Decision and Order On December 5, December 8, and December 12, 2022 this Court conducted a combined Dunaway, Huntley hearing.1 Detectives Cassinda Cadogan, Kevin Fulham, Nicholas Cadavid, and Police Officer Anthony Rosario, all of the New York City Police Department (NYPD), testified for the People. The defendant did not present any evidence. The parties made oral arguments at the conclusion of testimony on December 12, 2022, supplemented with case law. The defendant’s motion is granted in part and denied in part. The Court credits the testimony of the People’s witnesses and makes the following findings of fact and conclusions of law. Findings of Fact Police Officer Anthony Rosario testified that he has been employed by the NYPD for approximately 7 years, currently assigned to Transit District 33 (TD-33). On August 11, 2021 he reported to work for a 5:00 AM to 1:35 PM tour and was informed by the desk officer that they were looking for someone in a “yellow jersey, green pants and black sneakers” whom they believed to be “Dashawn Lewis” for a “possible rape” (Tr. 12/5/22 at 9, 39). Officer Rosario was familiar with Lewis, whom he identified at the hearing as the defendant, due to several prior encounters with him “selling swipes” for entry into the subway system at the Euclid Avenue station. (Tr. 12/5/22 at 9-10). Officer Rosario proceeded to the mezzanine area of the Broadway Junction station with Sergeant Dennehy, Detective Cadogan and Officer Luna (nee Brito) where they waited for a train to Euclid Avenue to begin their investigation. They were all in plain clothes. At approximately 5:40 AM Officer Rosario observed the defendant, who was shirtless, exit the transit system at Broadway Junction with a second male, Kawun Bradley, whom Officer Rosario also recognized from prior encounters at the Euclid Avenue station. After the defendant and Bradley left the Broadway station, they returned, and Officer Rosario observed them enter through the emergency exit gate without paying their fare. At that time, Officer Rosario placed the defendant under arrest. The People introduced a DVD as People’s 1, containing Officer Rosario’s bodycam video depicting the arrest of the defendant and his lodging at TD-33. Bradley can also be seen being taken into custody in People’s 1. The bodycam video depicts an extremely agitated defendant repeatedly saying “are you f**cking kidding me” and telling the officers “[they're] bugging.” In addition to complaining to everyone he encountered about being arrested for turnstile jumping, defendant complained about the tightness of his handcuffs and the fitting of his mask and demanded that he be placed in a cell with Bradley. Officer Rosario indicated that he removed his weapon before the defendant was lodged in the cells, no weapons were ever drawn, and the defendant was not threatened. After the defendant was placed in the cell, the video shows him removing his belt and laces and giving them to Rosario. Rosario subsequently placed Bradley into the same cell. The defendant was offered snacks, McDonald’s, and water, which he declined. Rosario was in and out of the cell area at TD-33 while he was preparing his paperwork and at approximately 9:15 and 9:20 AM he heard the defendant make two statements. The first, that “he wished this bitch did say I raped her, he will kill her” and second, that “if somebody did get raped, they would take my clothes and send it to the hospital.” (Tr. 12/5/22 at 20-21). Officer Rosario said the defendant was talkative but as he was focused on processing the arrest, he did not recall all of his comments. Neither Rosario nor anyone else was questioning the defendant at the time he made the statements about rape and neither Rosario nor anyone else had mentioned an alleged rape. Rosario notified Special Victims that the defendant was in custody and subsequently drove with two Special Victims detectives and the defendant back to their command at the 84th Precinct; the defendant was not asked about the case, promised anything, or threatened. A Special Victims detective provided food and drink to the defendant and Rosario took him to the bathroom. Detective Cadogan testified that she has been employed by the NYPD since January 2015, currently assigned to the Crime Analysis Office since November 2021. On August 11, 2021, she was working a 5:00 AM to 1:35 PM tour at TD-33. When she arrived she was informed that a person fitting the description of Dashawn Lewis was wanted for a rape in the subway. She knew Lewis, whom she identified at the hearing as the defendant, from numerous interactions with him at both the Rockaway Parkway and Euclid Avenue train stations, including arresting him for an assault in 2019. At approximately 5:40 AM she was waiting with Sergeant Dennehy and Officers Rosario and Luna at the Broadway Junction Station for the train to Euclid Avenue. She saw the defendant and Kawun Bradley, whom she also knew from the Euclid station, coming from the A train platform and exiting the station. Shortly thereafter she observed the defendant and Bradley return to the station and enter through an emergency exit gate without paying the fare. She followed them up the escalator where Officer Rosario arrested defendant and Officer Luna arrested Bradley. She activated her bodycam upon the stop of the defendant. The People introduced Officer Luna’s bodycam as People’s 5 in evidence as her version began slightly earlier than Rosario’s.2 Detective Cadogan testified that the defendant asked, in substance, why he was being arrested (12/8/22 at 18). As the recording in People’s 5 begins, Detective Cadogan is heard in substance saying “you didn’t pay your fare, Dashawn, why didn’t you pay your fare?” (12/8/22 at 19). The defendant responded in substance, “Are you serious?” and “Are you f**king kidding me?” among other things. The defendant did not specifically respond to the question of “why” he did not pay the fare. After Detective Cadogan is heard saying in substance “next time pay your fare,” the defendant starts screaming in substance “are you stupid…you’re buggin…you ain’t locking me up for hopping no turnstile…you lying.” The defendant continued arguing that “nobody gets locked up for jumping the turnstile to which Detective Cadogan responded “it happens all the time.” The defendant continued to scream and argue about getting locked up for jumping a turnstile during the entire walk into TD-33. As the defendant was brought before the Lieutenant at the desk, he asked “how am I being locked up for hopping a turnstile.” The Lieutenant responded: “because you walked through the exit door” to which the defendant screamed “so what?” Still visibly agitated, the defendant stated in substance “that [he] don’t give a f**k that [he] walked through the exit gate or not.” The defendant continued to ask what he was being arrested for and was continually told it was for theft of services. As People’s 6 concluded, the Lieutenant, who had agreed to place them together in the cells, entered and asked that the officers be shown respect in the same way that he showed Bradley and the defendant respect by putting them together. The Lieutenant then offered the defendant and Bradley snacks, food and drink, which were refused by both. About an hour and a half later, at approximately 7:05 am, defendant, while in the cell with Bradley, asked: “you guys going to charge me with 130.30, you know I’m a sex offender?”3 (12/5/22 at 61). At approximately 7:20 AM the defendant stated: “can’t be rape, bitch had it in her mouth, and she didn’t even bite” (12/5/22 at 62). More than two and a half hours later, at 9:28 AM, the defendant stated “Ms. Elizabeth, what’s her last name, it’s a sexy last name, is her apartment number on her ID” (12/5/22 at 62). Neither Detective Cadogan, nor any other officer, had asked the defendant anything prior to the statements, nor did she or anyone else respond to the things he said. She indicated that the defendant was speaking randomly, and his statements did not seem to be directed to anyone in particular, rather, he was “just mumbling…talking into the air” (12/5/22 at 63). At no point did she, or anyone else, discuss an investigation into a rape or sexual assault during the time she was with him.4 Detective Kevin Fulham testified that he has been employed by the NYPD for approximately 11 years, assigned to various roles within the Special Victims Division for the past 5 years. On August 11, 2021 he was assigned to the Transit Special Victims Squad and he began his tour at 6:00 AM when he was assigned an alleged rape within the transit system.5 Fulham subsequently proceeded to TD-33 with his partner for the day, Detective Kurishvili, and at approximately 10:30 AM, entered the TD-33 cell area and introduced himself to Dashawn Lewis, whom he identified as the defendant at the hearing. In addition to giving his name, he said that he was from the Special Victims Squad and asked if the defendant would come to the 84th Precinct to speak with him, to which the defendant replied “yes” (12/5/22 at 79-80). The defendant was brought out to the desk where he was checked out of TD-33 and transported to the 84th Precinct in an unmarked car. Detective Kurishvili drove, Officer Rosario was in the front passenger seat, with Detective Fulham and the defendant seated in the back seat. The defendant was handcuffed. There was no discussion of the case in the car, no threats or promises were made and no one’s weapon was drawn. The defendant asked for a cigarette, which Detective Fulham provided. Upon arrival at the 84th Precinct, the defendant was checked in at the desk and then lodged upstairs in the Detective Squad’s cells where his handcuffs were removed. At approximately 12:00 PM Detective Fulham took the defendant from the holding cell, still uncuffed, into an interview room where they took seats at opposite sides of a table. Detective Kurishvili sat down near the opposite wall.6 At 12:03 PM Detective Fulham read the defendant Miranda warnings from a card. The defendant responded “yes” to each question and ultimately agreed to speak to him. The defendant initially indicated he did not know why he was there only that he had been arrested for jumping a turnstile and that at the time he had been coming from Euclid and headed to Myrtle. Defendant indicated he had been at Euclid at midnight and was surprised to hear that an Officer Wilson had told Fulham that Wilson had told defendant to leave the Euclid station — the defendant denied having spoken to Wilson. Fulham showed the defendant a picture of the victim and the defendant indicated he did not know her from Euclid but rather from the Liberty Station on the C line.7 At that point the defendant said he did not want to talk about it anymore and asked for a lawyer. The interview ceased at 12:07 PM and the defendant was returned to the cell. Fulham subsequently took the defendant to be fingerprinted at which time the defendant used the bathroom.8 The defendant later indicated he was hungry and he was provided a sandwich. No threats or promises were made, nor were any weapons drawn. The defendant was taken from the cells at approximately 11:30 PM by Officer Ng in order to conduct a sexual offense evidence collection kit. Detective Nicholas Cadavid testified that he has been employed by the NYPD for approximately 14 and one-half years, assigned to Transit Special Victims Squad for the past seven years. At approximately 11:00 pm on August 11, 2021 he was working in the Transit Special Victims Squad and brought an individual by the name of Dashawn Lewis, whom he identified as the defendant at the hearing, from the 84th Precinct to Kings County Hospital to have a sex offender kit prepared pursuant to a court order. He was accompanied by Officer Ng — neither of them spoke with the defendant about the case, threatened, or made any promises to him nor did either officer ever draw their weapons. The defendant was escorted to a sexual examination room where two SART nurses performed the exam. Both officers were present in the room during the exam. The nurses explained to the defendant what they were doing but did not discuss the case or ask him any questions about it. The nurses took various swabs and fingernail scrapings describing what they were going to do as they did it. The defendant began to chew off his fingernails when they started swabbing his fingernails. No threats or promises were made by anyone during the exam, which lasted between 30 to 45 minutes. At one point during the exam the defendant stated they “weren’t going to find any semen because he had came in her mouth” (12/8/22 at 11). He was not being questioned by the officers or the nurses at the time of the statement. After the exam, as the officers were walking the defendant through the hallway back to their van, the defendant repeated the statement that they “were not going to find any semen because he came in her mouth” (12/8/22 at 13). The two statements were made minutes apart. Neither officer had asked the defendant anything prior to the statement nor did they respond to him. Conclusions of Law The Court fully credits the testimony of Police Officer Rosario and Detectives Cadogan, Fulham, and Cadavid. Dunaway The People have met their burden of demonstrating that the police had probable cause to arrest the defendant. Pursuant to Criminal Procedure Law Section 140.50, a police officer may stop an individual when the officer reasonably suspects that the individual has committed a crime. See Terry v. Ohio, 392 U.S. 1 (1968); People v. DeBour, 40 N.Y.2d 210 (1976); People v. Cantor, 36 N.Y.2d 106 (1975). Once the officers observed the defendant enter the transit system without paying the fare they had probable cause to arrest him, therefore, the People have met their burden of demonstrating that the police possessed probable cause to arrest the defendant.9 Huntley The defense argues that all of the noticed statements that the People seek to introduce in this case must be suppressed as violative of Miranda.10 Miranda warnings (see Miranda v. Arizona, 384 U.S. 436 [1966]) are required before a person in custody is subjected to interrogation by the police (see Rhode Island v. Innis, 446 U.S. 291, 297-302, [1980]; People v. Paulman, 5 N.Y.3d 122, 129, [2005]).” People v. Wortham, 37 N.Y.3d 407, 412-413 (2021). “The 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” (Paulman, 5 N.Y.3d at 129, quoting People v. Ferro, 63 N.Y.2d 316, 322, [1984],cert denied 472 U.S. 1007, [1985]; see Innis, 446 U.S. at 300-302; Wortham, supra at 413. The defendant argues that Detective Cadogan’s initial bodycam recorded statement “you didn’t pay your fare; Dashawn, why didn’t you pay your fare” made as the defendant was being handcuffed, constituted custodial interrogation without the benefit of Miranda warnings. As such, the defendant submits that all statements made thereafter were part of one continuous chain of events requiring suppression. The defendant further argues that the post-Miranda video recorded statement introduced as People’s 4, as well as the statements at Kings County Hospital, were not sufficiently attenuated from the initial Miranda violation. Finally, the defendant argues that the statements at Kings County Hospital must, alternatively, be suppressed as they were obtained after the defendant expressly invoked his right to counsel. The People argue that the defendant’s pre-Miranda statements were all spontaneous and voluntarily made and were not the result of custodial interrogation, or its functional equivalent, in violation of Miranda. Detective Cadogan’s comment regarding not paying the fare was rhetoric, the defendant was properly Mirandized and voluntarily agreed to speak to Detective Fulham. And, the statements at Kings County Hospital were spontaneously volunteered, or, in the alternative, were sufficiently attenuated. Pre-Miranda Bodycam Statements Related to the Initial Farebeat Arrest The defense makes two related arguments as to the initial bodycam statements of the defendant. According to Detective Cadogan, as the defendant was being placed under arrest and into handcuffs by Rosario, the defendant asked either why am I being handcuffed? or why am I being arrested?11 The defense first argues that, as this statement occurred prior to the audio contained on the bodycams submitted, it must be precluded, rather than suppressed, as violative of C.P.L. §710.30 in that it was not expressly noticed. The People argue that, as the defendant asked this same question repeatedly throughout the course of the recorded portions of the bodycams, the defense was provided with adequate notice. The defense additionally argues that regardless of whether the defendant initiated the dialogue, the question portion of Detective Cadogan’s statement constituted custodial interrogation in violation of Miranda. The Court credits Detective Cadogan’s testimony that the defendant asked “why” he was being handcuffed and/or arrested at the time of his arrest. Although it was not recorded on the bodycams introduced, the defendant repeatedly asked that and similar questions throughout, regardless of the response he received. As such the Court finds that the substance of the C.P.L. §710.30 notice provided was sufficient. The Court however finds that under the circumstances, the statement: Dashawn, why didn’t you pay your fare — regardless of whether it was in response to the defendant’s question or volunteered — constituted custodial interrogation as related to the crime of Theft of Services. The fact that the defendant may have initiated the exchange is of no moment. In evaluating whether a statement is spontaneous or the product of police interrogation, the inquiry is whether the statement “can be said to have been triggered by police conduct which should reasonably have been anticipated to evoke a declaration from the defendant.” (People v. Webb, 224 A.D.2d 464, 465, [2nd Dept 1996]). Here, the defendant was in custody when Detective Cadogan asked, why didn’t you pay the fare, which was arguably designed to elicit an incriminatory response regarding the theft of service and was made in the absence of Miranda. As such, this Court finds the People have failed to show that the defendant’s statements related to the theft of service were not triggered by Cadogan’s question.12 Accordingly, the defendant’s motion to suppress the statements from the time of his arrest at Broadway Junction until he was placed in the cells at TD-33, as captured on the bodycams, is granted. Pre-Miranda Oral Statements made in the TD-33 Cells Approximately one and one-half hours after the arrest on the subway platform for theft of service, the defendant, from the cells at TD-33 made a number of additional statements, wholly unrelated to the theft of service and wholly spontaneous. The first two statements were made in the presence of Detective Cadogan, to the effect of “you guys going to charge me with 130.30, you know I’m a sex offender?” and “can’t be rape, bitch had it in her mouth, and she didn’t even bite” (12/5/22 at 61-62). The next two statements made approximately three and one-half hours after Cadogan’s arguably rhetorical question regarding the theft of service, that “he wished this bitch did say I raped her, he will kill her” and second, that “if somebody did get raped, they would take my clothes and send it to the hospital” were overheard by Officer Rosario (12/5/22 at 20-21). Finally, nearly four hours after the arrest, at approximately 9:28 AM, again in the presence of Cadogan, defendant stated that “Ms. Elizabeth, what’s her last name, it’s a sexy last name, is her apartment number on her ID” (12/5/22 at 62). None of the defendant’s statements were related to Cadogan’s question from the subway platform at 5:40 AM that morning related to the theft of service. Furthermore, none of the five statements were made in response to any questions by the police and no officer responded. The police are not obligated to silence a talkative defendant. The police are not required to take affirmative steps, by gag or otherwise, to prevent a talkative person in custody from making incriminating statements. See People v. Maerling, supra 302-303; People v. Lanahan, supra. Volunteered statements are admissible provided the defendant spoke with genuine spontaneity “and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed” People v. Maerling, supra 302-303; People v. Lanahan, supra; People v. Rivers, 56 N.Y.2d 476, 479 [1982]). It is clear that the statements in the cells, wholly unrelated to the theft of service, and uttered without questioning, were spontaneous and voluntarily made without any provocation or inducement by the police. Furthermore, this Court finds that the five statements in the cells are sufficiently attenuated from the earlier question related to the theft of service to have purged any initial taint. A statement is attenuated when it follows a “definite pronounced break” in interrogation, so that an individual is no longer under the influence of prior questioning”. People v. Chapple, 38 N.Y.2d 112, 115 (1975). Factors to consider in determining whether a statement is attenuated include: (1) the time elapsed between the statements; (2) whether there is a change in location of the interrogation; (3) whether the same police personnel are present during each statement; and, (4) whether there is a change in the nature of the interrogation. See People v, Paulman, 5 N.Y.3d 122 (2005). It is clear from the testimony that the defendant was not under the influence of the prior question about paying the subway fare when he made his statements in the cells at TD-33, in that: (1) the first statement was made about one and one-half hours after Cadogan had asked him about the theft of service; (2) the five statements were made after the defendant had been placed in the cells within the TD-33 complex, whereas Cadogan’s question had been asked while they were on the subway platform; (3) although Cadogan and Rosario were in the vicinity of both locations neither Cadogan nor Rosario were speaking to the defendant, let alone asking him questions, at the time he volunteered his statements in the cells, nor did they respond to the things he said; and, (4) the defendant’s statements regarding the rape were entirely unrelated in nature to the initial question concerning the theft of service, and, again, there was no interrogation. As such, the Court finds there was a definite pronounced break between the initial question at Broadway Junction and the subsequent statements made in the cells at TD-33, thereby returning the defendant to the status of a person who was no longer under the influence of the prior questioning. See, Paulman, supra. Accordingly, the defendant’s motion to suppress is denied and the five statements in the TD-33 cells overheard by Officer Rosario and Detective Cadogan are admissible. Post-Miranda Video Recorded Statement to Detective Fulham The uncontradicted hearing testimony and the video recording, introduced as People’s 4, establish that the defendant was adequately advised of his Miranda rights, waived them and agreed to speak to Detective Fulham. The defendant was not handcuffed, was not threatened or promised anything, the detectives’ weapons were never drawn, and, just four minutes into the interview the defendant stated that he did not want to discuss the case further and requested an attorney, thereby underscoring the knowing, willing and voluntary nature of his statements. Detective Fulham properly ended the interview immediately after the defendant requested an attorney. Additionally, the defendant was offered food and drink at TD-33, taken to the bathroom at both TD-33 and at the 84th Precinct and was provided with cigarettes by Fulham. Furthermore, despite the Court’s finding of an earlier Miranda violation, based on the question posed by Detective Cadogan regarding the theft of service, the Court finds that this statement, as with the statements in the cells, was sufficiently attenuated from the earlier question to render it admissible. As stated above, a statement is attenuated when it follows a “definite pronounced break” in interrogation, so that an individual is no longer under the influence of prior questioning”. People v. Chapple, supra. Again, the factors to consider in determining whether a statement is attenuated include: (1) the time elapsed between the statements; (2) whether there is a change in location of the interrogation; (3) whether the same police personnel are present during each statement; and, (4) whether there is a change in the nature of the interrogation. See People v, Paulman, supra. With respect to the video recorded statement: (1) there was more than a six hour break between the initial question about the theft of services and the issuance of Miranda warnings;(2) the interview was conducted at a different location, the 84th Precinct, and not at Broadway Junction/TD-33; (3) Detectives Fulham and Kurishvili, conducted the interview and neither Detective Cadogan nor Officer Rosario were present; (4) the subject matter of Detective Cadogan’s question had nothing to do with the rape that was the primary subject matter of the Mirandized interview. Accordingly, the defendant’s motion to suppress is denied and the statement to Detective Fulham is admissible. Oral Statements at Kings County Hospital made in the presence of Detective Cadavid As with the defendant’s earlier pre-Miranda statements in the cells at TD-33, the defendant’s statements at the hospital were not in response to police questioning, nor were they the result of inducement, provocation, or encouragement — they were spontaneous. See, People v. Grimaldi, 52 N.Y.2d 611, 617 (1981); People v. Maerling, 46 N.Y.2d 289, 302-303 (1978). The defendant’s identical statements that they “were not going to find any semen because he came in her mouth,” made to the SART nurses and again in the hallway, in the presence of Detective Cadavid, were spontaneously volunteered. Although the defendant had previously requested an attorney, the “right to counsel was intended to provide the accused with added protection by prohibiting the police, and prosecutors, from questioning him in the absence of counsel when he had previously asserted the right during the police investigation.” People v. Krom, 61 N.Y.2d 187, 200 (1984). Here, no one was questioning the defendant. “The…constitutional right to counsel is also subject to limitations dictated by reason and policy” as such, “the police are not obligated to silence a talkative defendant,” and therefore, “spontaneous statements made after the right to counsel has indelibly attached are admissible.” Id. at 199; see also People v. Rivers, supra; People v. Maerling, supra, People v. Kaye, 25 N.Y.2d 139 (1969) (court permitted the prosecution to use a confession blurted out by a defendant after the police had been instructed by his lawyer not to question him, as the confession was spontaneous). So, too, the statements at the hospital were attenuated from the earlier Miranda violation in that: (1) they took place nearly 18 hours after the initial question; (2) were at a different location than any of the prior statements; (3) neither Detective Cadavid nor Officer Ng were present at Broadway Junction/TD-33 nor had any involvement with the theft of service; and, (4) the subject matter of the defendant’s statements, which were not the result of any questions posed to him, were unrelated to the theft of service. Accordingly, the defendant’s motion to suppress is denied and the defendant’s statements at Kings County Hospital are admissible. Conclusion The defendant’s motion to preclude is granted to the limited extent of precluding the introduction of two noticed statements, identified as numbers four and seven in the C.P.L. §710.30(1)(a) notice, for which the People presented no evidence at the hearing. The defendant’s motion to suppress is granted as to the statements made at the time of his arrest on the bodycam, but otherwise denied as discussed supra. This constitutes the Decision and Order of this Court. ). On the other hand, not every comment made by a police officer in response to an inquiry by the defendant can be said to constitute interrogation, merely because it is followed by an incriminating statement from the defendant. People v. Lynes, 49 N.Y.2d 286, 294-295; People v. Rivers, 56 N.Y.2d 476, 479 (1982). see also People v. Troisi, 224 AD2d 559, 559, (2nd Dept 1996) (lower court was correct in denying the defendant’s motion to suppress his statements when those statements were made “in response to being informed that he was under arrest”). Furthermore, the testimony here shows that the defendant not only initiated the conversation, but he furthered it. Even after being told why he was under arrest, the defendant continued to ask questions about the arrest that the police answered with one sentence responses, which were “declarative in nature and would not normally call for a reply.” People v. Dove, 176 AD2d 266, 267, (2nd Dept 1991). This notwithstanding, the defendant pursued the conversation by continuing to make statements. Of particular import, the defendant not only did not give an incriminating response to the question of “why he didn’t pay his fare” his statements were not responsive to the question at all. His responses all expressed his disbelief in being arrested for jumping a turnstile, repeatedly asking if they were “f**cking serious,” stating that they were “lying”, and adamantly declaring that “nobody gets locked up for hopping a turnstile.” So, too, Bradley, who was not under investigation for the rape, was also arrested for walking through the entry gate and expressed very similar opinions about his arrest. The bodycams clearly show that it was the defendant directing the conversation throughout, not the police. To that point, when he is brought before the Lieutenant at the desk, he again asks “how am I being locked up for hopping a turnstile?” When the Lieutenant calmly responded “because you walked through the exit door” the defendant demonstrably screamed “so what?” Although the Court of Appeals has noted that incriminatory statements are not rendered spontaneous simply because they are precipitated by subtle forms of interrogation rather than blatantly coercive techniques (see People v. Garofolo, 46 N.Y.2d 592, 603-604; People v. Maerling, 46 N.Y.2d 289, 301-303; People v. Howard, 47 N.Y.2d 988, 989), the nature of the single question posed to the defendant by Detective Cadogan does not preclude a finding of spontaneity to the statements that follow. The Court first notes that defense counsel moved to preclude what was alleged to have been an unnoticed statement of the defendant to the effect of “why was he being arrested” that preceded the audio captured on the three bodycams introduced in evidence. As such, the first sounds heard were Detective Cadogan telling the defendant that he didn’t pay his fare and then asking him why he did not pay his fare. Even, accepting as true that the defendant asked the question, the defendant was clearly in custody at the time of the Detectives response and as such the question portion as to “why he did not pay his fare” was improper as it constituted custodial interrogation triggering the defendant’s rights under Miranda. As the defendant was not provided Miranda warnings prior to his response the defendant’s statements that follow there-from must be suppressed. Pre-Miranda Oral Statements made in the presence of Officer Rosario in the Cells Pre-Miranda Oral Statements made in the presence of Detective Cadogan in the Cells Post-Miranda Video Recorded Statement to Detective Fulham The uncontradicted hearing testimony and the video recording introduced as People’s 4 establish that the defendant was adequately advised of his Miranda rights and waived them, see Miranda v. Arizona, 384 U.S. 436 (1966); People v. Anderson, 146 A.D.2d 638 (2d Dept. 1989). The defendant subsequently requested a lawyer four minutes into the interview, at which time the interview was ended and no further questions were asked. Oral Statements at Kings County Hospital made in the presence of Detective Cadavid Dated: February 6, 2023
