-up procedure [was] unduly suggestive and subject to suppression” (People v. Ortiz, supra at 537). Accordingly, defendant’s motion for an order suppressing the prospective identification testimony is hereby denied in all respects. Motion denied. HUNTLEY: PRE-MIRANDA STATEMENT (December 20, 2019) The statement subject to the Huntley hearing as contained on the People’s oral statement report indicates that, in response to Kalbfliesh’s question: “Do you have a knife on you” defendant allegedly responded, “Yes. It’s in my backpack.” Defendant moves to suppress this statement alleging he was entitled to be read his Miranda warnings prior to being asked this inculpatory question. The court finds defendant’s pre-Miranda statement was not the result of coercive interrogation, was made prior to defendant being arrested but contemporaneously with his forcible detainment (see People v. Rosa, 186 AD2d 494 [1992]) and was a response to a threshold inquiry by Kalbfliesh “intended to ascertain the nature of the situation during initial investigation of a crime, rather than to elicit evidence of a crime” (People v. Pruitt, 158 AD3d 1138, 1140 [4 Dept 2018], lvs denied, 31 NY3d 1120 [2018], 31 NY3d 1120 [2018]; see People v. Coffey, 107 AD3d 1047, 1050 [3 Dept 2013], lv denied, 21 NY3d 1041 [2013]). Motion denied. Any motions not specifically granted herein are hereby denied. This memorandum shall constitute the decision and order of the Court. Dated: December 3, 2020
