Opinion
33817C-2005.
Decided June 17, 2008.
HON. ROBERT T. JOHNSON, District Attorney, Bronx County, Bronx, NY, Brian Reese, Of Counsel, for the People.
DAVID GOLDSTEIN, ESQ., Bronx, NY, for the Defendant.
Defendant was indicted and charged with one count of Arson in the Second Degree (PL § 150.15), one count of Arson in the Third Degree (PL § 150.10), and one count of Reckless Endangerment in the First Degree (PL § 120.25). He contends that the police did not have probable cause to place him under arrest and has moved to suppress certain statements attributed to him.
A combined pre-trial Dunaway/Huntley suppression hearing (granted by a court of coordinate jurisdiction) was conducted before this court on March 25, 2008. The People called two witnesses, Police Officer Jesus Cortorreal of the New York City Police Department and Mr. Raymond Ott, a Fire Marshal with the New York City Fire Department. The hearing was adjourned several times for the People to provide an additional witness; however, the People choose to rest without calling this witness. Defendant presented no witnesses.
FINDINGS OF FACT
The court finds the testimony of Police Officer Cortorreal and Fire Marshal Ott to have been credible. On June 25, 2005, Officer Cortorreal, a five-year veteran of the NYPD, was assigned to the 48th Precinct. On that day, at approximately 9:32 A.M., he received a radio run of a family dispute at 1828 Waterloo Place, Bronx County. Upon arrival at the location, he spoke with a male Hispanic, in his 50's, about 5'7", who was in front of the house. He did not ask the individual his name and did not ask him what happened; however, the individual told him that he had called the police as a result of an argument with his son but that he did not wish to file a complaint as his son had already left. Officer Cortorreal then left the location.
At approximately 9:53 A.M. on the same day, Officer Cortorreal received a second radio run to 1827 Waterloo Place, Bronx County. This location is across the street from 1828 Waterloo Place. On arrival, he observed black smoke coming out of the basement from the house at 1827 Waterloo Place. Two minutes later, the Fire Department arrived. A male Hispanic in his 20's was in front of the location. He was very upset and was screaming, saying that it was his fault that people were unable to get out of the house. The individual to whom he had spoken earlier that day approached him and told him that that was his son, Carlos Baez, Jr.
Officer Cortorreal testified that Sergeant O'Rourke told him that he had put defendant's name over the police radio and that his name "popped up" as having an outstanding warrant. Defendant was subsequently arrested at approximately 11:07 A.M. and removed to the 48th Precinct. Officer Cortorreal testified that when he was at the scene he did not know defendant's name; he was also unable to make an in-court identification of defendant. However, he testified that the person the sergeant told him had an outstanding warrant was the same person he took from Waterloo Place back to the 48th Precinct. At the 48th Precinct, Officer Cortorreal took pedigree information from defendant where defendant provided him with his name, date of birth (February 28, 1980) and an address (1828 Waterloo Place, Bronx County). A copy of the outstanding warrant was subsequently printed (People's Exhibit 3 in evidence).
Raymond Ott, a 25-year veteran firefighter with the New York City Fire Department, testified that he has been a fire marshal for 15 years and has responded to approximately 600 fires per year.
On June 25, 2005, he responded to the 48th Precinct between 11:15 and 11:30 A.M., after being notified that the police had arrested an individual in connection with a fire at Waterloo Place. Upon arrival at the Precinct, he was informed that defendant had been arrested on an outstanding warrant. He asked the Desk Sergeant to hold defendant until he could come back and interview him. At approximately 11:30 A.M., he went to 1827 Waterloo Place, conducted a preliminary examination of the outside of the building, and spoke to Nathan Davis and Oscar Torres, occupants of the building, and Carlos Baez, Sr., all of whom were outside of the premises.
Mr. Davis told him that he was going to the store when he bumped into defendant, the landlord's son. Defendant told Mr. Davis that the police were coming and asked if he could stay in the house until the police left. Upon Mr. Davis's return from the store several minutes later, he went up to the second floor landing and had a brief conversation with defendant, who was looking out the window waiting for the police to leave. A few minutes later, after entering his room, Mr. Davis smelled smoke; he opened his door, observed that the entire second floor was filled with smoke, he then banged on the common wall to Mr. Torres's room yelling "fire." Mr. Davis, his girlfriend, and Mr. Torres went to the head of the stairs, exited out the window, onto the first floor roof, jumped onto a tree, approximately five feet away, and climbed down to the ground. They saw defendant on the southeast side of the building yelling, "I didn't do the fire, I didn't do the fire."
Oscar Torres told Fire Marshal Ott that he was in his room when he heard Mr. Davis yelling. He opened his door and saw the smoke; he could not go down the stairs, so he went out the window and down a tree.
Carlos Baez, Sr., told him that he and defendant were renovating the house. The day before, he got into an argument with defendant and called the police, but his son left before the police arrived. The next day he got into another argument with defendant and once again called the police. Defendant then told his father that if he wanted to call the police, he would give him something to call the police about. He told him that the would burn the house down with the people in it.
After completing a physical examination of the building, Fire Marshal Ott collected evidence and took photographs of the scene. Following his investigation, he was able to determine that the cause of the fire was non-accidental and that it had originated in a storage room, in the basement, where cabinets were kept. He determined the point of origin of the fire was ignitable liquid introduced into to the contents of that storage room.
At approximately 6:30 P.M., he returned to the 48th Precinct, spoke to defendant and requested his clothing. His purpose in speaking with defendant at that time was to collect his clothing for evidence. Fire Marshal Ott testified that if defendant had failed to comply, he would have had to call ESU to have the clothing removed. Defendant asked him what he was going to do with his clothing and he explained that he was going to send it to the laboratory for analysis. Defendant responded by laughing, saying that he was not going to find anything because he had changed his clothes at his father's house.
At approximately 9:00 P.M. on June 25, 2005 at the 48th Precinct, he read defendant his Miranda warnings from a piece of paper entered into evidence as People's Exhibit 1. Defendant orally acknowledged to Fire Marshal Ott his understanding of each right as read to him and his responses were memoralized by Fire Marshal Ott, by writing the word "yes" and by defendant placing his initials next to the word "yes," after the recitation to each of the questions in People's Exhibit 1. After defendant was advised of the warnings and after defendant answered all six questions in the affirmative, defendant then made an oral statement. Fire Marshal Ott testified that this statement was not memoralized. In this oral statement, defendant said that he was working with his father renovating the house. The day before they were drinking; they got into an argument and his father called the police. He then left. His father went to bed when he came home; he stayed up watching TV and had the radio on. At approximately 8:00 A.M. they got into an argument again, his father called the police again, so he left and was hiding in the house next door, when he ran into the black guy, Mr. Davis. He stayed there until the police left and he asked to go stay on the second floor and get water or something out of the kitchen. Fire Marshal Ott testified that he asked defendant to write this statement down to which defendant agreed. However, defendant told Fire Marshal Ott that he could not write, so defendant dictated a statement to him and he wrote it down on a piece of paper (People's Exhibit 2).
At the hearing, defendant argued that the oral statement which preceded the dictated statement was unnoticed and moved for preclusion. The People responded that in their Voluntary Disclosure Form, this statement was noticed as "oral statement reduced to writing"(see People's Exhibit 2). Fire Marshal Ott testified that there was "fourth" statement and the People have consented to preclusion of a "fourth statement." However, based on the testimony at the hearing, this court concludes that there was one pre-warning statement and two post-warning statements. This first post-warning statement was essentially repeated by defendant, enabling Fire Marshal Ott to reduce it to writing (see People's Exhibit 2). To the extent that this oral statement omits or contains information not included in People's Exhibit 2, this court finds that it is substantially consistent with the noticed written statement in People's Exhibit 2 and that preclusion is not warranted.
While Fire Marshal Ott was getting paper, defendant made another oral statement to him, the sum and substance of which was: "You think I'm crazy. I would burn down my father's house? I cut his face last year. I got to live with that the rest of my life. My father is always putting me down."
CONCLUSIONS OF LAW
I. PROBABLE CAUSE
When an arrest is challenged by a motion to suppress, the burden is on the People to establish that probable cause existed. People v Ketcham, 93 NY2d 416 (1999); People v Ramirez-Portoreal, 88 NY2d 99 (1996). Here, the People demonstrated that defendant was taken into custody pursuant to a valid outstanding warrant. Under the fellow officer rule, an arrest is lawful, "even if an arresting officer lacks personal knowledge sufficient to establish probable cause," so long as that officer "acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest." People v Perez , 47 AD3d 1071 (3rd Dept 2008); People v Eastman , 32 AD3d 965 (2nd Dept 2006); People v Bell , 5 AD3d 858 (3rd Dept 2004); People v Williams, 305 AD2d 802 (3rd Dept 2003); People v Samuels, 270 AD2d 779 (3rd Dept 2000); People v Ketcham, 93 NY2d 416 (1999); People v Ramirez-Portoreal, 88 NY2d 99 (1996); People v Rosario, 78 NY2d 583 (1991).
Officer Cortorreal testified that Sergeant O'Rourke told him that he put defendant's name over the police radio and that defendant had an outstanding warrant. Probable cause may be demonstrated on the basis of reliable hearsay (see Ketcham, supra) and in this case, Officer Cortorreal was entitled to rely upon the strength of the information communicated to him by another police officer that a certain individual was the subject of an outstanding warrant. People v Boone, 269 AD2d 459 (2nd Dept 2000); People v Ebron, 275 AD2d 490 (3rd Dept 2000); People v Jennings, 54 NY2d 518 (1981).
Neither the absence of testimony from Sergeant O'Rourke, nor the fact that Officer Cortorreal did not know defendant's name at the time he place him under arrest, renders defendant's arrest illegal. Officer Cortorreal testified that in making a determination as to whether an individual has an outstanding warrant, the individual's name, date of birth and, sometimes, gender is needed. The only reasonable conclusion from the evidence elicited at this hearing is that Sergeant O'Rourke was in possession of that information. Significantly, Officer Cortorreal testified that the person the sergeant told him had an outstanding warrant was the same person he took from Waterloo Place back to the 48th Precinct. Furthermore, the officer directing a defendant's arrest does not have to communicate the probable cause basis for the arrest to the arresting officer; instead, the fellow officer rule is satisfied when the officer directing the arrest possessed probable cause at the time the arrest is ordered. People v Williams, 305 AD2d at 802 (3rd Dept 2003); People v Ramirez-Portoreal, 88 NY2d 99 (1996); People v Rosario, 78 NY2d 583 (1991). Here, Sergeant O'Rourke conveyed the information he received over the police radio, which was received from Central Dispatch. Under the fellow officer rule, where the transmission furnished probable cause, the sender's knowledge is imputed to the receiver, who then presumptively possesses probable cause to make the arrest. This presumption is only rebutted when the defendant makes a specific challenge to the knowledge of the sender. People v Lypka, 36 NY2d 210 (1975).
Here, defendant failed to challenge the reliability or to otherwise allege that the information conveyed to the arresting officer by the sergeant was defective; therefore, the presumption of probable cause remained intact. People v Jenkins, 47 NY2d 722 (1979); People v Peters, 136 AD2d 750 (2nd Dept 1988). Accordingly, Officer Cortorreal's arrest of defendant based upon his communication with Sergeant O'Rourke was supported by probable cause and thus lawful.
II. DEFENDANT'S STATEMENTS
As to the Huntley portion of the hearing, the People have the burden of proving the voluntariness of a statement beyond a reasonable doubt. People v Huntley, 15 NY2d 72 (1965); People v Anderson, 69 NY2d 651 (1986); People v Witherspoon, 66 NY2d 973 (1985).
Pre-Warning Statement:
The People argue that defendant's pre- Miranda statement was spontaneous. Spontaneity in the context of the right to pre-interrogation warnings turns on whether a statement made by defendant was the product of the express questioning or its functional equivalent. Proof that defendant was interrogated requires testimony that he was asked questions which a reasonable police officer would believe might evoke an incriminating response. Miranda v Arizona, 385 US 436 (1966); Rhode Island v Innis, 446 US 291,301 (1980); People v Lynes, 49 NY2d 286 (1980); People v Ferro, 63 NY2d 316, 322 (1984); People v Huffman, 61 NY2d 795(1984).
The test for whether a police officer's statements were a subtle form of interrogation, requires the court to determine whether defendant's statement can be said to have been triggered by police conduct which should have reasonably been anticipated to evoke the declaration from defendant. People v Lynes, 49 NY2d 286 (1980). Applying these standards and these tests, the court concludes that defendant's pre-warning statement was spontaneous and not induced by improper police interrogation or its functional equivalent. Fire Marshal Ott testified that he asked defendant for his clothing and that his purpose in speaking with defendant was to voluntarily obtain his clothing to send it for laboratory analysis. Defendant response that he had changed his clothing to Fire Marshal Ott's request for his clothing can in no way be viewed as the result of the functional equivalent of interrogation. Statements which are volunteered or are otherwise spontaneously made are admissible even if the person is in custody. People v Roucchio, 52 NY2d 759 (1980); People v Plock 146 AD2d 652 appl.denied 73 NY2d 981 (1989).
Post-Warning Statements:
As to defendant's post- Miranda statements, in determining whether defendant made a knowing and intelligent waiver of his Miranda rights, it is necessary to review the totality of the circumstances surrounding the waiver to determine if the People have met their burden in proven the issue beyond a reasonable doubt. People v Woods, 89 AD2d 1022 (2nd Dept 1982).
Where a defendant indicates understanding of Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant implicitly waived those rights." People v Sirno, 76 NY2d 967 (1990).
Here, defendant was read his Miranda warnings by Fire Marshal Ott. The People produced evidence, in the form of testimony and writing:(1) showing that warnings were read to defendant; (2) defendant's affirmative replies that he understood each and every Miranda right read to him and acknowledged his understanding by initialing the form in multiple places; (3) that defendant wished to waive those rights; and (4) defendant then voluntarily made the statements.
The court finds that the People have met their burden in proving beyond a reasonable doubt that defendant freely, intelligently and voluntarily waived his right and agreed to make the oral and written statements. Accordingly, defendant's motion to suppress his statements is denied in its entirety.
This opinion constitutes the decision and order of the court.