Opinion
2862-2009
05-19-2011
The People of the State of New York, Plaintiff, v. Ibrahim Keita, Defendant.
Appearances of Counsel: Toni Messina, Esq. Counsel for the Defendant Eric Charten Assistant District Attorney Office of the Bronx District Attorney
Appearances of Counsel:
Toni Messina, Esq. Counsel for the Defendant
Eric Charten Assistant District Attorney Office of the Bronx District Attorney
Richard Lee Price, J.
Defendant is charged with two counts of criminal possession of a forged instrument in the second degree (PL 170.25), grand larceny in the third degree (Pl 155.35) and criminal possession of stolen property in the third degree (PL 165.50). Defendant moved, among other things, for suppression of evidence obtained by, and statements made to, the arresting officer on the grounds that they were obtained without probable cause in violation of N Y Const, art I, § 12, and U S Const, 4th Amendment. Defendant further claims the statements were obtained involuntarily and in violation of Miranda. By decision dated January 8, 2010, Justice Steven Lloyd Barrett ordered that a combined Mapp-Huntley hearing be conducted.
On March 22, 2011, this matter was administratively transferred from Part 60, Justice Barrett, to this court, for that purpose. Such hearing commenced before this court on March 22, 2011, and concluded March 28, 2010. After considering the oral arguments made by both the defendant and the People, the testimony presented, evidence offered, prior court proceedings and documents on file with the court, defendant's motion to suppress is denied in its entirety.
This hearing continued on March 23, 2011, March 24, 2011, and March 25, 2011.
Findings of Fact
At the hearing, the People called two witnesses: Detective Kevin Woods, Financial Crimes Task Force, Identity Theft Squad ("Det. Woods") and Postal Inspector Ketty Larco, assigned to the Unite States Postal Inspection Service, Major Crimes Team ("Ins. Larco"). This court finds their testimony credible to the extent indicated herein. In addition to the defendant testifying on his own behalf, the defense called attorney Barry Goldberg.
Det. Woods and Ins. Larco testified that in 2009, the United States Postal Service ("USPS") commenced an investigation into individuals utilizing Citibank debit cards to purchase money orders in amounts less than $3000 at post offices in Bronx and Manhattan. They explained that based on their experience, such purchases are consistent with a financial scheme known as "check kiting," which is the fraudulent shifting of theoretical funds between two checking accounts where a check is drawn on a bank account with insufficient funds and deposited into an account at a second bank. Counterfeit or "starter" checks (checks issued upon opening a new account that do not contain the customer's name or address) are often used since it usually takes several days for such checks to be dishonored and returned as insufficient. Until then, funds may sometimes be withdrawn from the second account. Exacerbating this, banks such as Citibank and Capital One make portions of deposited funds immediately available in an attempt to maintain positive customer relations.
The specific nature of the financial scheme that Det. Woods and Ins. Larco were investigating was "new-account" fraud, which involves the purchase of money orders in amounts less than $3000. New account fraud occurs when a perpetrator enlists a target customer to open a new bank account and obtain a debit card. The perpetrator also provides the account holder with a counterfeit check, which he deposits into that account. In the ensuing three days, the account holder transacts a flurry of ATM withdrawls for the perpetrator's benefit. For the account holder's effort, the perpetrator pays the account holder a portion of the obtained funds.
On June 25, 2009, at approximately 7:00 a.m., Det. Woods and Ins. Larco, in collaboration with Secret Service agents and fraud investigators of other agencies, conducted a joint surveillance operation of the post office located at 588 Grand Concourse in Bronx County. Postal tellers were instructed to notify Ins. Larco of any customers using a Citibank debit card to purchase money orders in amounts less than $3,000. At some point during the surveillance operation, a postal teller notified Ins. Larco that the defendant, using a Citibank debit card, purchased three money orders, two in the amount of $1000 each and a third in the amount of $500. The postal teller immediately notified Det. Woods and Ins. Larco, and provided a detailed description of the defendant.
Moments later, Det. Woods and Ins. Larco approached the defendant and inquired about his identity, the money orders and the debit card he used to purchase them. Defendant produced an identification card bearing his name and purporting to be a Mohawk Valley Community College student identification card. It did not, however, have his address, date of birth or social security number. He did not produce a driver's license or any other official government-issued identification. Ins. Larco then asked to see the money orders and debit card, which he voluntarily provided. Observing that the debit card had his name on it and appeared to have been issued by Citibank, Ins. Larco asked the defendant to accompany her to a more private area for further investigation, which he agreed to do. Notably, while six investigators were present for several minutes, four departed; Det. Woods and Ins. Larco remained with the defendant. At no time did any of the investigators have their guns drawn, nor did they engage in any physical contact with the defendant.
During the next period of time, which last for approximately ten minutes, Ins. Larco contacted representatives of both Citibank and Capital One and learned that three days earlier, on June 22, 2009, two starter checks totaling $3,800 ($2,950 and $1,850) were deposited into a new account associated with the Citibank debit card defendant used to purchase the money orders. Those checks, however, had been drawn on a closed Capital One account. Ins. Larco further learned that over the several days that the new Citibank account had been in existence, never was there more than a bona fide $300 balance and at times had a negative balance. Subsequently, Det. Woods and Ins. Larco transported the defendant to the 44 precinct, placed him in an interview room and administered Miranda warnings. After knowingly and voluntarily waiving them, the defendant provided both an oral and written statement concerning his conduct.
Conclusions of Law
CPL 140.10 (1)(b) provides that "a police officer may arrest a person for . . . [a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise." Initially, the People have the burden of commencing a suppression hearing by presenting evidence of such reasonable, or probable, cause to show the legality of the police conduct (People v Baldwin, 25 NY2d 66 [1969]; People v Malinsky, 15 NY2d 86 [1965]). Once the People have met this burden, the defendant bears the responsibility of proving any illegality of the police conduct (People v Berrios, 28 NY2d 361 [1971]; Baldwin, 25 NY2d at 66).
In sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances, coupled with defendant's behavior, justified the arresting officers' intrusion. Such intrusion, of course, must comport with the four-tier approach articulated in People v DeBour (40 NY2d 210, 223 [1976]). DeBour's first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot" (DeBour, 40 NY2d at 223). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has been involved in criminal activity. Finally, an officer may effect a full blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime (DeBour at 223).
Several years after DeBour, the Court of Appeals, in an attempt to assist courts in evaluating whether "an unreasonable breach of legitimate expectations of privacy" exists, stated that a court must consider "(1) the nature and scope or the severity of the interference with individual liberty, (2) the public interest served, and (3) the objective facts upon which the enforcement officer relied" (People v Howard, 50 NY2d 583, 589; cert denied 449 US 1023 [1980]). Recognizing the imprecise nature of attempting to compartmentalize any one particular set of circumstances into a specific label, Judge Barry Kamins poignantly posits whether "the courts failed to see the forest through the trees' in dealing with this subject matter" (1 Barry Kamins, New York Search and Seizure § 2.01 [Matthew Bender, Rev Ed]).
Given such inherent difficulty, Judge Kamins notes that former Second Department Presiding Justice Mollen's decision in People v Finlayson "comes as close as any case to setting forth clear and instructive guidelines" (Kamins, § 2.01). In that decision, Justice Mollen scrutinized the various tests employed by other courts and found the balancing procedure advanced by Howard most helpful in determining whether the police action in a given set of circumstances was reasonable:
People v Finlayson, 76 AD2d 670 [2d Dept]; appeal denied 51 NY2d 1011 [1980]).
The reasonableness standard contemplates and permits a flexible set of escalating police responses, provided only that they remain reasonably related in scope and intensity to the information the officer initially has, and to the information he gathers as his encounter with the citizen unfolds. The greater the specific and articulable indications of criminal activity, the greater may be the officer's intrusion upon the citizen's liberty (Finlayson, 76 AD2d at 675).
Thus, as Judge Kamins points out, "Whatever action the officer takes — stopping a citizen, drawing a weapon, frisking a suspect, detaining a suspect for investigatory purposes — must be evaluated objectively against the realities of the confrontation to determine whether the action was reasonable" (Kamins, § 2.01). Indeed, echoing the inherent difficulty in identifying a specific rule or theory to apply in a given set of circumstances, the Court of Appeals suggested that perhaps the most appropriate test to utilize is the reasonableness of the police conduct (People v Wheeler, 2 NY3d 370 [2004]).
i. Request for Information
At the very least, DeBour makes clear that any level-one approach must, in addition to being objective and credible, be sufficiently particular to justify a request for basic information (DeBour, 40 NY2d at 223; see also People v McIntosh, 96 NY2d 521 [2001][a person or group of people arriving in a location and coming from another location known to be a source of drugs, by itself, does not provide an objective, credible reason to ask any such person for identification]). Thus, a law enforcement officer is entitled to request information, provided such request is limited to a brief series of questions (People v Hollman, 79 NY2d 181 [1992]; People v Morris, 191 AD2d 404 [1st Dept 1993]).
As such, a level-one request for information involves brief, basic, nonthreatening questions that are neither accusatory in nature nor create a reasonable belief that he is the focus of an investigation (Hollman at 181; People v Faines, 297 AD2d 590 [1st Dept 2002). For example, an officer may inquiry about a person's identity, their destination and/or their reason for being in a certain area (People v Perez, 279 AD2d 285 [1st Dept 2001]; People v Hanson, 195 AD2d 408 [1st Dept 1993]; People v Osborne, 194 AD2d 427 [1st Dept 1993]). In People v Carter (16 AD3d 188 [1st Dept 2005]), an officer approached the defendant and asked whether he had a bus ticket or was planning to board the bus. Because the officer observed the defendant at the bus terminal in a restricted area reserved for passengers, the Appellate Division found the officer's inquiry proper.
Here, defendant concedes that Ins. Larco's inquiry about the defendant's identity, the money orders and the debit card he used to purchase them was entirely proper. Her decision to approach him was based on a postal teller notifying her that he had used a Citibank debit card to purchase three money orders totaling $2,500, which was clearly both objective and credible.
When the defendant produced a non-government student identification card purporting to have been issued by Mohawk Valley Community College that did not contain his address, date of birth or social security number, Ins. Larco was certainly entitled, and arguably obligated, to verify his identity. Such verification was perhaps more significant considering that in her experience, false or fraudulent identification is frequently used in the commission of financial schemes. Thus, her request to see the money orders and debit card was entirely proper under a level-one request for information.
ii. Common-Law Right of Inquiry
While a level-one approach to request basic information is widely regarded unintrusive, the common-law right to inquire focuses on the citizen as a suspect and whether there is "founded suspicion that criminal activity is afoot" (DeBour, 40 NY2d at 223). Courts have described this level-two inquiry as one that closes in on a defendant as a "suspected law breaker" (In re Antoine W., 162 AD2d 121, 122 [1st Dept 1990], aff'd 79 NY2d 888 [1992]). Although this level of intrusion entitles an officer to interfere with a citizen "to the extent necessary to gain explanatory information," it may not involve a forcible stop and seizure (DeBour, 40 NY2d at 223; see also Hollman, 79 NY2d at 181; In re Wesley M.,195 AD2d 350 [1st Dept 1993], aff'd 83 NY2d 898 [1994]).
A level-two common-law inquiry, therefore, may involve extended, invasive, and accusatory questions aimed a particular person as the target of an investigation (Hollman, 79 NY2d 181). Such questions may indeed focus on the possible criminality of that person and may even be designed to elicit an incriminating response (People v Clyde, 203 AD2d 85 [1st Dept 1994]). In fact, they may even transform the encounter from a "merely unsettling one to an intimidating one" (Hollman, 79 NY2d 192; see also People v Fields, 257 AD2d 387 [1st Dept 1999]). Under this level of inquiry then, an officer may ask a person about the contents or ownership of a bag or the contents of his pocket (People v Rogers, 259 AD2d 398 [1st Dept 1999]; People v Niles, 237 AD2d 537 [2d Dept 1997]). An officer may even ask for permission to search a person's bag or enter a suspect's home to ask questions (Rogers at 398; People v Cesar, 111 AD2d 707 [1st Dept 1985]).
Although it is difficult, often impossible, to pinpoint the precise moment that a level-one request elevates to a level-two inquiry, here it arguably occurred when the defendant produced a non-government issued identification card from Mohawk Valley Community College bearing the same name that appeared on the Citibank debit card. While counsel argues such circumstances tended to exonerate him, therefore foreclosing further inquiry, this court disagrees. As both Det. Woods and Ins. Larco explained, the account holder typically uses the debit card. Thus, if anything, defendant's production of a non-government issued identification in conjunction with using a Citibank debit card to purchase money orders less than $3,000 certainly created a "founded suspicion that criminal activity is afoot." Indeed, based on Det. Woods' and Ins. Larco's expertise, such circumstances were consistent with new account fraud and presented specific, articulable facts that reasonably justified asking the defendant to accompany them to another location for further investigation. Accordingly, under the totality of the circumstances, the agents were certainly entitled to a brief intrusion for the purpose of acquiring explanatory information.
iii. Forcible Seizure
While a level-two inquiry stops short of a forcible seizure, a level-three intrusion is exactly that. Hence, the focus is not simply whether there is a founded suspicion of criminal activity, but whether there is reasonable suspicion that a certain individual is believed to be involved in such criminal activity (DeBour, 40 NY2d at 223). Thus, before a person may be stopped in a public place, a law enforcement officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL 140.50[1]). Reasonable suspicion is that "quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d 106, 112-113 [1975]). In other words, the officer must be able to state the specific and articulable facts reasonably prompting that intrusion; mere vague or unparticularized hunches are insufficient (United States v Cortez, 449 US 411, 417 [1981]; Terry v Ohio, 392 US 1 [1968]; Wong Sun v United States, 371 US 471 [1963]).
Being a forcible stop, therefore, a level-three intrusion constitutes a seizure "[w]henever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action" (Cantor, 36 NY2d at 111 [1975]; see also People v Martinez, 80 NY2d 444, 447 [1992]). Once an individual's liberty is deprived or limited therefore, regardless of its duration, there is a seizure within the meaning of the Fourth amendment occurs. Noting the difficulty in distinguishing between the common-law right of inquiry and reasonable suspicion relative to seizure, Judge Kamins observes:
[T]he right of inquiry allows intensive questioning short of a seizure, and yet in many cases, the inquiry is conducted under circumstances that have all the appearances of a "seizure.". . . While New York courts have held that the exercise of the police right of inquiry does not per se constitute an actual or constructive constraint on a citizen, in practical terms, it may be difficult for an officer to conduct an inquiry without effecting at least a constructive seizure of the citizen (Kamins, § 2.03[1], [internal citations omitted] [emphasis as quoted]).
While federal courts narrowed the definition of seizure to physical restraint (California v Hodari D., 499 US 621 [1991]; United States v Swindle, 407 F3d 562 [2d Cir 2005]), New York has adopted the broader "reasonable person" test, which is "whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom" (People v Bora, 83 NY2d 531, 535 (1994); see People v Hicks, 68 NY2d 234, 240 [1986]). Such a determination typically involves considering and individually weighing of all the facts and circumstances, including: whether the citizen was prevented from moving, whether lights and sirens were used, the number of officers involved, where the encounter took place, whether verbal commands were given, and their number, content and tone (People v Ocasio, 85 NY2d 982 [1995]; Bora, 83 NY2d at 535). In other words, reasonable suspicion must be based upon a totality of the circumstances, not merely a frame by frame" analysis (People v Stephens, 47 AD3d 586 [3d Dept 2005]).
Certainly then, blocking the path of a vehicle (In re Wesley M.,195 AD2d at 350), using turret lights, spotlights or loudspeakers (People v May, 81 NY2d 725 [1992]; see People v Sobotker, 43 NY2d 559 [1978]; People v Ingle, 36 NY2d 413 [1975]), and subjecting a citizen to physical contact (People v Nelson, 57 NY2d 826 [1982]; cert denied 460 US 1047 [1983]; People v Raily, 309 AD2d 604 [1st Dept]; appeal denied 1 NY3d 578 [2003]; People v Lilly, 211 AD2d 428 [1st Dept 1995]; People v Smith, 184 AD2d 326 [1st Dept]; appeal denied 80 NY2d 910 [1992], are forcible stops and constitute a seizure.
Merely issuing a verbal command, however, does not by itself constitute a seizure (Bora at 535). Thus, "stop", "show your hands" or "hold on" do not constitute seizures (Bora at 535; People v Jenkins, 209 AD2d 164 [1st Dept 1994]; People v Smoot, 209 AD2d 731 [2d Dept 1994]. Conversely, a police officer shouting "freeze" or "stop" with his gun drawn indeed constitutes a seizure (People v Townes, 41 NY2d 97 [1976]; People v Hampton, 200 AD2d 466 [1st Dept 1994]).
The difficulty of distinguishing between a level-two inquiry and a level-three stop aside, one thing is clear: defendant's voluntary decision to accompany the agents to a private location was not a seizure. He was neither commanded to go nor was he physically taken there. While at that location, he was neither physically nor constructively detained. Although at some point there were approximately six investigators for several minutes, only Det. Woods and Ins. Larco remained with the defendant. At no time were any of their guns drawn. Moreover, within ten minutes, Ins. Larco obtained inculpatory information from Citibank and Capital One fraud investigators, hardly a significant interruption of defendant's liberty. Accordingly, this period is most aptly characterized as closing in on the defendant as a suspected law breaker, a quintessential level-two inquiry.
Having concluded that the agents' conduct comported with a level-two common-law right of inquiry, the remaining issue is whether they possessed, at a minimum, reasonable suspicion to effect a forcible detention or probable cause to arrest. Of course, an officer's basis for conducting an investigatory stop may emanate from personal observation or information provided by others (Adams v Williams, 407 US 143 [1972]; People v Moore, 32 NY2d 67 [1973]). When such information is provided by another individual, however, it "must carry sufficient indicia of reliability to justify the forcible encounter" (Adams, 407 US at 146-147; Moore, 32 NY2d at 70). Thus, it is incumbent on the People to make some showing of both that person's reliability and basis of knowledge (People v Wirchansky, 41 NY2d 130 [1976]; People v Earley, 76 AD2d 335 [2d Dept 1980]). Notwithstanding that this rule is most often applied when evaluating an application for a search warrant, it is no less relevant in assessing the propriety of a warrantless arrest and search (see People v Elwell, 50 NY2d 231 [1980]; People v West, 44 NY2d 656 [1978]; see also Earley, 76 AD2d at 335).
Information provided by an anonymous or unidentified source then, may not be sufficiently reliable to constitute a basis for reasonable suspicion (Florida v J.L., 529 US 266 [200]). In J.L., the Supreme Court held that anonymous information supplied to an officer required corroboration as to both the suspect's identity and criminal conduct. In adopting J.L., the New York Court of Appeals applied J.L. to an automobile stop, suppressing a quantity of marijuana because the information provided by an anonymous caller failed to include a description of the defendant or any relevant information indicating he had engaged in any criminal activity (People v William II, 98 NY2d 93 [2002]). In fact, not only was the information uncorroborated, it contradicted the officer's observation relative to the manner in which the suspect was dressed. Thus, anonymous or unattributable information will not elevate activities otherwise susceptible of an innocent interpretation without either disclosure of the circumstances from which he concluded that criminal activities occurring or some independent observations on the part of an officer (Wirchansky, 41 NY2d at 130; see also Elwell, 50 NY2d at 231; West, 44 NY2d at 656). It is worth noting that nothing precludes the police from continuing to unobtrusively observe a suspect before approaching in anticipation of acquiring an indicia of criminality (Howard, 50 NY2d at 583).
Here, the information provided to investigators was attributed to identifiable sources that carried a sufficient indica of reliability: a postal teller, a Citibank fraud investigator and a Capital One fraud investigator. In fact, such information corroborated the agents' observations. Thus, while the initial ten-minute period was a proper level-two inquiry, defendant's further detention was also properly supported by reasonable suspicion.
iv. Probable Cause
As noted above, CPL 140.10 (1)(b) provides that "a police officer may arrest a person for . . . [a] crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise." Reasonable cause exists when:
evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was [or is being] committed and that such person committed it (CPL 70.10 [2]).
In other words, "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" (People v Carrasquillo, 54 NY2d 248, 254 [1981]). Such a determination is based upon an objective standard such that a reasonable person possessing the same level of expertise as the arresting officer would arrive at the same conclusion (People v Carter, 49 AD3d 377 [1st Dept 2008]; People v Cooper, 38 AD3d 678 [2d Dept 2007]). To be sure, probable cause requires only that the arresting officer be aware that some crime may have occurred, not that a specific crime actually occurred (People v Wilmer, 90 AD2d 918 [3d Dept 1982]; People v Schneider, 58 AD2d 817 [2d Dept 1977]).
Probable cause may also be established through a particular modus operandi (People v Burnside, 254 AD2d 98 [1st Dept 1998]) or an officer's interpretation of a perpetrator's seemingly benign actions who has expertise in a particular area of criminal activity (People v Romano, 256 AD2d 118 [1st Dept 1998]). Accordingly, once Ins. Larco learned the status of defendant's Citibank account, the fraudulent nature of the Capital One checks deposited into it, and the purchase of three money orders totaling $2,500, she possessed reasonable cause to arrest the defendant.
It is also worth noting that once Ins. Larco concluded probable cause existed to arrest the defendant, it is of no moment that the defendant offered innocent explanations for his conduct or denied any involvement (People v Daye, 194 AD2d 339 [1st Dept 1993]). Also irrelevant is whether she neglected to investigate or pursue other possible suspects (People v Archibald, 192 AD2d 537 [2d Dept 1993]).
In short, whether probable cause exists in a given set of circumstances depends on their totality and reasonableness. As the Court of Appeals has observed, "no two criminal cases are ever exactly alike" (Carrasquillo, 54 NY2d at 248). While this court recognizes that defendant's conduct did not reflect a prototypical street crime, it is worth noting that a similar patter of police conduct was employed: the arresting officer received a description of the perpetrator, stopped a suspect fitting such description, briefly detained that suspect to conduct an inquiry and verified the obtained information.
Finally, regarding defendant's claim that the defendant's debit card and money orders were unlawfully obtained, this court finds it to be entirely unpersuasive. Nothing in the hearing record remotely indicates that those items were the product of an unlawful search or were otherwise forcibly removed from his person. In fact, the having presented the debit card to purchase the money orders, the card and the money orders were in his hands. More significantly, however, having cooperated with Det. Woods and Ins. Larco, the record reflects defendant voluntarily provided those items to them. Regardless, having no inherent expectation of privacy in such items, and not having possessed them in an area that the defendant had such an expectation, they were lawfully obtained.
v. Statements
Fundamental to American jurisprudence is the precept that any custodial interrogation conducted by law enforcement agents must be preceded by the warnings enunciated by the Supreme Court of the United States in Miranda v Arizona, 384 US 436 [1966]. Specifically, such agents must inform a person in custody of his right to remain silent and to have an attorney present during any questioning (Miranda v Arizona, 384 US 436 [1966]). A suspect may, of course, waive his Miranda rights by voluntarily, knowingly, and intelligently relinquishing those rights after having been made aware of them (People v Anderson, 42 NY2d 35 [1977]; People v Leonti, 18 NY2d 384 [1966], cert denied 389 US 1007 [1967]; People v Medina, 123 AD2d 331 [2nd Dept 1986]). The burden, however, of establishing the voluntariness of a suspect's statement beyond a reasonable doubt at a Huntley hearing is on the People (People v Holland, 48 NY2d 861 [1979]; Anderson, 42 NY2d 35; People v Huntley, 15 NY2d 72 [1965]) and here, this courts finds that they have satisfied it.
a. Custody
"In deciding whether a defendant was in custody prior to receiving his warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position" (People v Yukl, 25 NY2d 585, 589 [1969]; People v Rodney P., 21 NY2d 1 [1969]; People v DeJesus, 32 AD3d 753 [1st Dept 2006]; People v Robbins, 236 AD2d 823 [4th Dept], lv denied 90 NY2d 863 [1997]; People v Lynch, 178 AD2d 779, 781 [3rd Dept 1991), lv denied 79 NY2d 949 [1992]).
In making such an assessment, courts must consider the "totality of the circumstances" (People v Centano, 76 NY2d 837 [1990]; see also Minnesota v Murphy, 465 US 420 (1984). Among such circumstances is whether the defendant voluntarily appeared at, or accompanied officers to, the police precinct and whether questioning is conducted in a non-coercive atmosphere (People v Acquaah, 167 AD2d 313 [1st Dept 1990], app denied 78 NY2d 961 [1991]; People v Davis, 161 AD2d 395 [1st Dept], app denied 76 NY2d 955 [1990]). Based on this court's findings of fact stated above, it is axiomatic that the defendant was in custody.
b. Interrogation
A suspect is subjected to interrogation when he is confronted with "express questioning or its functional equivalent" (Rhode Island v Innis, 446 US 291 [1980]). The "functional equivalent" of express questioning is "words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect" (Innis at 301). The Court of Appeals has similarly held that "[w]hat constitutes interrogation' of a suspect . . . is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the suspect as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response" (People v Ferro, 63 NY2d 316 [1984], cert denied 427 US 1007 [1985]).
Exempted from traditional interrogation are statements made at a preliminary stage of an investigation in response to a law enforcement agent's general inquiry are not usually considered the product of an interrogation (People v Johnson, 59 NY2d 1014 [1983]; People v Chestnut, 51 NY2d 14 [1980]; People v Huffman, 41 NY2d 29 [1976]). Also exempted are spontaneous statements that were essentially forced upon law enforcement agents and not the product of any inducement, provocation, encouragement or acquiescence on their part (People v Maerling, 46 NY2d 289 [1978]).
c. Voluntary, Knowing and Intelligent Waiver
As noted, it is the People's burden to prove that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights. Traditionally, the issue of voluntariness centers around whether through the use of coercive techniques, law enforcement agents extract a statement "with complete disregard of whether or not (the accused) in fact spoke the truth" (Rogers v Richmond, 365 US 534 [1961]). CPL 60.45 (2) (b) (1) provides that law enforcement agents' use promises that create a risk of false incrimination to obtain a confession or admission are not the product of a rational intellect and a free will. Indeed, under those circumstances, a suspect's will is overborne (Brewer v Williams, 430 US 387 [1977]; Townsend v Sain, 372 US 293 [1963]; People v Anderson, 42 NY2d 35 [1977]; People v De Jesus, 63 AD2d 148 [1978], lv denied 48 NY2d 734 [1979]). Such statements, therefore, are deemed to have been obtained involuntarily and are inadmissible for any and all purposes including impeachment or rebuttal (see, People v Walker, 67 NY2d 776 [1986]; Maerling, 64 NY2d 134). Even absent a risk of false incrimination, suppression may nevertheless be warranted where the promise is so deceptive or egregious as to violate due process (People v Tarsia, 50 NY2d 1 [1980]; People v Everett, 10 NY2d 500, cert denied 370 US 963 [1962]; People v Rossi, 26 AD3d 782 [4th Dept 2006]; People v Peters, 157 AD2d 806 [2nd Dept], lv denied 76 NY2d 740 [1990]; People v Taber, 115 AD2d 126 [3nd Dept], lv denied 67 NY2d 657 [1990].
Generally, the test for determining voluntariness is the "totality of the circumstances" standard (United States v Bye, 919 F2d 6 [2nd Cir 1990]; Terry v LeFevre, 862 F2d 409 [2nd Cir 1988] Anderson, 42 NY2d 35). Among the circumstances to be weighed are interrogation techniques such as physical abuse (see Anderson at 35), psychological pressure (Davis v North Carolina, 384 US 737 [1966]; see also Arizona v Fulminante, 499 US 279 [1991]; Blackburn v Alabama, 361 US 199 [1960]), food or sleep deprivation (Ashcraft v Tennessee, 322 US 143 [1944]; Greenwald v Wisconsin, 390 US 519 [1968]) and promises of immunity or payment (People v Dunbar, 53 NY2d 868 [1981]; People v Urowsky, 89 AD2d 520 [1st Dept 1982].
Here, defendant made a verbal and written statement to Det. Woods, both of which were clearly products of a custodial interrogation intended to elicit an incriminating response. As such, Det. Woods read defendant the Miranda warnings before speaking with him. After being read each warning, or right, defendant acknowledged receiving and understanding it, and voluntarily elected to waive it. He did so by writing "yes" and placing his initials on the pre-printed typewritten form, "INTERROGATION WARNINGS TO PERSONS IN POLICE CUSTODY," following each one (see People's Exhibit 2). He also placed his signature at the bottom of the one-page document. Then, after making a verbal statement, the defendant handwrote and signed a lengthy statement in what clearly appears to be his words, consisting of one full legal-size notepad page and a third of a second page (see People's Exhibit 3).
Regarding defendant's claim that he neither realized nor appreciated the significance of his waiver and statement, this court finds it to be entirely unpersuasive. Also unpersuasive is his claim that the additional paragraph written after his signature was the product of coercive tactics or other nefarious police conduct. Defendant explains in that paragraph that he was to be paid $500 for his role in the financial scheme. Contrary to defendant's assertion, the document is consistent with Det. Woods' testimony that upon reviewing the written statement, he noticed the defendant had omitted such information. Consequently, the defendant wrote the additional paragraph and resigned it to indicate that he had indeed done so.
Based upon the credible testimony offered, this court finds the People clearly established that the Miranda warnings were properly administered, and that the defendant voluntarily, knowingly and intelligently waived them. There is simply no evidence indicating he was threatened, forced or compelled to do so. Nor is there any suggestion he was deprived of food, water, sleep or bathroom use. No promises were made to him by any police officer or the District Attorney. At no time did he request to consult with counsel.
vi. Conclusion
This court finds that viewed in the light most favorable to the People (see People v Williams, 84 NY2d 925 [1994]; see also People v Contes, 60 NY2d 620 [1983]), the arresting agents properly approached the defendant, conducted an investigatory inquiry, and ultimately possessed the requisite probable cause justifying his forcible stop and subsequent arrest. Accordingly, defendant's motion to suppress the debit card, money orders and any other property as well as the statements made to law enforcement officers is therefore denied. Additionally, for the reasons stated above, defendant's motion to suppress statements as having been obtained involuntarily and in violation of Miranda is denied as well.
This constitutes the decision and order of the court.
ENTER
________________________________Richard Lee Price, J.S.C.