A Mapp/Huntley/Dunaway/Wade hearing was held before this Court on June 14, 2022. The People called two witnesses at the hearing: Detectives Ashafik Chouddery and Steven Acevedo. The Court credits each of their testimony. This decision summarizes the testimony below, as the Court’s findings of fact, and constitutes the Court’s conclusions of law. Findings of Fact On March 14, 2021, Detective Ashafik Chouddery, a police officer with the 103rd Precinct Detective Squad, learned that a robbery had occurred at Hotel 95, which is located at 145-07 95th Avenue in Queens, New York. He later met with the complainant, Veridania Perez, at the hospital where she was receiving treatment for injuries sustained during the robbery. Ms. Perez, whose face was swollen, bleeding, and bruised, stated that she was in her room at Hotel 95 on March 14 when a black male forcibly pushed his way into her room, physically attacked her, and stole her belongings. After meeting with Ms. Perez, Detective Chouddery went to Hotel 95 and inspected her room. He also obtained the hotel’s surveillance video from the staff at the front desk. Once he reviewed the surveillance video, Detective Chouddery shared an image of the suspect from the video with other police officers. He later received information from another officer that the individual in the surveillance video was defendant. Detective Chouddery then created a photo array, with defendant’s photograph placed in position two. Detective Chouddery asked Detective Steven Acevedo, a Spanish-speaking detective with the 103rd Precinct Detective Squad, to administer the photo array to Ms. Perez, who only spoke Spanish. Detective Chouddery did not share any details of the investigation or the identity of the suspect to Detective Acevedo. Detective Acevedo administered the photo array to Ms. Perez in her room at Hotel 95 on the evening of March 15, 2021. Before showing Ms. Perez the photo array, Detective Acevedo read her a list of standard instructions in Spanish. She stated that she recognized defendant as the person who “came to [her] room, took [her] money and beat [her] up really bad.” When asked how sure she was about her identification, she responded: “I’m 100 percent.” Detective Acevedo translated and transcribed her answers onto the photo array form. After Ms. Perez identified defendant in the photo array, Detective Chouddery returned to Hotel 95 with a photograph of defendant and asked staff at the front desk if they recognized him. The staff responded that defendant was staying on the fourth floor of the hotel. When he reached the fourth floor, Detective Chouddery observed defendant entering the hallway from a staircase. After asking defendant for his name, Detective Chouddery arrested and handcuffed him. Detective Chouddery then searched defendant and found a crushed, white powdery substance (later identified by the NYPD Police Lab as oxycodone) wrapped in wax paper inside his wallet. Detective Chouddery transported defendant to the 103rd Detective Squad and brought him to the interview room. After offering defendant water, Detective Chouddery administered Miranda warnings to defendant. Defendant stated that he understood each of his rights and agreed to answer questions. At one point during the interview, defendant stated that the substance found in his wallet was Percocet. After the interview concluded, Detective Chouddery brought defendant to be fingerprinted. While Detective Chouddery was explaining the process, defendant asked him how the victim could say he was the perpetrator if she did not know who attacked her. Conclusions of Law A. Legality of Defendant’s Arrest As an initial matter, the Court finds that defendant’s arrest was proper. It is well settled that the police have probable cause to arrest an individual when they have “information sufficient to support a reasonable belief that an offense has been [committed] or is being committed or that evidence of a crime may be found in a certain place.” People v. Jones, 202 AD3d 821, 825 [2d Dept 2022]. While mere suspicion or conduct equally susceptible to innocent or culpable interpretation is not sufficient, probable cause does not require proof beyond a reasonable doubt. People v. Alexander, 200 AD3d 790 [2d Dept 2021], lv denied 37 NY3d 1159 [2022]; People v. Kamenev, 179 AD3d 837 [2d Dept 2020], lv denied 35 NY3d 1027 [2020]. A “witness’s identification of [a] defendant at a photographic array furnishe[s] probable cause for his arrest.” People v. Ballinger, 62 AD3d 895 [2d Dept 2009], lv denied 13 NY3d 794 [2009]; People v. Pena, 95 AD3d 541 [1st Dept 2012]. Here, since the complainant unequivocally identified defendant in a photo array as the man who attacked her and stole her belongings, that identification provided the requisite probable cause for defendant’s arrest. To the extent that defendant contends that the police conduct prior to the photographic identification in learning his identity vitiated the probable cause necessary to arrest him, that argument is without merit. See People v. Tolentino, 14 NY3d 382, 388 [2010]; People v. Pena, 95 AD3d 541, 542 [1st Dept 2012] ["The…identity of a defendant…is never itself suppressible"]; People v. Diaz, 83 AD3d 958, 958 [2d Dept 2011] ["the identifications from the photo array were not an exploitation of any antecedent illegality, as the defendant's photograph was obtained from a source independent of the alleged unlawful conduct"]. Here, defendant does not allege and, indeed, has not shown that the way Detective Chouddery learned his name (i.e., receiving information from another detective) was improper or illegal. Moreover, defendant does not dispute that the photograph of defendant used in the photo array was lawfully obtained. Finally, the police only arrested defendant after complainant had unequivocally identified him in the photo array. Accordingly, the Court concludes that there was probable cause to arrest defendant. B. Suppression of Identification Evidence When a defendant seeks to suppress identification evidence, the People bear the initial burden of “establishing the reasonableness of the police conduct and the lack of any undue suggestiveness.” People v. Sosa-Marquez, 177 AD3d 1003, 1004 [2d Dept 2019]. Once the People meet this burden, the defendant “bears the ultimate burden of proving that a pretrial identification procedure was unduly suggestive.” People v. McDonald, 138 AD3d 1027, 1028 [2d Dept 2016]. A photo array is unduly suggestive if “some feature or characteristic of one of the depicted individuals is so unique or distinctive that it draws the viewer’s attention to that photograph, thereby indicating that the police have selected that particular individual.” People v. Bowman, 194 AD3d 1123, 1126 [3d Dept 2021], lv denied 37 NY3d 963 [2021]. While the various persons included in a photo array must be sufficiently similar in appearance to the defendant (People v. Lago, 60 AD3d 784 [2d Dept 2009]), there is no requirement that they be “nearly identical in appearance” to the defendant. People v. Chipp, 75 NY2d 327, 336 [1990]; see also People v. Staton, 28 NY3d 1160 [2017] [photo array was proper although defendant was older than other fillers]; People v. Linear, 200 AD3d 1498 [3d Dept 2021], lv denied 38 NY3d 951 [2022] [photo array was proper even though defendant was the only bald person featured]; People v. Marryshow, 162 AD3d 1313 [3d Dept 2018] [photo array was not suggestive despite differing skin tones of the persons featured]; People v. Quintana, 159 AD3d 1122 [3d Dept 2018] [photo array was not unduly suggestive even though defendant's neck tattoo was partially visible]. In the opinion of the Court, the pretrial photographic procedure was not unduly suggestive. The photo array was not exhibited to complainant in a suggestive manner, and it featured individuals similar in age and general physical characteristics to defendant. See People v. Richardson, 200 AD3d 984 [2d Dept 2021], lv denied 38 NY3d 930 [2022]; People v. Bell, 188 AD3d 904 [2d Dept 2020], lv denied 36 NY3d 1049 [2021]. This is especially so since the detective who conducted the photo procedure had no information concerning the crime herein nor the subject of the police investigation. Because the photographic procedure was not unduly suggestive or likely to taint the witness’s identification testimony, there is no basis for suppression. C. Suppression of Physical Evidence The Court of Appeals has repeatedly held that, under the New York State Constitution, ” [a]ll warrantless searches presumptively are unreasonable per se.” People v. Jimenez, 22 NY3d 717, 721 [2014]. Accordingly, a warrantless search incident to arrest of property within a defendant’s grabbable area will be deemed unreasonable unless it is: (a) contemporaneous with the arrest (People v. Anderson, 142 AD3d 713 [2d Dept 2016]; People v. Diaz, 107 AD3d 401 [1st Dept 2013]); and (b) justified by the presence of exigent circumstances.” People v. Gokey, 60 NY2d 309, 312 [1983]; People v. Smith, 59 NY2d 454, 458-59 [1983]. The Court of Appeals has identified two interests that may establish exigent circumstances: “the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment.” Gokey, 60 NY2d at 312; Jimenez, 22 NY3d at 722. Thus, to justify the warrantless search of a bag or other closed container on defendant’s person, the People must establish that the police, at the time of the arrest, had an objectively reasonable belief that the suspect might gain possession of a weapon or be able to destroy evidence in the bag or container. Anderson, 142 AD3d at 714-715; People v. Alvarado, 126 AD3d 803, 805 [2d Dept 2015]. The Appellate Division has repeatedly held that the search of a defendant’s wallet must meet this standard. People v. Costan, 197 AD3d 716 [2d Dept 2021], lv denied 37 NY3d 1095 [2021]; People v. Espinoza, 174 AD3d 1062 [3d Dept 2019]; People v. Geddes-Kelly, 163 AD3d 716 [2d Dept 2018]; see also People v. Kilkenny, 62 Misc 3d 149(A) [App Term, 1st Dept, 1st Jud Dist 2019]. Detective Chouddery testified that, soon after arresting and handcuffing defendant, he “conducted a search of any illegal contraband” and found oxycodone in defendant’s wallet. The People elicited no testimony to support an objectively reasonable view that the police believed that defendant was armed, that defendant was resisting arrest, or that he was attempting to access or destroy evidence. Accordingly, the Court finds that the People have failed to establish the exigent circumstances necessary to support a warrantless search of defendant’s wallet. Had the oxycodone been discovered in defendant’s pockets (Geddes-Kelly, 163 AD3d at 717; People v. Wilmet, 161 AD3d 1587 [4th Dept 2018]) or “as part of a stationhouse inspection of an arrestee’s personal effects” (Costan, 197 AD3d at 723; People v. Cole, 151 AD3d 662, 663 [1st Dept 2017]), it likely would have been admissible. However, because that was not the case here, the evidence from the wallet must be suppressed. Since the criminal possession charge was wholly based on evidence and statements (see below) obtained directly as a result of the unlawful search of defendant’s wallet, that count of the indictment must be dismissed. People v. White, 159 AD3d 741 [2d Dept 2018]; Diaz, 107 AD3d at 402; People v. Mitchell, 2 AD3d 145, 148-149 [1st Dept 2003]. D. Suppression of Statements When a defendant is the subject of a custodial interrogation by the police, it is beyond well-settled that the police must administer Miranda warnings to the defendant. People v. Paulman, 5 NY3d 122 [2005]; see also Miranda v. Arizona, 384 US 436 [1966]. Miranda rights can be waived by the defendant provided that such waiver is made “knowingly, intelligently, and voluntarily.” People v. Stevens, 203 AD3d 1181 [2d Dept 2022]. Such a waiver is determined “upon an inquiry into the totality of the circumstances surrounding the interrogation, including an evaluation of the defendant’s age, experience, education, background, and intelligence.” People v. Santos, 112 AD3d 757, 758 [2d Dept 2013]. The People bear the burden of establishing, beyond a reasonable doubt, that defendant voluntarily waived those rights. See People v. Smith, 199 AD3d 1023 [2d Dept 2021]. Here, Detective Chouddery read defendant Miranda warnings prior to questioning him. Defendant stated that he understood his rights and freely agreed to answer questions. Detective Chouddery did not pressure or coerce defendant to waive his rights and there is no evidence that defendant, under all the circumstances, failed to understand the nature of his waiver. Accordingly, most of the statements made by defendant during the interrogation are admissible. However, since the Court has deemed the search of defendant’s wallet to be unlawful, defendant’s statements regarding the oxycodone must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 US 471 [1963]; People v. Dubuisson, 206 AD3d 757 [2d Dept 2022]; People v. Bailey, 164 AD3d 815 [2d Dept 2018]. Finally, the statement made by defendant during the fingerprinting process is admissible. Statements by a defendant that are “spontaneous and not the product of custodial interrogation or its functional equivalent” are admissible. People v. Roper, 208 AD2d 571, 571 [2d Dept 1994]; People v. Latimer, 75 AD3d 562, 563 [2d Dept 2010]; People v. Tyrell, 67 AD3d 827, 828 [2d Dept 2009]; People v. Hinds, 13 AD3d 554, 554 [2d Dept 2004]. While defendant was being fingerprinted, he asked Detective Chouddery, without any prompting, how the complainant could have identified him if she did not know the identity of her attacker. Detective Chouddery was not asking defendant any questions about the case at that time and did not engage in any conduct “designed to elicit a statement from [defendant].” People v. Perkins, 160 AD3d 1455, 1457 [4th Dept 2018]; People v. Hylton, 198 AD2d 301, 301 [2d Dept 1993]; see also People v. Rivers, 56 NY2d 476 [1982]. This statement was therefore not the product of police activity (See People v. Giddens, 161 AD3d 1191, 1193 [2d Dept 2018]) and is not subject to suppression. Accordingly, the fifth count of the indictment is dismissed, defendant’s motion to suppress statements is granted in part and denied in part, his motion to suppress identification evidence is denied, and his motion to suppress the evidence recovered from the wallet is granted. This constitutes the decision and order of the Court. The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney. Dated: July 18, 2022
