Opinion
3272/2018
05-14-2019
The PEOPLE of the State of New York v. Omar LOPEZ, Defendant.
Eric Gonzalez, Esq., Kings County District Attorney, by Assistant District Attorney Garey Pierce, for the People of the State of New York. Legal Aid Society, by Joseph Austin, Esq. and Julie Shaul, Esq., for Defendant, Omar Lopez.
Eric Gonzalez, Esq., Kings County District Attorney, by Assistant District Attorney Garey Pierce, for the People of the State of New York.
Legal Aid Society, by Joseph Austin, Esq. and Julie Shaul, Esq., for Defendant, Omar Lopez.
Miriam Cyrulnik, J.
The decision and order of this court dated May 9, 2019 is recalled and the instant decision and order is filed in its place.
This court presided over a combined Dunaway / Mapp / Huntley hearing on March 6 and March 29, 2019. The People called Police Officers Edward Mockler, Mario Dorcilien, Cassely Chery and Rosaline Pacheco as a witnesses.
Having had the opportunity to hear the testimony of the witnesses, observe their demeanor and assess their veracity, the court finds them to be credible. Upon considering the testimony and exhibits, as well as the written submissions by counsels, the court makes the following findings of fact and conclusions of law, based upon the material, relevant evidence adduced:
Statement of Facts
Police Officers Mockler, Dorcilien, Chery and Pacheco are all assigned to Transit District 34, which patrols the N, F, Q and R subway lines in the Brooklyn South sector of Kings County.
On April 29, 2018, at approximately 5:00 a.m., Officer Mockler received a radio run of a male with a gun on a train stopped at the 59th Street subway station in Brooklyn. He responded to the station with his partner, Officer Rivers.
Upon arrival on the northbound subway platform, Officer Mockler spoke to the witness who reported the man with the gun to 911. The witness refused to give his name, but told Officer Mockler that the man with the gun was in the next subway car, wearing all black. Officer Mockler proceeded to the end of the next car, where he observed a male sleeping in a corner seat. The officer did not note anything about defendant's appearance, except that he was asleep. Officer Mockler woke defendant, who complied with his request to step out of the subway car. Defendant was directed to stand near a bench on the platform. He was wearing multiple layers of clothing, including at least two jackets.
The court will first address the events as set forth in Officer Mockler's testimony. Additional information provided by Officer Mockler's body camera footage will be addressed infra .
Officer Mockler identified the man he observed sleeping in the subway car as defendant.
Officer Mockler testified that he asked defendant to step onto the subway platform in order to allow the train to continue moving.
Officer Mockler explained that he was investigating a report of a man with a weapon and asked defendant if he had anything on his person that he was not supposed to have. Defendant responded by nodding in the affirmative. Although defendant tried to speak, Officer Mockler determined that there was a language barrier. Nevertheless, Officer Mockler was able to understand that defendant acknowledged having a weapon, at which time the officer proceeded to perform a pat-down. Officer Mockler felt an object in the breast pocket of defendant's jacket. He determined that it was a firearm. Officer Chery, who was among the officers present on the platform, recovered a handgun from defendant's jacket. Officer Mockler described the handgun as a revolver. Defendant was placed under arrest and transported to Transit District 34.
A photograph of the handgun recovered from defendant's jacket was admitted into evidence as People's Exhibit 1.
Officer Mockler testified that the body camera he wore on April 29, 2018 was recording the incident in question. His body camera footage reveals that the unidentified witness refused to provide his name. He directed Officer Mockler to the opposite end of the next subway car, where he believed the man with the gun to be. The only description he can be heard providing was that the man was wearing dark shoes.
The video recording from Officer Mockler's body camera was entered into evidence as People's Exhibit 2.
Each officer's body camera footage begins with video only; there is a delay of several seconds before the audio begins. Officer Mockler's footage shows the unidentified witness speaking but the sound is not initially captured.
Officer Mocker proceeded to the end of the next car, where he was joined by several other officers. The body camera footage depicts two Hispanic men in the last quarter of that car. The man to Officer Mockler's left is seated, awake, and wearing a black jacket. The man to Officer Mockler's right (defendant) is seated, asleep, and wearing a black jacket. While standing in the doorway and surveying the subway car, Officer Mockler repeatedly expressed that he was not sure who was actually identified by the witness. Officer Mockler hesitated, repeatedly turning from side to side, observing the two Hispanic males, before declaring that the sleeping man to his right had to be the person to whom the witness referred.
The body camera footage next reveals that Officer Mockler, accompanied by at least two other officers, approached defendant, woke him and asked him to step out of the subway car. Once on the platform, the officers directed defendant to sit down on a bench. As he started to do so, however, they directed him to remain standing, more than one of them grasping his arms or clothing to pull him up. Officer Mockler then explained that he was investigating a report of a man with a gun and asked defendant if he had anything on his person he wasn't supposed to have. Defendant made several attempts to tell the officers about something that had happened earlier, but Officer Mockler told him that he did not wish to hear it. Speaking over defendant, Officer Mockler asked defendant, several times, if he had anything on his person and if the officers could search him. Ultimately, defendant relented, gesturing with his chin to his left, inside jacket pocket. Officer Mockler then patted down defendant's jacket and, apparently feeling something inside, asked defendant what it was. Defendant responded that it was a weapon. The ensuing discussion among the officers indicated that Officer Chery recovered a handgun from defendant's jacket, although Officer Mockler's body camera did not capture that image. Defendant was subsequently handcuffed, after which Officer Chery can be observed conducting a thorough search of his person.
While the officers were speaking to defendant, they were also physically and verbally controlling his movements. The body camera footage clearly depicts an officer to defendant's right physically restraining defendant's right arm whenever it is raised while defendant gestures with his attempts to speak. Officer Mockler and an officer off-camera also repeatedly tell defendant which way to face or turn his body during the encounter.
Following the recovery of the handgun, Officer Mockler suggested a radio call urgently requesting that the subway train from which defendant was escorted be held in the station.
Police Officer Dorcilien and his partner, Police Officer Chery, responded to the same radio run of a man with a gun at the 59th Street subway station. On the platform, they met Officers Mockler and Rivers, who advised them that the unidentified witness was on the train. Officer Dorcilien approached the witness, who said that he did not wish to be further involved in the investigation. He reported that the man with the gun had pointed it at him and threatened him in some way. He also confirmed that he believed the man with the gun was in the next subway car.
The court will first address the events as set forth in Officer Dorcilien's testimony. Additional information provided by Officer Dorcilien's body camera footage will be addressed infra .
Officer Dorcilien also testified that he approached the unidentified witness again, this time with his supervisor, who attempted to interview him as well.
Officer Dorcilien testified that he was present when Officer Mockler approached defendant and escorted him from the subway car. His recollection was that Officer Mockler searched defendant's person after defendant indicated that he had a weapon on his person. He also recalled observing Officer Chery recover the handgun from defendant's jacket.
Officer Dorcilien testified that the body camera he wore on April 29, 2018 was recording the incident in question. A review of his body camera footage reveals that although Officer Dorcilien was present when Officer Mockler escorted defendant from the subway car, he did not accompany his fellow officers onto the subway platform with defendant. Rather, he sought out the unidentified witness in the adjacent subway car and interviewed him. The interaction between defendant and the officers depicted on Officer Mockler's body camera footage and discussed supra , including the recovery of the handgun by Officer Chery, took place while Officer Dorcilien was in the adjacent subway car. According to Officer Dorcilien's body camera footage, defendant was being placed in handcuffs by the time he rejoined his fellow officers. It was after defendant was placed under arrest that Officer Dorcilien returned to the adjacent car with his supervisor to conduct another interview of the witness.
The video recording from Officer Dorcilien's body camera was entered into evidence as People's Exhibit 3.
The two interviews of the unidentified witness conducted by Officer Dorcilien and his supervisor elicited additional information that enhanced the witness' reliability and might have provided a basis to detain defendant. However, as will be discussed infra , their timing in the sequence of events prevents the People from relying upon them for that purpose.
Police Officer Chery next testified about responding to the same radio run of a man with a gun at the 59th Street subway station. Officer Chery testified that he and Officer Dorcilien interviewed the unidentified witness upon arriving on the subway platform. Officer Chery then encountered defendant in the subway car with Officers Mockler and Rivers. Officer Chery remained with Officers Mockler and Rivers as they escorted defendant to the subway platform. Officer Chery testified that he and Officers Mockler and Rivers stopped defendant and searched him. He further testified that he was the officer who recovered the loaded firearm from defendant's person.
The court will first address the events as set forth in Officer Chery's testimony. Additional information provided by Officer Chery's body camera footage will be addressed infra .
Officer Chery testified that the body camera he wore on April 29, 2018 was recording the incident in question. A review of his body camera footage reveals that upon arrival on the subway platform, Officers Chery and Dorcilien joined Officers Mockler and Rivers as they confronted defendant in the subway car. Once on the platform, Officer Dorcilien proceeded to the adjacent subway car while Officer Chery remained with Officers Mockler and Rivers to question defendant. Much like Officer Mockler's, Officer Chery's body camera footage depicts defendant surrounded by approximately four officers. After instructing defendant to sit on a bench on the platform, the officers countermanded the instruction, ordering defendant to remain standing and physically pulling him to his feet by his arms and clothing. As defendant stood up, Officer Chery unbuttoned a button on defendant's outermost jacket and tugged on the jacket to partially open it. Defendant attempted to report something that had happened to him earlier while Officers Mockler and Chery asked him questions and made physical contact with him. Officer Chery stood to defendant's right, repeatedly grasping defendant's right arm as he attempted to gesture while he spoke. Officer Chery also held defendant's right arm up and away from defendant's body at various times during the encounter. Ultimately, once defendant indicated that he had something in his jacket, Officer Mockler patted down the jacket and discovered an object in an inside pocket. Officer Chery then recovered the handgun from defendant's jacket as defendant was handcuffed by another officer.
The video recording from Officer Chery's body camera was entered into evidence as People's Exhibit 4.
Officer Dorcilien's body camera footage revealed that he proceeded to the adjacent car to interview the unidentified witness after defendant was escorted to the subway platform. Upon cross-examination, Officer Chery conceded that he was mistaken about being present when Officer Dorcilien interviewed the unidentified witness. His body camera footage confirms this.
Police Officer Pacheco testified that on April 29, 2018, at approximately 9:20 a.m., she was enlisted by Detective Chavez and Officer Rivers to act as a Spanish language interpreter for an interview of defendant. She stated that she is fluent in the Spanish and English languages. Officer Pacheco joined Detective Chavez and defendant in an interview room at Transit District 34. She could not recall if Officer Rivers was already in the room or if he entered sometime later. Defendant was offered refreshment and an opportunity to use the bathroom.
There was no testimony elicited as to whether she was NYPD-certified as a translator.
Detective Chavez then read Miranda warnings to the defendant, in English, from an English language Miranda form. Officer Pacheco did not translate the Miranda warnings verbatim . It was her determination that defendant largely understood English and that it was only necessary for her to explain those portions of the Miranda warnings that he did not understand, which she did. When pressed on cross-examination, however, Officer Pacheco could not recall which parts of the Miranda warnings required explanation. She ultimately testified that there were no portions of the Miranda warnings that defendant did not understand, since she "took it upon [herself] to make sure that he understood what Detective Chavez said and he did understand."
Following these Miranda warnings, defendant wrote a statement in Spanish. During the hearing, Officer Pacheco translated defendant's statement from Spanish to English for the record.
Defendant's statement was written on the English language Miranda form that Detective Chavez used to administer the warnings to defendant. The Miranda form, with defendant's written statement, was admitted into evidence as People's Exhibit 5.
PROBABLE CAUSE AND RECOVERY OF PROPERTY
(DUNAWAY / MAPP )
In People v. De Bour , 40 NY2d 210 (1976), the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity. The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality. The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion. The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime. The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime ( People v. Abdul-Mateen , 126 AD3d 986, 987-988 [2d Dept 2015], [citations omitted]; see also People v. Moore , 6 NY3d 496 [2006] ; People v. Hollman , 79 NY2d 181 [1992] ).
It is well settled that an anonymous tip received by a police officer "cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information - such as information suggestive of criminal behavior - so that the police can test the reliability of the tip" ( People v. Moore , 6 NY3d 496, 499 [2006], supra ; see also People v. William II , 98 NY2d 93 [2002] ; People v. Benjamin, 51 NY2d 267 [1980] ; People v. Morrow , 97 AD3d 991 [2012] ; People v. Sampson , 68 AD3d 1455 [2009] ; People v. Braun , 299 AD2d 246 [2002], lv denied 99 NY2d 612 [2003] ).
In Florida v. J.L. , 529 US 266 (2000), the issue before the court was "whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer's stop and frisk of that person" ( id. at 268 ). In holding that it is not, the U.S. Supreme Court noted:
An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person ( id. at 272 ).
An anonymous tip authorizes a police officer to make a common-law inquiry. It does not, without more, provide justification to detain or seize an individual (see People v. Moore , 6 NY3d 496, 500 [2006], supra ; People v. Abdul-Mateen , 126 AD3d 986, 988 [2015], supra ).
When acting upon an anonymous tip, "to elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior" ( People v. Moore , 6 NY3d 496, 500-501, supra ). However, the Court of Appeals has "frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause" ( People v. De Bour , 40 NY2d 210, 216 [1976], supra ) (citations omitted), observing instead that "[i]t is equally true that innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand." (id. )
In the case at bar, in addition to the anonymous tip received via radio transmission, Officer Mockler had the opportunity to speak to the source of the tip, who made himself known to the police at the scene. Refusing to provide his name, the witness' cooperation was limited to repeating that he observed a man with a gun in his jacket and directing the police to the next subway car, where he believed the man to be. The witness adamantly refused to accompany the police to that location, where he could have participated in a "point-out" identification. Instead, he directed Officer Mockler to the far end of the next car.
Officer Mockler's body camera footage (People's Exhibit 2) reveals that the witness indicated that the man with the gun was seated approximately 1½ train cars away from where he and Officer Mockler were positioned. From his seat, the witness directed Officer Mockler's attention to the far end of the next subway car. From their positions, the witness and the officer would have had to look down the length of the subway car they were in, through the windows of that car and those of the next, and then down the full length of the next car to see the area in which the witness believed the man with the gun was seated. The witness did not leave his seat to look down the subway cars or to assist Officer Mockler in specifically locating the man with the gun.
After speaking to the anonymous witness, Officer Mockler proceeded to the far end of the next subway car. His body camera footage reveals that once there, he found two Hispanic males, both wearing black jackets. One was awake and seated to the officer's left and the other (defendant) was asleep and seated to his right. As recorded by his body camera, Officer Mockler's words and actions clearly indicate that he was not sure which one was the individual to whom the witness referred. While he stood at the open train door, Officer Mockler repeatedly expressed that it was unclear to him which individual was described by the witness. Officer Mockler's confusion is also evident from his body camera images, which repeatedly depict the Hispanic males to his right and left as he turns back and forth, focusing his attention on each of them in turn. Ultimately, Officer Mockler chose the sleeping Hispanic male to his right (defendant), stating that "it must be him."
Neither Officer Mockler's hearing testimony, nor the body camera footage, provides any insight into why he chose the Hispanic male to his right (defendant) as opposed to the Hispanic male to his left.
A citizen informant, even if unidentified, may provide police with adequate cause to detain a suspect (see People v Colon , 95 AD3d 420 [1st Dept 2012], lv denied 19 NY3d 1025 [2012] ; People v Miles , 210 AD2d 353 [2d Dept 1994] ). However, certain factors must be present in the citizen informant's interaction with the police to ensure the reliability of their information before reasonable suspicion is established. In general, "the closeness of the temporal and spatial description of and encounter with the defendant," some action by the defendant, such as flight, and the observations of the police may combine to justify detention of a suspect ( People v Miles , 210 AD2d 353 [1994], supra ; People v Colon , 95 AD3d 420 [2012], supra ; People v Walker , 236 AD2d 491 [2d Dept 1997], appeal denied 89 NY2d 1016 [1997] ; compare, e.g. People v Polhill , 102 AD3d 988, 989 [2d Dept 2013], appeal dismissed 24 NY3d 995 [2014] [informant's on-the-scene description, which contained fewer specifics about the alleged perpetrators than did the radio run, deemed "too vague and general to supply reasonable suspicion to stop and detain"] ).
Although Officer Mockler engaged with the anonymous witness before confronting any suspects, the cooperation and information he received was limited. While he insisted that the man with the gun was just one subway car away, the anonymous witness did not provide a more detailed description than was broadcast to the officers by radio. Additionally, the witness refused to participate in an identification procedure and would only direct Officer Mockler to the general area where he believed the perpetrator to be. Finally, defendant, who was sleeping at the time he was confronted by the police, did not do anything to draw the attention of the police, let alone raise their suspicion that he had engaged in criminal behavior. As demonstrated by Officer Mockler's testimony and body camera footage, the information he received from the witness was not sufficient to provide him with a reasonable suspicion that defendant was committing, had committed, or was about to commit a crime, thereby justifying a forcible stop and detention (see People v. Moore , 6 NY3d 496 [2006], supra ; People v. Polhill , 102 AD3d 988 [2013], supra ; People v. Colon , 95 AD3d 420 [2012], supra ; People v. Walker , 236 AD2d 491 [1997], supra ; People v. Miles , 210 AD2d 353 [1994], supra ).
The witness refused to participate in a point-out before defendant was approached by the police. There was no testimony or other evidence presented regarding whether or not the police considered conducting a show-up identification once defendant was in custody.
The People concede, and the court agrees, that based upon the information provided by the unidentified witness, Officer Mockler had, at most, a right to make a common law inquiry of defendant. However, the People have failed to establish that the escalation of the encounter, from common law inquiry to seizure of defendant, was justified.
It is well-settled that "[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, that individual has been seized within the meaning of the Fourth Amendment" ( People v. Cantor , 36 NY2d 106, 108-109 [1975] ; see also People v. Bora , 83 NY2d 531, 534-535 [1994] ; People v. Boodle, 47 NY2d 398, 401 [1979] People v. Oliver , 262 AD2d 335 [2d Dept 1999] ; People v. McPherson , 165 AD2d 818 [2d Dept 1990] ).
In the case at bar, although defendant complied with Officer Mockler's request to step off the train, once on the platform he was promptly surrounded by at least four police officers. Defendant was directed to a bench and told to sit down. Before he could do so, he was told to remain standing. The officers were shoulder to shoulder with defendant, with at least two of them, Officers Mockler and Chery, making repeated physical contact with him. Body camera footage from People's Exhibits 2 and 4 clearly depict Officer Chery grasping defendant's right arm at the bicep, forearm and wrist and restraining defendant's right hand as it appeared to be moving toward defendant's pocket. Officer Mockler and other officers fired multiple questions at defendant, who having just been awakened, appeared disoriented and confused.
Based upon the testimony and evidence adduced at the hearing, particularly the body camera footage, the court finds that defendant was detained by the police at the time he stepped off the subway car onto the platform. The actions of the police, which consisted of surrounding defendant, issuing commands as to his positioning, restricting his body movements and making physical contact with him, clearly posed a significant interruption of defendant's movement (see People v. Cantor , 36 NY2d 106, 108-109 [1975], supra ; People v. Bora , 83 NY2d 531 [1994], supra ; People v. Boodle , 47 NY2d 398 [1979], supra ; People v. Lopez , 67 AD3d 708 [2d Dept 2009], lv denied 14 NY3d 772 [2010] ; People v. Riddick , 269 AD2d 471 [2d Dept 2000] ; People v. Oliver , 262 AD2d 335 [1999], supra ; People v. McPherson , 165 AD2d 818 [1990], supra ).
The court is not persuaded by the People's argument that the police were in the midst of a common law inquiry during which defendant's actions provided them with justification for escalation to a seizure. The People assert that defendant's actions while on the platform were "furtive," raising the officers' suspicions. However, the body camera footage fails to support this. Rather, it reveals that defendant behaved passively during the stop. He was clearly confused, having just been awakened, and it appears that a language barrier affected his communication with the officers. Despite these barriers, defendant was entirely forthcoming with the officers. His apparent awareness of the reason for being approached by the police is evidenced by his repeated attempts to offer his account of a recent encounter with a "white guy." When asked if he had anything on his person, he answered in the affirmative, gestured toward his inside jacket pocket and informed Officer Mockler that it was a weapon. Contrary to the People's interpretation of the interaction, nothing defendant did can be described as sufficiently suspicious or furtive to justify escalation of the encounter to a seizure.
By their Affirmation in Opposition, the People initially contended that the information known to the police provided justification to seize defendant. However, they appeared to abandon this position, asserting instead that a common law inquiry was permitted. They then went on to argue that defendant's actions justified the escalation of the encounter from a common law inquiry to a seizure.
In People v. Brown , 2019 NY Slip Op 03305 (1st Dept 2019), the police, relying solely upon an anonymous tip of a man with a gun and drugs in a bodega, confronted the defendant, who fit the general description they had received. Despite observing no illegal or furtive behavior, the officers prevented the defendant from leaving the bodega and decided to frisk him, purportedly for their safety. The defendant was walked five to ten feet to a counter, upon which he was directed to place his hands while he was frisked. When the defendant moved a hand toward a jacket pocket, an officer used force to prevent it, at which time a handgun fell out of the jacket.
The People argued that the defendant's attempt to reach into his jacket pocket provided the officers with reasonable suspicion to detain him. The court rejected this argument, pointing out that upon entry into the bodega, the officers "had no additional information indicative of criminality and made no observations of suspicious conduct or conduct that would pose a risk to the officers' safety or the safety of others" (id. ). The court recognized that the defendant was already seized by the time his movement gave rise to suspicion sufficient to detain him and that the movement did not "validate [the] police intrusion that was not justified at its inception" (id. )
Similarly here, the testimonial and body camera evidence established that even after interviewing the unidentified witness, Officer Mockler lacked additional information indicative of criminality sufficient to give rise to reasonable suspicion to detain defendant. Furthermore, when he proceeded to the subway car indicated by the unidentified witness, rather than observing suspicious or threatening conduct, Officer Mockler found defendant seated and asleep.
The anonymous information transmitted to Officer Mockler via radio, in combination with the limited additional information he received from the unidentified witness, authorized him to conduct a common law inquiry of defendant. Given the nature of the radio call and depending upon defendant's actions, Officer Mockler might have been entitled to subject defendant to the limited intrusion of a precautionary pat-down in the course of the common law inquiry. However, when Officer Mockler and his fellow officers escorted defendant onto the subway platform, the encounter was immediately escalated and defendant was seized (see e.g. People v. Hill , ––– NY3d ––––, 2019 NY Slip Op 03405 [May 2, 2019] ). This occurred before any reasonable suspicion that defendant was committing, had committed, or was about to commit a crime was established.
The common law right of inquiry would have extended to the other black-jacketed Hispanic male whom Officer Mockler observed in the same subway car as defendant.
"Where a police encounter is not justified in its inception, it cannot be validated by a subsequently acquired suspicion" ( People v. William II , 98 NY2d 93, 98 [2002], supra ; see also People v. McIntosh , 96 NY2d 521, 527 [2001] ; People v. De Bour , 40 NY2d 210, 215-216 [1976], supra ; People v. Brown , 2019 NY Slip Op 03305 (2019), supra ; People v. Sampson , 68 AD3d 1455, 1457 [3d Dept 2009], supra ). Having found that Officer Mockler lacked reasonable suspicion to detain defendant, the court finds that his subsequent search and arrest of defendant were effectuated without probable cause. The fact that the evidence establishes that the police acquired additional information after defendant was taken into custody does not operate to justify the illegal seizure.
The interviews of the unidentified witness conducted by Officer Dorcilien and his supervisor elicited additional facts that enhanced the reliability of the witness and might have provided the basis to detain defendant. However, this information was obtained after defendant was seized by Officer Mockler and his fellow officers. The People cannot rely upon this information to justify the seizure of defendant (see People v. Baily , 164 AD3d 815 [2d Dept 2018] ).
At a Mapp hearing, the People have the initial burden of establishing the legality of the search and seizure of the property recovered. The burden then shifts to defendant to prove, by a preponderance of the evidence, that the police conduct was illegal (see People v. Scott , 25 Misc 3d 1219[A] [Dist Ct Nassau County 2009] ). The People have failed to establish the legality of the search of defendant and seizure of the property in this case. Accordingly, defendant's motion to suppress the handgun recovered by Officer Chery is granted.
STATEMENTS
(HUNTLEY )
With respect to defendant's challenge of the admissibility of his written statement, the People must prove its voluntariness beyond a reasonable doubt (see People v. Holland , 48 NY2d 861 [1979] ; People v. Anderson , 42 NY2d 35 [1977] ; People v. Huntley , 15 NY2d 72 [1965] ). The People must also prove that defendant, who was subjected to a custodial interrogation, was advised of his Miranda rights and that he knowingly and voluntarily waived them (see Miranda v. Arizona , 384 US 436 [1966] ).
As stated in People v. Williams (62 NY2d 285, 288-289 [1984] ):
To be valid, an accused's waiver of his or her rights must be knowingly and intelligently made... [and] [a] court must always ascertain whether the defendant understood how the Miranda rights affected the custodial interrogation.... An individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process (citations omitted).
The court finds that the People have failed to establish beyond a reasonable doubt that defendant's written statement was voluntarily made.
Despite enlisting Officer Pacheco to provide Spanish language interpretation, Detective Chavez inexplicably chose instead to read English language Miranda warnings to defendant. Officer Pacheco, who may or may not have been NYPD-certified to act as a translator, testified that she explained those portions of the warnings that defendant indicated he did not understand. Yet she could not give specifics as to which portions of the warnings required explanation. She eventually acknowledged that she did not translate the English language Miranda warnings verbatim , but summarized them as needed.
Although there was no testimony on the issue, long experience informs the court that New York City police officers have ready access to Spanish language Miranda forms. No explanation for the failure to use one was elicited during the hearing.
When pressed further on which portions of the Miranda warnings caused defendant confusion, she ultimately offered her conclusion that there were none. The record is silent as to how she arrived at this crucial conclusion. She further stated that she "took it upon [herself] to make sure that he understood what Detective Chavez said and he did understand." How that was accomplished is unknown.
Officer Pacheco could have performed the simple act of providing a verbatim translation of the Miranda warnings. Rather, she and Detective Chavez provided a hodgepodge of English and Spanish language information, the substance and defendant's understanding of which are impossible to determine.
In addition, there is no testimony regarding the manner in which the Miranda warnings were read to defendant or his responses thereto. The People elicited no testimony about the purported acknowledgments on the English language Miranda form. It is unknown if the "yes" responses and initials appearing next to each warning on the form were written by defendant, or that they actually reflect his acknowledgment. Indeed, aside from Officer Pacheco's unexplained conclusions about defendant's general understanding of the warnings, there is no evidence that defendant was asked if he understood each one in turn.
The People have failed to prove beyond a reasonable doubt that the defendant understood his rights and waived them knowingly and voluntarily. Accordingly, defendant's motion to suppress his statement is granted.
This constitutes the Decision and Order of the Court.