Opinion
Indictment No. 01060-20
10-06-2023
People of the State of New York v. David Gorham, Defendant.
People: Assistant District Attorney Zachary Chelsea Bryn Toder (Kings County District Attorney's Office) Defense Attorney: Arielle Simon, Esq. (Brooklyn Defender Services); Sarah Burleson, Esq. (Brooklyn Defender Services)
Unpublished Opinion
People: Assistant District Attorney Zachary Chelsea Bryn Toder (Kings County District Attorney's Office)
Defense Attorney: Arielle Simon, Esq. (Brooklyn Defender Services); Sarah Burleson, Esq. (Brooklyn Defender Services)
HON. RAYMOND L. RODRIGUEZ, ACTING JUSTICE
Defendant, David Gorham, is charged with Murder in the Second Degree, in violation of New York Penal Law § 125.25(1).
On March 13, March 14, March 27, and September 7 of 2023, this Court conducted Dunaway, Payton, Wade, Huntley, and Mapp hearings (Dunaway v. New York, 442 U.S. 200 [1979]; Payton v. New York, 445 U.S. 573 [1980]; US v Wade, 388 U.S. 218 [1967]; People v. Huntley, 15 N.Y.2d 72 [1965]; Mapp v. Ohio, 367 U.S. 643 [1961]). The Dunaway and Payton hearing pertained to defendant's apprehension and arrest for Murder in the Second Degree. The Wade hearing pertained to a photo array conducted on June 1, 2020, and a lineup conducted on June 18, 2020. The Huntley hearing pertained to oral statements made by defendant on June 18, 2020. The Mapp hearing pertained to jewelry, namely a beaded necklace, recovered from defendant's person on June 18, 2020.
The People called six witnesses at the hearing, Detective Kevin Pollack (hereinafter "Detective Pollack"), Detective Deshawn Ware (hereinafter "Detective Ware"), Retired Detective Brian Ilund (hereinafter "Detective Ilund"), Retired Sergeant Titus Parham (hereinafter "Sergeant Parham"), Sergeant Brian Grant (hereinafter "Sergeant Grant"), and Detective Anthony Biondolillo (hereinafter "Detective Biondolillo") of the New York Police Department (hereinafter "NYPD"). The People put into evidence the photo array and photo array paperwork, the lineup and lineup paperwork, Miranda instructions, and defendant's video interrogation.
At the time of the shooting, Sergeant Grant was still a police officer with the 76th Precinct Detective Squad. He was promoted to Sergeant in July of 2021. Throughout the testimony at the hearing, he was sometimes referred to as PO Grant or Detective Grant, but for purposes of this decision he will be referred to as Sergeant Grant.
Defendant did not call any witnesses but put into evidence precinct surveillance video, a color copy of the photo array, photo array audio, and the NYPD Detective Guide dealing with photo arrays. Based on the testimony of the witnesses and the evidence presented, the Court makes the following Findings of Fact and Conclusion of Law.
I. Findings of Fact
A. Testimony of Detective Kevin Pollack
Detective Pollack has worked for the NYPD for approximately ten years. As of the date of the hearing, he was assigned as a detective at the 72nd Precinct in Brooklyn, New York. He has been a detective for approximately four years. The Court finds his testimony to be credible and reliable.
On June 18, 2020, Detective Pollack was asked by Sergeant Parham to conduct a double-blind lineup at the 76th Precinct. Detective Pollack was given no details about the case or any potential perpetrator. Detective Pollack played no role in the creation of the lineup. Detective Pollack and Sergeant Parham reported to the 76th Precinct, located at 191 Union Street, and met with Detective Ware. Detective Ware provided no details on the case or perpetrator. Detective Ware handed Detective Pollack a two-page document containing the instructions for the lineup. Already filled in on the document was the witness's name, the incident location "48 Columbia Street," and the incident date "6/1/20." Those fields were filled in by Detective Ware in the presence of Detective Pollack. All other fields in the lineup instructions document were blank.
The two-page lineup instructions document was admitted in evidence as People's Exhibit 1. A three-page document containing photographs of the lineup itself was admitted as People's Exhibit 2.
Detective Pollack and Sergeant Parham then met with Witness One in a private lounge. No one else was present in the room. Sergeant Parham had no conversations with Witness One. Detective Pollack read Witness One the instructions on page one of the lineup instructions document. Detective Pollack and the witness then went into the viewing area where Detective Pollack administered the lineup. When asked whether they recognized anyone in the lineup, Witness One responded immediately, "yes." When asked the number of the individual that they recognized, Witness One responded, "three." When asked from where they recognized that person, Witness One responded, "he shot the victim." Witness One indicated to Detective Pollack that they were very sure about their response. Witness One also stated their relationship to the victim. After administering the lineup Detective Pollack made notations on the second page of the lineup instructions document regarding Witness One's answers. Specifically, Detective Pollack wrote, "yes," "three," and "he shot," as well as the date and time. Detective Pollack also had Witness One sign the lineup instructions document.
Detective Pollack testified that he had not viewed the lineup prior to entering with Witness One. Upon viewing the lineup, Detective Pollack recognized the individuals situated in positions one and six, as they are members of the NYPD, 72nd Precinct. Detective Pollack testified that those officers arrived with Detective Pollack, as fillers were needed for the lineup. The fillers were selected by Sergeant Parham. Detective Pollack played no role in the selection of the fillers and had no conversations with Sergeant Parham regarding those fillers. Detective Pollack further testified that he did not recognize the individuals in positions two, three, four or five of the lineup. At the time of the lineup, Detective Pollack had no familiarity with defendant and had no information regarding whether defendant was in the lineup or what position he was in, if any.
After the administration of the lineup, Detective Pollack and Witness One returned to the private lounge. Witness One initialed page one and signed page two of the lineup instructions document. Detective Pollack then communicated the results of the double-blind lineup to Detective Ware.
B. Testimony of Detective Deshawn Ware
Detective Ware has worked for the NYPD for approximately eighteen years. As of the date of the hearing, he was assigned as a detective at the 76th Precinct in Brooklyn, New York. He has been a detective for approximately twelve years. The Court finds his testimony to be credible and reliable.
In his role as a detective with the 76th Precinct, Detective Ware's duties include investigating major crimes. In June of 2020, he had been involved in the investigation of approximately ten to fifteen shootings. In June of 2020, Detective Ware had been involved in approximately fifty videotaped statements and had made hundreds of arrests.
On June 1, 2020, Detective Ware became involved in an investigation into the shooting of Elvin Fernandez, Junior (hereinafter "Fernandez"), after receiving a radio call that a male had been shot. Detective Ware, along with his partner Sergeant Grant, responded to 484 Columbia Street, Kings County, New York, which is a housing development. Detective Ware testified that upon arriving at 484 Columbia Street, he observed multiple police officers, people on the street and an ambulance. He further observed, in the walkway leading to 484 Columbia Street, a lot of blood on the floor, a bottle of Patron, a small vial of marijuana, and a deformed bullet fragment. Detective Ware spent only a few minutes at the scene. During those few minutes he spoke with Inspector O'Malley, from whom he learned that Fernandez had been shot. He also spoke with Fernandez's cousin, who was not an eyewitness, in the back of an ambulance.
Sergeant Grant later testified that he and Detective Ware spent approximately thirty minutes on scene before they both proceeded to Methodist Hospital.
Detective Ware learned that Fernandez and Witness One had been transported to Methodist Hospital. Detective Ware went to Methodist Hospital at approximately 6:15 p.m., where he was able to speak with the doctors, speak with Fernandez's family members, and interview Witness One, who was also being treated at the hospital. Detective Ware testified that he was able to learn Witness One's relationship to Fernandez. Witness One stated to Detective Ware, in sum and substance, that she and Fernandez were going home after getting food when they noticed a group of males pass them. They noticed the males head to the liquor store on Lorraine Street and then go into a candy store on the corner of Lorraine Street and Columbia Street. Witness One then noticed the men approach from the candy store towards the walkway of 484 Columbia Street. Witness One then observed a male from the group approach them, state, "what's up now," and fire a gunshot which hit Fernandez. Witness One did not recall hearing gunshots but did recall seeing Fernandez on the floor and observed a large amount of blood. Witness One observed the male shooter casually walk away from the scene. Witness One stated to Detective Ware that the shooter was wearing all black. Witness One stated to Detective Ware that she knows the shooter to go by the name of Peping, and that he is a dark skin male approximately 5'9" in height. Witness One further stated to Detective Ware that the shooter, Peping, was carrying a blue and white shopping bag in which he was carrying the firearm.
Witness One was present on scene when Detective Ward arrived, however Detective Ward did not have an opportunity to speak with Witness One on scene before Witness One was transported to the hospital.
While at the hospital, Detective Ware was also able to observe Fernandez. He observed Fernandez to be unconscious with a bullet lodged in his skull. Detective Ware testified he was notified by Fernandez's mother that twenty-three days after the shooting, on June 24, 2020, Fernandez succumbed to his injuries and was declared dead.
Detective Ware further testified regarding his interview with Witness Two. He testified that Witness Two was at the hospital with Fernandez's family members. Witness Two was familiar with Fernandez and Peping. Witness Two did not observe the shooting. When Detective Ware asked Witness Two about Peping, Witness Two showed Detective Ware a Facebook page for a male by the name of David Gorham, which had a photograph of David Gorham (hereinafter "defendant").
Detective Ware testified that later that day, June 1, 2020, at approximately 8:47 p.m., a photo array was created by Sergeant Grant, after Detective Ware provided Sergeant Grant with defendant's name. The photo array was administered at Methodist Hospital, located at 506 Sixth Street, by Detective Biondolillo. The subject of the photo array was the defendant. Detective Ware testified that when he received the photo array from Sergeant Grant it was not filled out. Detective Ware gave the first three of the six pages of the photo array paperwork to Detective Biondolillo to show to Witness One. Defendant's photograph was in position number five in the photo array. Detective Ware testified that while Detective Biondolillo was aware that he was there to conduct a double-blind photo array with respect to a shooting, he was given no other information, no description of the defendant, and was not told the defendant's position number in the photo array.
The photo array paperwork is a six-page document admitted as People's Exhibit 3.
The photo array was administered at Methodist Hospital. Detective Ware testified that pursuant to a request from Witness One, Detective Ware stayed in the room while the photo array was administered. Detective Ware testified that he provided Witness One with a pen, but otherwise was silent while the photo array was being administered. Detective Ware made no indications with his body, nor did he make any physical gestures while the photo array was being conducted. Witness One selected the individual in position five in the photo array, namely the defendant.
After the photo array was administered, Detective Ware had another conversation with Witness One in which Witness One reiterated the events surrounding the shooting and stated to Detective Ware that the shooter had been wearing all black and carried a firearm in a blue, white, and yellow bag. Witness One stated to Detective Ware that when people in the neighborhood carry guns, they often carry them in similar bags. During the conversation with Detective Ware, Witness One mentioned an individual by the name of John, also known as Sweet Pea, who carries guns in big bags and robs people in the neighborhood, however there was no indication that John had any involvement in the shooting of Fernandez. The photo array administration and the conversation with Detective Ware was audio recorded.
The audio recording was admitted into evidence, on consent, as Defense Exhibit D.
Detective Ware testified that during his investigation, he obtained video surveillance which depicted a male along with other individuals walk down Columbia Street, head across Lorraine Street and walk into a candy store. While in the candy store, a male looked out the window until he observed Mr. Fernandez and Witness One, at which time the male left the location, crossed the street and walked over to Columbia Street. The video then depicted people running from the location. On June 1, 2020, Detective Ware issued an iCard for defendant.
On June 2, 2020, Detective Ware conversed with Detective Ilund from the Fugitive Apprehension Squad. Detective Ware provided Detective Ilund with all the information he had regarding defendant. On June 18, 2020, Detective Ware learned that defendant had been apprehended at 511 West 177th Street, Apartment 3A, New York, New York, an apartment belonging to Alisha McLoughlin (hereinafter "McLoughlin").
Based upon prior arrests, Detective Ware stated that the address he had on file for defendant was 829 Hicks Street, different than this apprehension address (Ware tr. At 116, lines 5-8).
On June 18, 2020, defendant was brought to the 76th precinct by Detective Ilund. At approximately 8:40 a.m. Detective Ware first saw the defendant in the precinct cell area. Detective Ware provided defendant with water and a sports bar. He introduced himself and asked defendant if he knew why he was there, to which defendant responded that he had received a phone call to run and he ran. Detective Ware left the cell area and returned at approximately 9:11 a.m. with breakfast for defendant. Detective Ware then engaged in what he described as small talk with the defendant. Defendant asked Detective Ware how they were able to find him, stating that only two people knew his location. Detective Ware testified that he told defendant how they found him, and that defendant's question led to small talk about the area, but that Detective Ware did not discuss the crime with defendant.
Detective Ware was in the room with defendant for a couple minutes and then he left and returned at approximately 10:10 a.m. Detective Ware was again only with defendant for a couple minutes and defendant asked to make a phone call. Detective Ware testified that throughout the course of the day he engaged in small bouts of small talk with defendant, regarding the neighborhood, other individuals in the neighborhood, and shootings, but never discussed the facts of the case. During these conversations Detective Ware told defendant about an individual that he knew who got three to five years on a shooting. At 10:21 a.m. Detective Ware returned to the room and allowed defendant to make a phone call. Defendant called McLoughlin and asked her to contact his brother for bail money. After defendant's phone call defendant asked Detective Ware whether Fernandez was still alive, asked the detective whether he thought he would get out, and asked when he could make a deal, to which Detective Ware informed him, that would be further down the line when he speaks to the Judge. The defendant asked when he could make a deal to which Detective Ware offered to contact the District Attorney (hereinafter D.A.) to see if they were willing to send someone over to speak with defendant. Defendant informed Detective Ware that he did want to speak with the D.A. Detective Ware testified that he never promised the defendant a deal nor did he promise that the D.A. or Assistant District Attorney (hereinafter "ADA") would give him a deal. There was no further conversation between Detective Ware and defendant regarding the case at that time. At 10:40 a.m., Detective Ware brought defendant a bottle of water and at 10:47 a.m., Detective Ware informed defendant that he was proceeding with the paperwork and that he had attempted to reach out to the D.A.'s office. All these interactions were captured on precinct surveillance video. Detective Ware testified that upon review of the surveillance video he observed that defendant was permitted to use the bathroom.
The precinct surveillance video was entered into evidence as Defendant's Exhibit A.
During cross examination, Detective Ware testified that while defendant was in the cells, Detective Ware told him that by being honest, talking to the detectives, and telling them what happened he could help him and that he wanted to help him. He also told defendant to be honest and make things easier on himself. On re-direct examination, Detective Ware clarified that when he told defendant he could help him he meant only regarding getting an ADA to talk to defendant and to listen to what defendant had to say. Detective Ware testified that he never promised to personally help defendant. Detective Ware further testified that he never promised defendant that the ADA could help him, only that he would try to get an ADA to come and talk with him. Detective Ware testified that neither he nor the ADA promised the defendant any leniency.
At approximately 1:02 a.m., Detective Ware returned to the cells to inform defendant that an ADA had arrived to speak with him, and at 1:14am, Detective Ware retrieved defendant from the cells and brought him upstairs to room 206B to speak with the ADA regarding the case.
Detective Ware testified that he never threatened the defendant or made him any promises and never had his gun drawn while with the defendant.
Defendant was brought to the interrogation room to meet with ADA Ogiste. Prior to meeting ADA Ogiste in the interrogation room, defendant had not had any conversations with the ADA. Detective Ware read what is commonly referred to as Miranda warnings, and when defendant agreed to speak about the case, ADA Ogiste had defendant initial each response. The interrogation was videorecorded.
The Miranda instructions read to defendant were entered into evidence as People's Exhibit 4 and the video recording of the interrogation was admitted as People's Exhibit 5.
After the interrogation defendant stated that Detective Ware had lied to him and promised him a deal. Defendant was brought back down to the cells. Back in the cells defendant continued saying he was tricked. Defendant asked to apologize to ADA Ogiste; ADA Ogiste went to the cells and defendant apologized. After that, defendant had no further communication with ADA Ogiste.
Detective Ware testified that after the interrogation he did not make the defendant any promises nor did he threaten him or have his gun drawn at any time. After the interrogation Detective Ware recovered beads from around defendant's neck which defendant admitted to wearing at the time of the shooting. Detective Ware testified that he observed beads around defendant's neck, and he asked defendant if those were the same beads defendant had been wearing at the time of the shooting. Defendant informed Detective Ware that one set of beads was worn during the shooting, but that the other set of beads was new. Defendant handed Detective Ware the beads he had been wearing at the time of the shooting and kept the other set of beads.
Detective Ware testified that during the interrogation defendant stated that the gun used was a 9-millimeter, however later in the cells defendant spontaneously stated that the gun was not a 9-millimeter. Detective Ware stated that the latter statement was not made in response to any questions and that no threats or promises were made to the defendant prior to that statement.
Detective Ware testified that in addition to the photo array previously discussed, he also created a double-blind lineup. Detective Ware called Sergeant Parham at the 72nd precinct and informed him that he needed someone to administer a double-blind lineup; he did not give Sergeant Parham any details about the case. Detective Ware also asked Sergeant Parham to bring with him two fillers and provided him with the criteria - male, black. Detective Ware testified that usually they obtained fillers from the shelter, but because of COVID, they were forced to use police officers as fillers. Detective Ware did not personally assemble the lineup, however, he was present when it was set up by Sergeant Parham and Sergeant Grant. Detective Ware prepared the lineup paperwork (People's Exhibit 1), and his handwriting appears on the paperwork where he filled in the "prepared by" line, the address of occurrence, and the date on pages one and two of said paperwork. Detective Ware then gave the paperwork to Detective Pollack to administer. Defendant was permitted, per procedure, to select his position, and he selected position number three in the lineup. Detective Ware testified that he was not present when the lineup was administered and that he was outside the office.
Detective Ware arranged for Witness One to come to the precinct by informing Witness One that they needed to view a lineup. Detective Ware did not inform Witness One that defendant had been apprehended. Detective Ware had no additional conversation with Witness One regarding the lineup. Prior to viewing the lineup, Witness One was brought into the precinct through a separate door and kept in a separate room so that they would not be seen or see any part of the lineup being arranged. The lineup was fully set up before Witness One was able to view it from the viewing room. Detective Ware testified that he was not present when Witness One was brought over to view the lineup.
After the lineup, Sergeant Parham communicated to Detective Ware that Witness One selected the person in position number three, the defendant, as the shooter.
C. Testimony of Detective Brian Ilund
Detective Ilund was a member of the NYPD for approximately 28 years. At the time of the hearing Detective Ilund was retired from the NYPD for approximately two years. Prior to his retirement he was assigned to the warrant squad and was part of the New York, New Jersey Regional Fugitive Task Force. In June of 2020 he had been a member of the Task Force for approximately four years and had participated in more than one hundred apprehensions. The Court finds his testimony to be credible and reliable.
Although Detective Ilund had to have his recollection refreshed multiple times throughout his testimony, the Court finds that overall, he testified credibly and reliably. While he had difficulty remembering details leading up to the arrest, the Court finds that he testified credibly as to the events that he remembered including the details of the apprehension.
On June 2, 2020, Detective Ilund was assigned this case and was informed that there was a probable cause iCard for defendant in connection with a shooting that occurred on June 1, 2020. Defendant's photograph was on the iCard. Detective Ilund testified that after being assigned the case, he conferred with Detective Ware. Detective Ilund recalled informing Detective Ware that he had been assigned the case but could not recall the specifics of the conversation.
After receiving the iCard, Detective Ilund conducted a computer check on defendant, running defendant's name through SKIMS database, LeaseLeads, eJustice, DMV, DV database, CRIMS, and Facebook to review any past complaints, arrest history, DMV information, and any other reports in the NYPD system. Detective Ilund's computer checks returned an address of 31 Centre Mall Street as being the address used on defendant's license or welfare documentation. On June 4, 2020, Detective Ilund went to 31 Centre Mall Street and spoke with the Flores family. He was informed by a Flores family member that defendant was a family friend and had previously used their address for his document. The Flores family informed Detective Ilund that defendant was currently living in the area. Later that same day, Detective Ilund made another effort to apprehend defendant and went to 811 Hicks Street where he spoke with James McCurren. James McCurren informed Detective Ilund that defendant was a friend of his brother, Kaleek, that defendant lived in another apartment in the same building, and that he goes by the nickname "Ping."
Detective Ilund testified that he subpoenaed defendant's Facebook records and the IP address where defendant had signed into his Facebook account. This search showed that defendant had logged into Facebook on June 14, 2020, at the following address: 511 West 177th Street, Apartment 3E, New York, New York.
On June 18, 2020, at approximately 6:45 am, Detective Ilund, along with his team, went to 511 West 177th Street, apartment 3E Street in Manhattan in an attempt to apprehend defendant. Upon arriving at the location, Detective Ilund testified that he knocked three times. The first time, he observed someone slide the peephole open inside the apartment but received no response. After his second knock a female, whom he later learned was McLoughlin, again opened the peephole and asked who was at the door. Detective Ilund informed McLoughlin that he was with the Police Department Warrant Squad at which time she closed the peephole and walked away. After the third knock, McLoughlin opened the door. Detective Ilund testified that he informed McLoughlin that he was from the warrant squad, that he had warrants to execute in the building, and that he was conducting an investigation. He then showed her the warrants and asked her if anyone was in the apartment that was named in the warrants. McLoughlin responded "no." Detective Ilund then asked McLoughlin if he could enter the apartment to make sure that the person he was looking for was not there. McLoughlin then let Detective Ilund into the apartment. Detective Ilund testified that he only entered the apartment after McLoughlin told him he could enter. Detective Ilund asked McLoughlin if there was anyone else in the apartment and she informed him that she had a friend staying with her and that he was sleeping in the next room. Detective Ilund asked McLoughlin if he could see this person to make sure he was not one of people on his warrants and McLoughlin consented. Detective Ilund then entered the room and observed defendant laying on the bed. Detective Ilund then told defendant that he was wanted by the 76th Precinct and that he had to leave with him. Defendant got up, got dressed, and left with Detective Ilund.
Detective Ilund explained that because he had arrived at this location through an IP address, it is sometimes the case that the individual whom they are looking for is not in the apartment that comes back to the IP address but is in a neighboring apartment. Therefore, on that day he brought multiple warrants and was planning on conducting a "warrant sweep" in the building. The purpose was two-fold: one to clear any outstanding warrants for individuals that were in the apartment building and two, to interview any apprehended persons in the hopes they had information on defendant's whereabouts. He testified however that his ultimate goal was to locate defendant.
Detective Ilund then brought defendant to the 76th Precinct. Detective Ilund did not discuss the case with the defendant and did not make the defendant any promises nor did he threaten defendant. When they arrived at the precinct, Detective Ilund brought the defendant to the desk officer, signed him in, then brought him to the Detective Squad. After this, Detective Ilund had no further involvement in the case.
On cross examination Detective Ilund testified that while he had received verbal consent from McLoughlin to enter the apartment, he did not receive written consent and that it was not his practice to receive written consent. He further stated that he did not have an arrest warrant for defendant. Detective Ilund denied forcing his way into the apartment and testified that while defendant never gave consent for Detective Ilund to enter that he had received consent to enter the apartment by McLoughlin.
D. Testimony of Sergeant Titus Parham
Sergeant Parham was a member of the NYPD for approximately twenty-sever years. At the time of the hearing Sergeant Parham had been retired from the NYPD for approximately eight months. Prior to his retirement he was assigned to the Detective Bureau, where he had been assigned since 2010. In June of 2020 Sergeant Parham was working with the 72nd Precinct Detective Squad, where he had been for approximately one year. He had been a Sergeant for approximately fifteen years at that time. During his career he had assembled approximately sixty lineups. The Court finds his testimony to be credible and reliable.
On June 18, 2020, Sergeant Parham received a call from Detective Ware regarding a lineup to be conducted at the 76th Precinct. Detective Ware informed Sergeant Parham that he needed fillers for the lineup, specifically black males, but provided no other information regarding the potential suspect. Detective Ware did not provide Sergeant Parham with any details regarding the case or the witness that was to view the lineup. Sergeant Parham also testified that prior to becoming involved in the case he had not observed any Wanted Posters regarding this case in the 72nd Precinct. Sergeant Parham testified that at the time of the lineup he did not know anything about the case at hand.
After speaking with Detective Ware, Sergeant Parham gathered three of his investigators, namely Detective Burchette, Detective St. Louis, and Detective Pollack and went to the 76th Precinct. Sergeant Parham informed Detective Pollack that he would be conducting a lineup. He informed the other two detectives that they might possibly be fillers in a lineup.
When they arrived at the 76th Precinct, Witness One was in a private room. Sergeant Parham did not communicate with Witness One. Sergeant Parham instructed Detective Pollack to get the lineup instruction paperwork, read the instructions to the witness, make sure the rules are followed and conduct the lineup. Sergeant Parham's role was to make sure that the lineup was conducted fairly and correctly and that the lineup photos were taken after everyone was placed. Sergeant Parham ensured that all the individuals in the lineup were seated and covered to conceal any characteristics of their clothing. He also had all the individuals put on hats.
Sergeant Parham testified that Detective St. Louis took position one in the lineup and Detective Burchette took position six. The defendant was permitted to choose his position and he chose position number three. Sergeant Parham testified that he did not recognize any of the individuals in positions two, three, four, or five. Also, in the room with the individuals who were part of the lineup was Sergeant Grant, the security officer.
The fillers, including the two detectives that arrived with Sergeant Parham, were kept separate from Witness One.
After the lineup was created, Witness One was brought into the viewing room. Sergeant Parham remained outside the room. Although Sergeant Parham was outside the viewing room, the viewing room door had been left ajar and Sergeant Parham was able to hear from his location Witness One select the individual in position number three in the lineup. Sergeant Parham had no communication with Witness One during the lineup. Sergeant Parham signed the lineup paperwork (People's Exhibit 1) in the field delineated "Supervisor's Signature."
E. Testimony of Sergeant Brian Grant
Sergeant Grant has been a member of the NYPD for approximately eleven years. As of the date of the hearing he was assigned to the Staten Island Warrant Squad. Prior to going to the Staten Island Warrant Squad, he was in the 76th Precinct for approximately seven years in various roles. In June of 2020 he was a police officer in the 76th Precinct Detective Squad, a position he had held for approximately eight months at that time. By June of 2020, he had responded to approximately a dozen shootings and approximately ten homicide or potential homicide scenes. He was promoted to Sergeant in July of 2021. The Court finds his testimony to be credible and reliable.
On June 1, 2020, at approximately 5:55 p.m. Sergeant Grant responded to a 911 call for an assault in progress, male shot. Sergeant Grant, along with his partner, Detective Ware, responded to 484 Columbia Street in Kings County. Upon arriving on scene, Sergeant Grant observed a pool of blood in front of the location, a bag of marijuana, an unopened bottle of tequila, a dinosaur barbecue brown paper bag, and a bullet fragment on the floor. While on scene, Sergeant Grant took photographs, did a preliminary exterior video canvas, and tried to locate witnesses. Sergeant Grant spent approximately half-an-hour at the scene. He and Detective Ware then responded to Methodist Hospital. At the hospital, he spoke with the doctors to try to ascertain the condition of the victim.
While Sergeant Grant was at Methodist Hospital, Witness One was interviewed by Detective Ware, however, Sergeant Grant was not present for the interview. After conferring with Detective Ware, Sergeant Grant learned that defendant was the potential perpetrator.
Sergeant Grant returned to the 76th Precinct to create a photo array. He obtained defendant's New York State Identification (hereinafter "NYSID") number. Using the Photo Array Management System, and utilizing defendant's NYSID number, Sergeant Grant was able to get a photograph of defendant, and five fillers with similar characteristic to defendant, which he put into a photo array. The search terms used by Sergeant Grant to find the fillers were, "sex, male; race, black; hair length, short; hair color, black; age range, between 25 and 29 years old." Sergeant Grant selected the search terms to try to match the description of the defendant, by viewing the photograph of defendant that he had pulled. Once the search terms were entered into Photo Manager, Photo Manager then provides several matches with the attributes listed. Sergeant Grant went through the results and selected the five filler photos to use in the photo array. Sergeant Grant testified that the defendant was placed, at random, in position number five.
The six-page photo array paperwork created by Sergeant Grant is People's Exhibit 3. A color copy of the photo array itself was admitted on cross-examination as Defendant's Exhibit C. (Defendant's Exhibit B was the NYPD Detective Guide dealing with photo arrays.)
Grant tr at 309, lines 20-21.
Photo Manager retuned 76,354 matches.
After he created the photo array, Sergeant Grant placed the photo array packet in a manilla envelope and physically brought it to Methodist Hospital where he handed it to Detective Ware. Sergeant Grant did not have any participation in the administration of the photo array. Sergeant Grant testified he had no communication with Detective Biondolillo regarding the crime or the suspect, nor did he provide him with any description of the perpetrator. Sergeant Grant had no communication with Witness One regarding the photo array while at Methodist Hospital, nor did he ever interview Witness One.
After bringing the photo array to Methodist Hospital and after the array was administered, Sergeant Grant returned to the 76th Precinct. He spent approximately an hour and a half to two hours at the hospital.
F. Testimony of Detective Anthony Biondolillo
Detective has been a police officer for just over sixteen years and a detective since 2014. In June 2020 and at the time of the hearing Detective Biondolillo was assigned to the 72nd Precinct Detective Squad. He has been with the 72nd Precinct since May 2016. As of June 2020, Detective Biondolillo had administered approximately five double-blind photo-arrays and had been present for the administration of another five photo arrays. The Court finds his testimony to be credible and reliable.
On June 1, 2020, Detective Biondolillo became involved in an investigation relating to a shooting that occurred that same day in Kings County. Detective Biondolillo's partner, Detective Kyrkos, received a phone call from the Homicide Squad. They were asked to go to Methodist Hospital to administer a photo array for the 76th Precinct with respect to a possible homicide. Detective Biondolillo was not given a name or description of the possible perpetrator. Other than knowing that the case involved a possible homicide, Detective Biondolillo had no other information regarding the substance of the case. He testified he did not know about the shooting and had not personally heard anything about it come over the police radio. He also had no information regarding the witness whom he was to show the array.
At the time that Detective Biondolillo and his partner received the call regarding the photo array, he and his partners, Detectives Kyrkos and Chiarfolo, were on their way to another job regarding a body that had been pulled out of the river. Detective Biondolillo went to Methodist hospital and his partners remained in the car to wait for him. Once inside the hospital, Detective Biondolillo reported to the emergency room where he spoke with a uniformed NYPD officer and informed him, he was there to administer a photo array. The officer pointed him to another uniformed officer whom he later learned was Detective Ware. Detective Biondolillo had never previously met Detective Ware. Detective Ware informed him that there was one photo array, and one witness who was on the bed inside the room where they were standing. Detective Ware did not provide Detective Biondolillo with any information regarding the substance of the case, the possible perpetrator, or the location of the possible perpetrator in the photo array. Detective Ware gave Detective Biondolillo pages one through three of the photo array paperwork. Detective Biondolillo was not given pages four through six. Detective Biondolillo testified that page three of the photo array paperwork is the photo array itself and that it was in color. He further testified that the color version of the photo array was the one used when he showed the photo array.
Upon receiving pages one through three of the photo array paperwork, Detective Biondolillo entered the room with Witness One, introduced himself, and informed Witness One that they were going to view a photo array. Detective Ware remained in the room with Detective Biondolillo. Detective Biondolillo testified that he had never seen Witness One prior to that date.
Detective Biondolillo then read Witness One the instructions on page two of the photo array paperwork, namely the Photo Array Pre-Viewing Instructions to Witness Report. After reading the instructions, Detective Biondolillo asked Witness One to sign the block that indicated the instructions had been read and that Witness One had been shown the next page, the photo array page. Witness One signed where instructed. Detective Biondolillo testified that the photo array page was the only page that he showed to the witness. After viewing the photo array, Witness One identified the individual in position number five.
Detective Biondolillo then asked Witness One if they recognized the person and Witness One answered in the affirmative. When Detective Biondolillo asked Witness One where they knew the person from, they answered that they knew him from the Red Hook houses and the shooting. The entirety of the conversation with Witness One was audiotaped.
Detective Biondolillo testified on cross examination that the confidence statement in People's Exhibit 3 was not filled in by anyone and that he did not ask the witness the confidence statement question, namely how certain the witness was with their choice.
Other than the administration of the photo array, Detective Biondolillo had no other conversation with Witness One. Detective Biondolillo testified that Detective Ware said nothing during the photo array procedure. However, at one point Witness One needed a pen so Detective Ware offered his pen. Other than that, Detective Biondolillo did not observe Detective Ware say anything to Witness One regarding the photo array nor did he observe Detective Ware make any physical gestures with his body indicating who to select.
Upon cross examination, Detective Biondolillo testified that after Detective Ware handed Witness One the pen, Witness One asked what to write and Detective Ware responded, telling Witness One to write their name.
Detective Biondolillo testified that he did not know the individual in position five, did not know what position the suspect was in, and did not know who the suspect was for the photo array.
After he administered the photo array, Detective Biondolillo handed it back to Detective Ware along with the phone that he used for the audio recording. He then asked Detective Ware if he needed anything else and if Detective Ware needed him to fill anything out. Detective Ware responded, "no." Detective Biondolillo left his contact information with Detective Ware's partner who was in the hallway and left. Detective Biondolillo had no further involvement in the case.
On cross examination, Detective Biondolillo testified that it was not his handwriting in People's Exhibit 3, Section B and that he does not know who filled in that part. However, on re-direct he testified that he was in the room for the entirety of the administration of the photo array and the photo array paperwork is consistent with his recollection of that administration.
II. Conclusions of Law
A. Probable Cause for Arrest (Dunaway)
While a defendant has the ultimate burden of proving the illegality of police conduct, the People have the initial burden to introduce evidence that credibly establishes either a lawful rationale for the conduct of the police, or some other basis for averting suppression. (People v Berrios, 28 N.Y.2d 361, 367 [1971]). Additionally, the People have the burden to establish that the police had probable cause to arrest the defendant (People v Wise, 46 N.Y.2d 321 [1994]). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to believe that a defendant has committed an offense (People v Oqden, 36 N.Y.2d 382 [1975]). In this case, such probable cause exists. Pursuant to C.P.L. § 140.10(1)(b), "a police officer may arrest a person for [a] crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise." The arresting officer need not provide "proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed." (People v. Bigelow, 66 N.Y.2d 417, 423 [1985]).
See also People v. Shulman, 6 N.Y.3d 1, 25-26 [2005] [internal quotation mark and citation omitted] ("When determining whether the police had probable cause to arrest, the inquiry is not as to defendant's guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer's belief that the defendant was guilty").
Detective Ware testified that upon arriving to 484 Columbia Street he observed, among other things, a lot of blood and a deformed bullet fragment. He spoke with doctors at Methodist Hospital as well as Fernandez's family members regarding Fernandez's condition. He also interviewed Witness One, an eyewitness to the shooting. Witness One identified defendant in a double-blind photo array. Based upon the investigation, Detective Ward issued a probable cause iCard. Detective Ilund testified that he reviewed the iCard and spoke with Detective Ware, though he was unable to remember the specifics of the conversation. He later arrested defendant pursuant to that iCard. Based upon the testimony and evidence, the detectives had probable cause to arrest the defendant for Attempted Murder in the Second Degree.
At the time of the arrest on June 18, 2020, defendant was still alive. He later died from his injuries on June 24, 2020.
B. Lawfulness of Arrest (Payton)
A Payton hearing was conducted to determine the lawfulness of defendant's warrantless arrest. To establish a Payton violation, a defendant must first demonstrate standing in the location of the arrest (see People v. Rodriguez, 69 N.Y.2d 159 [1987]). As a threshold matter, the Court finds that defendant had standing to contest his arrest inside of 511 West 177th Street, Apartment 3E. Although the apartment belonged to defendant's girlfriend, as an overnight guest, defendant had a reasonable expectation of privacy therein (see People v. Ortiz, 88 N.Y.2d 840 [1994]).
Absent certain exceptions, police may not enter an individual's home to make a warrantless arrest (Payton, 455 U.S. 573). Detective Ilund testified that upon arriving at 511 West 177th Street, Apartment 3E, he was, after three knocks, greeted at the door by McLoughlin. Detective Ilund testified that he identified himself as being with the police and informed her that he was with the warrant squad and was executing warrants in the building. Detective Ilund then showed McLoughlin several warrants which he intended to execute during the warrant sweep. On cross examination, Detective Ilund testified that his primary goal was to locate and apprehend defendant. Detective Ilund testified that he asked McLoughlin if he could enter the apartment and she consented. He further testified that he only entered the apartment after McLoughlin gave consent. Based upon this testimony, the Court finds that McLoughlin consented to the officers' entry into her home. The ruse used by officers to gain entry, namely telling McLoughlin that they were in the building to conduct a general warrant sweep and showing her warrants for other individuals in the building, was not "so fundamentally unfair as to deny due process" and thus did not undermine or negate McLoughlin's consent (People v. Williams, 222 A.D.2d 721 [1995]). The Court thus finds that the police's entry into McLoughlin's apartment was consensual and that there was no Payton violation.
See Williams at 721 [internal quotation mark and citation omitted] , ("[T]he ruse employed by the detectives to get the defendant to exit his home did not render his arrest unlawful. A detective knocked on the defendant's door and told the woman who answered that there had been an accident involving the defendant's automobile. The defendant voluntarily left his house to investigate. Because the deception was not "so fundamentally unfair as to deny due process, the hearing court properly denied suppression of identification testimony on that ground"). See also, People v. Watson, 687 N.Y.S.2d 119, 119 [1999], ("[T]he ruse used by the police to obtain entry into defendant's apartment by misrepresenting the identity of the person being sought did not deprive defendant's girlfriend of her freedom of choice and was not so unfair as to undermine her consent."); People v. Roberson, 249 A.D.2d 148, 148 [1998 ][internal citations omitted], ("[A]lthough police used deceptive tactics to gain entry into apartment in which defendant was staying, ruse employed was not so unfair as to undermine consent of person who had requisite authority and control over premises to permit entry; record thus supports hearing court's determination that since police entry into apartment was consensual, there was no Payton violation").
C. Identifications of Defendant (Wade)
The Court conducted a Wade hearing to determine whether the double-blind photo array conducted on June 1, 2020, and the double-blind lineup, conducted on June 18, 2020, were unduly suggestive. The People have the burden of going forward in the first instance to show that the pre-trial identification procedures were permissible and proper. The defendant, however, carries the burden of showing that such identification procedures were improper. In determining whether the procedures used herein were proper, this Court must determine whether the identification procedures were suggestive and conducive to a substantial likelihood of irreparable misidentification (Wade, 388 U.S. 218).
a. Double-Blind Photo Array
Detective Ware testified that pursuant to his investigation and conversations with Witness One and Witness Two, Detective Ware learned defendant's name and believed defendant to be the shooter. He provided defendant's name to Sergeant Grant. Sergeant Grant testified that after conferring with Detective Ware, he created a photo array using the Photo Manager system, placed the photo array paperwork in a manilla envelope and brought it back to Detective Ware at Methodist Hospital. Sergeant Grant testified that he played no role in the administration of the photo array and had no conversations with Detective Biondolillo or Witness One.
Detective Biondolillo testified that he administered the photo array and at the time of administration, he knew nothing about the crime, defendant, or Witness One, nor did he have any information regarding the placement of the defendant in the array. Detective Biondolillo further testified that Detective Ware remained in the room throughout the administration of the photo array but did not speak with Witness One during the administration (other than to give them a pen and to direct Witness One to put their name on the paperwork) and did not make any gestures with his body. After the administration of the photo array, Detective Biondolillo left, and Detective Ware remained behind and likely filled out the paperwork. Detective Biondolillo however testified that the answers on the paperwork and the selection made were consistent with his recollection of what occurred during the photo array.
Defendant argues that Detective Ware's presence and participation during the photo array was unduly suggestive and impermissible. While the Court finds that it would have been better practice for Detective Ware to not be present during the administration, upon review of the testimony, audio recording of the photo array administration, and the photo array paperwork, the Court finds that the photo array was not unduly suggestive, and Detective Ware did not interfere with the administration of the photo array.
Defendant argues that the photo array was unduly suggestive because defendant was the only person pictured with a light grey background. Defendant further argues that every person in the photo array had a solid-colored top (two were in black t-shirts, one in a black hoodie, one in a grey hoodie, one in a white hoodie, one in a white t-shirt), except for defendant who was wearing a black t-shirt with a partial white collar. The Court finds that contrary to defendant's contentions, the photo array was not unduly suggestive. "There is no requirement that the photograph of a defendant shown as part of a photo array be surrounded by photographs of individuals nearly identical in appearance. Here, the alleged variations in appearance between the photographs of other persons depicted in the photo array and that of the defendant were not so substantial as to render the photo array impermissibly suggestive" (People v. Starks, 91 A.D.3d 975, 975-76 [2012] [internal citations omitted]). The Court does not find that the characteristics of defendant's photograph draws the viewers' attention to that particular photo, nor does it suggest that the police encouraged a particular selection. Each man in the photo array appears close in age, and has similar hairstyle, skin tone, and facial features.
See People v. Sosa-Marquez, 177 A.D.3d 1003, 1004 [2nd Dept 2019], ("[T]he fact that the defendant's photograph had what he described as an 'awkward orange hue' was not, in and of itself, sufficient to establish that the array was unduly suggestive"); People v. Mata, 174 A.D.3d 647, 647 [2nd Dept 2019], ("Although the background of the defendant's photograph was brighter than the backgrounds of the other photographs, and the defendant's photograph was slighter larger than the others, those facts were not sufficient to render the photographic array unduly suggestive"); People v. Redding, 132 A.D.3d 700, 700 [2nd Dept 2015], ("Although the background of the defendant's photograph was lighter than the backgrounds of the other photographs, and the defendant's photograph was of poorer resolution than the others, those facts were not sufficient to render the photo packets unduly suggestive"); People v. Smiley, 49 A.D.3d 1299, 1300 [4th Dept 2008],("Contrary to defendant's contention, the differences in skin tone and head size of the individuals depicted in the photo array were not so great as to indicate that the police were urging a particular selection"); People v. Lundy, 178 A.D.3d 1389, 1390 [4th Dept 2019][internal citations omitted], ("Although defendant was the only person in the photo array wearing a red shirt, it was 'not so distinctive as to be conspicuous, particularly since the other individuals were dressed in varying, nondescript apparel'").
b. Double-Blind Lineup
On June 18, 2020, Detective Pollack administered a double-blind lineup. Detective Ware prepared the lineup paperwork, and the lineup was assembled by Sergeants Parham and Grant. Detective Pollack testified that he played no role in the creation of the lineup and had no details regarding the case, defendant, or defendant's position in the lineup. Detective Pollack recognized two of the fillers, as they were members of NYPD, but did not recognize any of the four other individuals in the lineup. Sergeant Parham testified that he had no conversations with Witness One regarding the lineup.
Defendant argues that the lineup was not double-blind based on Detective Ware's testimony that the radio run pertaining to a male shot would have been heard over the radio by Detective Pollack's precinct. Detective Pollack however testified that at the time of the lineup he had not heard about the shooting and had no information about the case. Defendant further argues that Detective Pollack could not be certain that there was no wanted poster displayed in the 72nd precinct for this shooting. Again however, Detective Pollack did not testify to seeing a wanted poster relating to this case and in fact testified he had no information about the shooting or defendant when he administered this lineup. Sergeant Parham testified that he had no conversations with Witness One regarding the lineup.
Defendant contends that the lineup was unduly suggestive because defendant was the only person in the lineup holding the blue blanket with two hands. The Court finds this argument to be without merit. The lineup photograph shows six individuals, three of whom are holding a blue blanket over their bodies, and three holding a green blanket. Some of the men are holding the blanket with one hand, some are holding it with two hands. The fact that defendant is the only one of the three holding the blue blanket with two hands is not unduly suggestive.
The Court finds that based upon the testimony and evidence, the lineup was not unduly suggestive. Each man in the lineup appears close in age, and has similar hairstyle, skin tone, and facial features.
D. Voluntariness of Defendant's Statements (Huntley)
The People have the burden of proving beyond a reasonable doubt that statements made by the defendant were voluntary. Furthermore, a defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v Arizona, 384 U.S. 436 [1966]). Both the elements of police custody and police interrogation must be present before law enforcement officials are constitutionally obligated to provide the procedural safeguards imposed upon them by Miranda (People v Huffman, 41 N.Y.2d 29, 33 [1976]).
The Court conducted a Huntley hearing regarding statements made by defendant, pre- Miranda, while in the cells, and later, post- Miranda, in an interrogation room and in the cells.
a. Pre- Miranda Statements
Defendant was apprehended by Detective Ilund on June 18, 2020, at approximately 6:45 a.m. Detective Ilund testified that he did not ask defendant any questions nor did he make him any promises or threats. Detective Ilund delivered defendant to the precinct and at approximately 8:40 a.m. Detective Ware began his interactions with defendant. Detective Ware testified that at about that time, he asked the defendant if he knew why he was there, to which defendant responded that he had received a phone call to run and he ran. Detective Ware responded by saying to the defendant, "that's your story you are going to tell me then that's your story, stick with it." While defendant remained in the cells, Detective Ware returned, at 9:11 a.m., 10:10 a.m., 10:21 a.m., 10:40 a.m., 10:47 a.m. 1:02 p.m. before returning at 1:14 p.m. to take defendant to the interrogation room. During those visits between 8:40 a.m. and 10:21 a.m., Detective Ware brought defendant food and drink, allowed him to make a phone call, and provided him with bathroom breaks. He also testified that he engaged in small talk with defendant about people in the neighborhood. Detective Ware testified that during those visits, defendant asked Detective Ware how he could go about getting a deal to which Detective Ware offered to see if an ADA would come to the precinct and talk to him. During the 10:40 a.m. visit, Detective Ware brought defendant a bottle of water. During the 10:47 a.m. visit., Detective Ware informed defendant that he was proceeding with the paperwork and that he had attempted to reach out to the ADA but had no additional conversation with defendant. At 1:02 a.m. Detective Ware informed defendant that the ADA had arrived. At 1:14 a.m., Detective Ware brought defendant to the interrogation room.
Detective Ware testified that each of his visits to defendant was only a few minutes long. He testified that he did not make defendant any promises or threats. When defendant asked about making a deal, Detective Ware told him that that would happen further down the line when he talks to the Judge and that he could try to see if an ADA would speak with him. On cross examination Detective Ware stated that he told defendant that if he was honest, talked to the detectives, and told them what happened he could help him and that being honest would make things easier on himself. But Detective Ware denied promising defendant a good deal and clarified that when he told defendant he could help him he meant only regarding getting an ADA to talk defendant and to listen to what defendant had to say. Detective Ware testified that he never promised to personally help defendant.
The Court finds that Detective Ware's question at 8:40 a.m., asking defendant if he knew why he was there, constituted a custodial interrogation as it was meant to illicit an incriminating response. This is further evidenced by Detective Ware's response to defendant, "that's your story you are going to tell me then that's your story, stick with it." All subsequent pre- Miranda statements are thus tainted by this impermissible questioning. Defendant's pre- Miranda statements are therefore suppressed as the product of custodial interrogation.
b. Post- Miranda Statements
At 1:14 p.m. Detective Ware brought defendant from the cells to room 206B to an interrogation room where he was questioned by ADA Ogiste. Prior to the interrogation, Detective Ware read defendant his Miranda warnings and ADA Ogiste had defendant initial each response. Defendant waived his rights and agreed to speak with the Detective and the ADA, and he signed the Miranda Warnings sheet, People's Exhibit 4.
Defendant contends that defendant's post- Miranda statements should be suppressed. To this end, defendant cites a "cat-out-of-the-bag theory", claiming that his pre- Miranda statements were inculpatory and thus tainted any post- Miranda confession as defendant felt committed to his initial inculpatory statements. Defendant further cites a "one-continuing-events-chain-of-events theory," denying any attenuation between the pre- and post- Miranda statements. Finally, defendant claims that his statements were not made voluntarily because he believed he was falsely promised a deal by Detective Ware, which undermined the validity of his Miranda waiver.
The Court finds defendant's post- Miranda statements were voluntarily made and sufficiently attenuated from the earlier Miranda violation in the cells. "The attenuation doctrine requires a court to consider 'the temporal proximity of the arrest and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct' application of the attenuation doctrine is a mixed question of law and fact" (People v. Bradford, 15 N.Y.3d 329, 333 [2010]). Courts have considered numerous factors when determining whether there was sufficient attenuation, such as the passage of time between the improper questioning and the post- Miranda statement, whether the two statements were part of a single continuous chain of events, whether the questionings were done in different environments, and whether the pre- Miranda statement were used or exploited during the later questioning.
See People v. Durfey, 170 A.D.3d 1331 [2019].
Defendant argues that Detective Ware subjected defendant to hours of interrogation in the cells. The Court disagrees. While defendant was in the cells, Detective Ware made numerous visits to defendant, but some of those visits were for the purpose of providing defendant with food, water, phone calls, and bathroom breaks. Based on the testimony, the questioning and subsequent small talk between Detective Ware and defendant occurred between 8:40 a.m. and 10:21 a.m. Defendant was taken to the interrogation room at approximately 1:14 p.m. Thus, there is a two-hour period (8:40 a.m. to 10:21 a.m.) during which Detective Ware had a few conversations with defendant each lasting a few minutes, followed by an approximately three-hour period (10:21 a.m. to 1:14 a.m.) during which no questioning occurred until defendant was read Miranda. Although Detective Ware still visited defendant during that latter three-hour period, he testified that those visits served the purpose of providing defendant with water and status updates and that there were no additional conversations.
Passage of time alone however is not enough to determine that there is attenuation; attenuation must be measured by several factors. Here, in addition to the passage of time, the defendant's post- Miranda statements were made in a different location. Defendant was taken from the cells and placed in an interrogation room on a different floor of the precinct. There, although Detective Ware was present, the post- Miranda interrogation was conducted by a different interviewer, namely ADA Ogiste. During the interrogation, defendant was also presented with new evidence, photographs, linking him to the shooting. The Court therefore rejects defendant's claim that the post- Miranda interrogation was a continuous chain of events from the prior impermissible questioning.
See People v. Martinez, 37 N.Y.2d 662 [1975].
See People v. Williams, 106 A.D.3d 759, 760 [2nd Dept 2013] ("These post-Miranda statements, taken in a different location and by a different interviewer from the defendant's initial pre-Miranda statements, were sufficiently attenuated from the defendant's earlier statements to the police since there was a definite and pronounced break in the questioning").
See People v. White, 40 A.D.3d 662, 663 [2nd Dept 2007] [internal quotations and citations omitted] ("Although, prior to the administration of Miranda warnings, the defendant was subjected to a brief period of custodial interrogation or its functional equivalent, he made no inculpatory statement, or any statement relating to his conduct in connection with the crime under investigation, until after such warnings had been properly given and waived. In the absence of any such preMiranda statement, there was no need to determine whether the pre-and postMiranda sessions were part of a single continuous chain of events").
Additionally, the Court rejects defendant's "cat-out-of-the-bag theory." During defendant's pre- Miranda questioning with Detective Ware, defendant's statement, including stating that he received a phone call to run so he ran, and questioning whether Fernandez was still alive, were not such as to make defendant feel that he could not later "change his story" when he was interviewed by the ADA. Furthermore, defendant did not testify at the suppression hearing, and so there is no evidence in support of his claim that he "felt so tied to his original inculpatory statement" that he could not later change it during the post- Miranda interrogation.
People v. Jamison, 307 A.D.2d 368, 368-69 [2nd Dept 2003] [internal quotation marks and citations omitted] ("defendant made a brief oral statement to a detective indicating he knew something about the subject homicide, but had not been involved the preMiranda statement was not so incriminating in nature that it can be said to have committed the defendant to confessing to the crime, and there is no evidence that the defendant felt so committed by the preMiranda statement that he believed himself bound to confess").
See People v. Morgan, 277 A.D.2d 331 [2nd Dept 2000] ("[T]he defendant did not testify at the suppression hearing and no evidence was adduced in support of his contention that the second statement was involuntarily made on constrain of the prior inadmissible statement, under the so-called 'cat out of the bag' theory").
The Court finds sufficient attenuation between the pre- Miranda and post- Miranda questioning and finds that the post- Miranda statements were not tainted by the prior inadmissible statements.
Defendant contends that his waiver of Miranda and subsequent statements were not made voluntarily and were procured through coercive tactics because they were the result of false promises by Detective Ware. The Court finds Detective Ware's generalized statements regarding the benefits of cooperation did not constitute a "promise of leniency that created a 'substantial risk that defendant might falsely incriminate himself,' which would render the statement involuntary" (People v. Lugo, 60 A.D.3d 867, 868 [2nd Dept 2009] [internal citations omitted]). Not every promise made to a defendant by police creates this risk. Although Detective Ware touted the benefits of honesty and told defendant, in response to defendant's inquiries about a deal, that he would bring an ADA to talk to defendant, Detective Ware never made any express or implied promises to defendant such as to create a substantial risk of defendant incriminating himself. Detective Ware maintained that he expressed the importance of honesty and told defendant that any deals made would be further down the line when he talked to a judge but that he would see if the ADA was willing to come to the station to talk to him about the case. This is further supported by defendant's own statements during the interrogation, where defendant stated, "you told me usually, when you talk to the D.A usually, if I'm just being honest, I would get some leniency." Detective Ware gave no assurances that the defendant's cooperation would result in a more favorable plea.
In Lugo, police officer's statement to defendant that "the more he cooperates, the better it will be for him and that he would tell the D.A.'s office about defendant's cooperation did not render defendant's statement involuntary (Lugo at 588). See also, People v. Grant, 170 A.D.3d 888, 889 [2nd Dept 2019] ("[G]eneralized promises of leniency do not create a substantial risk that a defendant might falsely incriminate himself and there is nothing in this record to suggest that the statements made by the law enforcement officials were of a nature that they would have overborne the defendant's will); People v. Woods, 93 A.D.3d 1287, 1287 [4th Dept 2012] [internal quotation marks and citations omitted] ("[G]eneralized comment to defendant regarding the benefits of cooperating with the police did not constitute a promise of leniency that created a substantial risk that the defendant might falsely incriminate himself").
See People v. Taber, 115 A.D.2d 126 [3rd Dept 1985].
See People v. Engert, 202 A.D.2d 1023, 1024 [4th Dept 1994] [internal quotation marks and citations omitted] ("The statement by one of the officers that, if defendant cooperated, such cooperation would help him, if anything, in the long run, did not constitute a promise that rendered defendant's statement involuntary under either statutory or constitutional standards"); People v. Richards, 275 A.D.2d 886, 886 [4th Dept 2000] ("The statement of police officer that he would inform the District Attorney of defendant's cooperation did not create a substantial risk that defendant might falsely incriminate himself").
Detective Ware testified that during one of his pre- Miranda conversations with defendant he discussed a case where an individual received three to five years for a shooting, but when asked by defense whether he told defendant he too could receive five years by cooperating, Detective Ware stated that he did not. The Court finds that Detective Ware's statement to defendant, given the totality of the circumstances, and in the context of all other statements made to defendant was not such as to render defendant's post- Miranda statements involuntary as it did not create a substantial risk that defendant would falsely incriminate himself. Additionally, there is no evidence in the record that defendant was "so vulnerable or susceptible" to any promises made by the police such that he would be likely to make a false incriminating statement (Taber at 127).
People v. Perry, 77 A.D.2d 269,272-73 [1st Dept 1980] [internal quotation marks and citations omitted] ("Nor was there any impermissible promises extended, express or implied. The officers at all times said only that they would speak to the District Attorney and request a lower charge if defendant told the truth, and always with the caveat that the final decision rested with the District Attorney, as indeed it does. There were no absolute assurances given that defendant's co-operation would result in more favorable treatment. The confession was also voluntary under CPL 60.45 Under this statutory language, promises or statements of fact alone are insufficient to evoke the exclusionary rule, but must rise to the level of those promises or statements, which create a substantial risk that a defendant might falsely incriminate himself. These statements, urging defendant to tell the truth and offering only the possibility, but not a promise, of what defendant was led to believe would be a lesser charge, are not the kind which involve a substantial risk of inducing a false confession").
After the interrogation, defendant made additional statements to Detective Ware while in the cells. The first statement was in response to questioning by Detective Ware. Detective Ware testified that once back in the cells, Detective Ware stated to defendant, "[C]an I ask you a question. Are those the beads you had on?" to which defendant responded, "Those are the beads I had on." Defendant further stated to Detective Ware that he had additional beads on which he had not worn during the shooting and asked if he could keep them. The second set of statements made by defendant in the cells, after the interrogation, were made spontaneously. Defendant stated to Detective Ware that although he had told them the gun was a 9mm, the gun was not actually a 9mm. Detective Ware testified that he had not asked defendant any questions and that defendant was "just talking."
Ware tr at 152, lines 7-10.
Ware tr at 153, line 6.
There is nothing in the record to indicate that defendant at any time after waiving his Miranda rights then invoked said rights. The interrogation video showed defendant visibly upset with the ADA and Detective Ware by the end of the interrogation. Defendant repeatedly claimed that they "tricked" him and at one-point states that had he known this was what was going to happen he would have had them "fight his lawyer" and that he would "never have said nothing." However, this is not enough to invoke his previously waived Miranda rights. If defendant "desires the protection of the privilege, he must claim it" (U.S. v. Monica, 317 U.S. 424, 427 [1943]). The New York Court of Appeals has held that a defendant must unequivocally invoke Miranda rights for such rights to attach. "Whether a particular request is or is not unequivocal is a mixed question of law and fact and must be determined with reference to the circumstances surrounding the request including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant" (People v. Glover, 87 N.Y.2d 838 [1995]). Here, defendant's statements were ambiguous and equivocal. Defendant stating that he could have or would have asked for a lawyer before confessing, had he known there was no deal, did not clearly indicate any desire to invoke a right to counsel or remain silent. Defendant never stated that he no longer wanted to talk or that he wanted an attorney. In fact, once back in the cells, defendant continued to talk, offering information about the gun without questioning from the detective. This further evidences that defendant did not intend by his prior statement to invoke a right to counsel or to remain silent.
Where a suspect makes an ambiguous invocation of his Miranda rights, the United States Supreme Court has "decline[d] to adopt a rule requiring officers to ask clarifying questions. If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him" (Davis v. U.S., 512 U.S. 452, 461-62 [1994]). In Davis the U.S. Supreme Court found defendant's statement "maybe I should talk to a lawyer" to be ambiguous.
See People v. Hicks, 69 N.Y.2d 969 [1987], defendant asking whether he should speak to a lawyer did not unequivocally inform police of his intention to retain counsel. See also, People v. Caruso, 34 A.D.3d 860 [3rd Dept 2006] ("The right to remain silent, which is scrupulously honored once asserted, nonetheless requires a defendant to be unequivocal and unqualified when invoking the right"); People v. Meadows, 180 A.D.3d 1244, 1245 [3rd Dept 2020], ([D]efendant's isolated statement of 'I could get a lawyer' did not constitute an unequivocal request for counsel").
The Court therefore finds that defendant's post- Miranda statements, including statements made during the interrogation and afterwards in the cells, to be knowing and voluntary and thus denies defendant's motion to suppress said statements.
E. Lawfulness of Property Seized from Defendant (Mapp)
A Mapp hearing was conducted to determine whether evidence, namely beads worn by defendant, was unlawfully seized and should be suppressed. As a threshold matter, defendant has the initial burden to prove a legitimate expectation of privacy in the place or item searched to establish standing (People v. Rodriguez, 69 N.Y.2d 159 [1987]). Defendant is not required to testify to meet this burden and in fact, defendant may rely on the evidence presented by the People in their direct case (People v. Gonzalez, 68 N.Y.2d 950, 1002 [1986]). The Court finds that defendant has standing to contest the recovery of the beads from his person.
In a Mapp hearing, the People have the initial burden of going forward with credible evidence tending to show the legality of the police conduct which led to the recovery of the property (People v. Berrios, 28 N.Y.2d 361 [1971]). In determining the admissibility of evidence seized from a defendant, the Court must consider the full extent of the conduct between the police officer and defendant during the time in which the evidence was seized. Here, defendant claims that the beads must be suppressed as fruit of the poisonous tree of an alleged Dunaway and Payton violations. The Court has already found that there was no Dunaway or Payton violation and thus rejects defendant's contention that such evidence needs be suppressed as fruit of the poisonous tree. After defendant was Mirandized and made his statement, and while he was in custody of the police, Detective Ware recovered a beaded necklace from defendant's person which defendant had admitted, during his post- Miranda statement to have been wearing at the time of the shooting. This property was properly recovered incident to defendant's lawful arrest. Therefore, defendant's motion to suppress the beads is denied.
This constitutes the Opinion, Decision, and Order of this Court.