Opinion
04-30-2024
People of the State of New York v. R.R., Defendant.
For Defendant R.R.: Laurence L. Rothstein, Esq. For the People: Kings County District Attorney's Office By: Danyelle Shapiro, Esq., Assistant District Attorney
Unpublished Opinion
For Defendant R.R.: Laurence L. Rothstein, Esq.
For the People: Kings County District Attorney's Office By: Danyelle Shapiro, Esq., Assistant District Attorney
Joanne D. Quiñones, J.
The defendant is charged with Attempted Murder in the Second Degree and other offenses in relation to an incident alleged to have occurred on September 18, 2022. The defense moves to suppress statement evidence. This court conducted a combined Huntley/Dunaway hearing on December 18, 2023, March 6, 2024, March 7, 2024, and March 26, 2024. The People presented four witnesses: Police Officer Bradley Arcos, Detective Melissa DePalma, Detective Jeanyvens Morand, and Police Officer Triston Trunk. The defendant also testified on his own behalf. After the testimony was concluded, the court heard oral arguments from both sides.
December 18, 2023 (tr at 1-95); March 6, 2024 (tr at 96-122); March 7, 2024 (tr at 123-176); and March 26, 2024 (tr at 177-245).
The court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
Police Officer Bradley Arcos
Police Officer Bradley Arcos has been employed with the New York City Police Department (NYPD) for approximately seven years (tr at 9). He is currently assigned to the 88th Precinct as a patrol officer (tr at 9).
Officer Arcos testified credibly that on September 26, 2022, he was on patrol in a marked police vehicle with his partner Officer Lataarmijos (tr at 9-10). At approximately 4:15 p.m., he received a "hit" on his license plate reader (LPR) (tr at 10). He explained that a license plate reader is a device installed in police vehicles that reads license plates automatically, and a "hit" is an alarm that notifies the police if a car is stolen, has an expired registration, or is associated with other offenses (tr at 11-12). In this case, the LPR gave a hit for the license plate of a 2018 white Honda Accord (tr at 10-12). Officer Arcos checked his computer to confirm that the alarm was a valid alarm for the correct car and then pulled the car over (tr at 12, 15). Officer Arcos asked the driver for license and registration and was provided with a New York State driver's license bearing the name R.R. (tr at 17).
Officer Arcos returned to his police vehicle and learned that the car was wanted in connection with a non-fatal shooting and that there was also an active probable cause I-Card for the driver, R.R. (tr at 15, 23). He spoke with the detective that issued the I-Card, Detective Morand of the 70th Precinct, who informed him that R.R was wanted for his alleged involvement in a non-fatal shooting (tr at 16, 21, 23). Officer Arcos then placed R.R., who he identified at the hearing as the defendant, under arrest and transported him to the 88th Precinct and then to the 70th Precinct (tr at 17-18).
Officer Arcos' body worn camera (BWC) was received into evidence as People's Exhibit 1 (tr at 13-14). As reflected in his BWC, while Officer Arcos was in his patrol vehicle speaking to Detective Morand, his partner brings him a phone and tells him, "talk to his detective, Trunk, he's another detective. He doesn't like ours" (People's Exhibit 1, Officer Arcos' BWC at 8:14-8:23 [emphasis added]). Officer Arcos then spoke to Detective Trunk and informed him that he would be bringing him in to the 70th Precinct pursuant to an I-Card issued by Detective Morand (id. at 8:24-8:48). The defendant is then handcuffed and as he is being escorted, he asks "I'm being arrested? But you just spoke to the detective, right?" (id. at 11:30-11:58). Later when the defendant is asked whether he wants his passenger to make any calls for him, he states, "Yeah, I want her to call Detective Trunk... it's the first number on the call log" (id. at 14:10-14:49).
Detective Melissa DePalma
Detective Melissa DePalma is a detective with the NYPD, currently assigned to the 70th Precinct Detective Squad (tr at 159). She testified credibly that on September 18, 2022, she became involved in the investigation of a shooting and robbery incident that occurred between three and four in the morning at a restaurant in Kings County (the incident location) (tr at 161-163). At approximately 10:00 a.m. that day, she went to the incident location to attempt to collect video surveillance (tr at 161). She was able to review and collect video surveillance from four different camera angles at the incident location (tr at 162-165). A disc containing files downloaded from the restaurant's video surveillance was admitted into evidence as People's Exhibit 5 (tr at 165-167).
The detective also observed the live feed of the video surveillance and noted the time stamp on the DVR was approximately seven minutes faster in comparison to the live feed (tr at 164).
Using the video surveillance, Detective DePalma captured still photo images and created a wanted poster (tr at 168-169). The still image used for the wanted poster was admitted into evidence as People's Exhibit 2 (tr at 169-170). Other than collecting the video surveillance, creating the wanted flyer, and conferring with Detective Morand about the information she found, Detective DePalma had no further involvement in the case (tr at 170-172).
Detective Jeanyvens Morand
Detective Jeanyvens Morand has been employed by the NYPD for approximately 15 years and is currently assigned to the 70th Precinct Detective Squad (tr at 31).
The detective testified credibly that on September 18, 2022, he became involved in the investigation of a non-fatal shooting at the incident location (tr at 31-32). He learned about the shooting from his partner, Detective DePalma, who provided him with information and video surveillance that she had collected from the incident location (tr at 32-34). Detective Morand also reviewed Detective DePalma's DD5s (tr at 52, 82).
Detective Morand reviewed the video footage and then went to Kings County Hospital to interview the complainant (tr at 33-35). Detective Morand did not speak to the complainant on September 18, but observed that he had a cast on his left leg and a puncture wound under his right armpit (tr at 35). On cross-examination, Detective Morand conceded that the complainant "refused to talk," other than to say that somebody removed his necklace and that he was shot and stabbed (tr at 80). The complainant further advised the detective that he would not go on the record because he did not know who shot him (tr at 81-82).
After visiting the hospital, the detective went to the incident location "to do further canvass" for video surveillance and witnesses (tr at 35-36). Detective Morand's canvass results were negative, but the video team collected additional video footage which the detective reviewed once he returned to the precinct (tr at 36-37).
Detective Morand also spoke with Detective Lopez of the 70th Precinct Field Intelligence Officer (FIO) Squad, who informed him that Detective Trunk of the 71st Precinct had information "as to who did the shooting" (tr at 37-38). Detective Morand then called Detective Trunk (tr at 38). Detective Trunk advised Detective Morand that a person named R.R. called him and told him that he was involved in a situation that happened at the incident location, and that he had gotten into a fight and his son's friend pulled out a gun and shot someone (tr at 38-39, 109, 117). Detective Trunk also told Detective Morand that he and R.R. had "a working relationship," and provided an address for him (tr at 60, 87, 109).
While the two were still on the phone, Detective Morand texted Detective Trunk a screenshot of the wanted flyer created by the detective department (tr at 39-40, 53-54, 114, 117). The photo in the wanted flyer depicts three males and Detective Trunk identified R.R. as the person wearing a black jacket, white T-shirt, and black jeans (tr at 53-54, 114-115). After Detective Trunk identified R.R., Detective Morand issued a probable cause to arrest I-Card for R.R. (tr at 61, 110, 113, 116). Prior to Detective Trunk's identification, Detective Morand had also reviewed video footage of the incident which depicts R.R., who he identifies in court as the defendant, "hold[ing] a knife in his hand and pull[ing] out the chain from the complainant's neck and that's when a fight ensued and the defendant was knocked down, and at which point his friend pulled out a gun and shot the complainant" (tr at 63-65).
Detective Morand further testified that he observed video from the night of the incident showing the defendant exit a white Honda Accord wearing a black jacket, white T-shirt, and black jeans (tr at 65). The detective ran the defendant's name through various databases, including DMV, and learned that he was the owner of a white 2018 Honda Accord (tr at 65-66, 109). The detective then placed a felony alarm on the vehicle to let patrol personnel know the car was wanted in connection with a crime (tr at 66, 86, 108).
On September 26, 2022, the defendant's white Honda Accord was stopped by Officer Arcos, who had gotten a "hit" on the vehicle from his license plate reader (tr at 67). Officer Arcos called the detective from the scene and asked what the defendant was wanted for, and Detective Morand responded that he was wanted for a non-fatal shooting (tr at 67). The defendant was brought to the 70th Precinct, where Detective Morand then interviewed him (tr at 66). A video of the interrogation was introduced into evidence as People's Exhibit 3 (tr at 67-70).
Detective Morand testified that prior to speaking to the defendant, he read him his Miranda warnings and offered him food and water (tr at 71-72). Detective Morand testified that the defendant was "very reluctant" to speak at first because "he was afraid this would actually bring [him] into court by him telling on his friends" (tr at 72). During the interrogation, the defendant was shown a screenshot of video surveillance taken from inside the incident location (tr at 73). Upon seeing the screenshot, the defendant said "yes, that's me" (tr at 73). The defendant then signed his name and wrote the date and time on the image (tr at 74). The screenshot was admitted into evidence as People's Exhibit 4 (tr at 74-77).
The video interrogation reflects that once the defendant enters the room, he asks about the presence of the camera and then, as Detective Morand begins to elicit pedigree information, the defendant asks whether he could talk to Detective Trunk "before I speak to y'all" (People's Exhibit 3, Video 1 #544355 at 8:35). The video further reflects a back and forth between Detective Morand and the defendant prior to the administration of the Miranda warnings (id. at 9:16-11:18). Detective Morand and the defendant had the following exchange:
Detective Morand: Alright. Before I talk to you. Before anything... that's just procedure. It has nothing to do or take away from anything. I just got to read you your rights. Is that ok with you?
The Defendant: Huh? So nothing I say will change the situation?
Detective Morand: I'm not, like I said I'm not... I don't really know what you have to say. I talk to Trunk but I just got to talk to you and get your side of the story. You know what I mean?
The Defendant: But regardless of what, I'm going through booking?
Detective Morand: Regardless of that, that's not really up to me.
The Defendant: Based on what I tell y'all then.
Detective Morand: I mean like I said that's just you like you know you cooperating with us that's actually you know a good thing, you know what I mean? Again, I just need your side of the story. See how we can move forward.
The Defendant: I mean I told Trunk what I know.
Detective Morand: Ok. So whatever you told him you can tell me, you know what I mean. That's what I'm trying to tell you.
The Defendant: I don't I don't... I know y'all doing y'all job. I don't like me being here like giving y'all a statement... and I'm going to be arrested...
Detective Morand: I'm not going to write anything... that's what I'm saying to you.
The Defendant: I mean you don't gotta' write nothing. I'm pretty sure there's cameras all over.
Detective Morand: Like I said I'm not even going to write nothing but before I talk to you, it's up to you. You know what I mean I am not forcing you so just like I said it's good it's actually good that I get your side of the story instead of going by what I know. I don't want to do that that's why I am here talking to you.
The Defendant: [talks about mom being sick]
Detective Morand: I hear you like I said I'm...
The Defendant: Ahhh man, whatever y'all want to know man.
Detective Morand: I am just trying get it in and out.
The Defendant: Whatever y'all want to know man.
Detective Morand: So after every question I just like for you to say yes or no, ok?
The Defendant: Copy
Detective Morand: Alright, you have the right to remain silent and refuse to answer any questions. Do you understand?
The Defendant: Yes sir.
Detective Morand: I can't hear you, bro.
The Defendant: Yes sir.
Detective Morand: Alright, anything you do say may be used against you in the court of law. Do you understand?
The Defendant: (Pause) I'm saying so why you...
Detective Morand: I'm saying so do you understand?
The Defendant: Nah.
Detective Morand: Huh?
The Defendant: Nah, because whatever I tell you, you can use that now, right? That's basically what that says.
Detective Morand: That's just, I'm not saying that, I just...
The Defendant: Why do you even have to read me that, though, man...
Detective Morand: I understand that but like for like that's just procedure for me, I cannot just say ok, know what I mean?
The Defendant: So, you're basically telling me that whatever I tell you, you can use this in court?
Detective Morand: I'm not saying that's what'll happen, but I'm telling you I got to read you this, just in case.
The Defendant: I'm just trying to help y'all, I don't want my name linked to nothing.
Detective Morand: Like I said, I'm not writing anything down. Again, I'm just saying, I'm just here to get your side of the story. I wasn't there, so just tell us... you know... but before you tell us what happened I got to make sure I read you this. To cover me, to cover you, that's it. That's it, there's no...
The Defendant: It ain't covering me though if I'm voluntarily telling you something. You know what I'm saying? It's like you could've came to my house, I could've saw you outside.
Detective Morand: But see that's what I'm saying. If you want to talk...regardless of whatever you tell me what's the big deal? If you, if you still want to tell me what's this or what's that...
The Defendant: I just don't like the way that sounds, whatever I say may be used against me.
Detective Morand: Unfortunately, that's how they wrote it, bruh. I didn't write it. You know what I mean? Unfortunately, that's how they wrote it.
The Defendant: Whatever is going to help me man.
(People's Exhibit 3, Video 1 #544355 at 9:16-13:06). After this exchange, the detective repeats the second Miranda question, "Alright, anything you do say may be used against you in the court of law, do you understand?" and the defendant responds, "Yes, sir" (id. at 13:06). The detective then proceeds to give the defendant the remaining Miranda warnings (id. at 13:07-13:39).
Police Officer Triston Trunk
Police Officer Triston Trunk has been employed with the NYPD for approximately nine years (tr at 126-127). In September 2022, at the time of this incident, Officer Trunk was a detective assigned to the FIO Unit (tr at 127-128). As a member of the FIO Unit, his duties included addressing community complaints, responding to violent crimes, and working with informants (tr at 127, 129, 201-202). In May 2023, Officer Trunk was demoted from detective to officer due to computer misuse (tr at 139).
I credit Officer Trunk's testimony to the extent set forth herein. On September 18, 2022, Officer Trunk was off from work, at home, when he received a phone call on his work phone from the defendant (tr at 129-130). Officer Trunk explained that he knew it was the defendant on the phone because he had previously spoken to him on the phone about five times and because the defendant specifically said, "it's me, R.R" (tr at 130). He further stated that he recognized the phone number that was calling him as the defendant's (tr at 133-134)
The phone call lasted "a couple of minutes" and according to Officer Trunk, the defendant "seemed like he was in a panic" (tr at 130, 133). The defendant told Officer Trunk that "an incident had occurred early that morning and he saw it on the news and he was scared that he was going to get in trouble" (tr at 133). The defendant further stated that he was involved in an altercation at the incident location, and that his son's friend shot somebody (tr at 133-134).
After the conversation ended, Officer Trunk "investigated it a little bit" and confirmed that there had been a shooting at the location (tr at 134, 153). The officer then contacted the 70th Precinct and spoke to Detective Lopez, who he knew, and provided him with the information he received (tr at 135, 153). After speaking to Detective Lopez, Officer Trunk received a call from Detective Morand and told the detective what the defendant had shared with him (tr at 135-136). Detective Morand responded that the incident had actually occurred "a little differently" than how the defendant had represented and sent Officer Trunk a picture via email (tr at 136). Officer Trunk then identified the defendant as the person in the far left, wearing a white T-shirt in People's Exhibit 2 (tr at 137).
Officer Trunk testified that he knew the defendant for "at least five years," and later indicated that he's known him "[s]ince [he's] been on this job. So approximately... eight or nine years" (tr at 131, 196). Officer Trunk met the defendant while working as a FIO (tr at 141, 201). Although he could not recall the exact year nor the circumstances surrounding how they met, he stated that prior to September 18, 2022, he and the defendant had approximately five over-the phone interactions, all lasting a couple of minutes (tr at 130). He further testified that prior to September 18, 2022, he had approximately ten prior interactions with the defendant, five of which were within the year before September 18, 2022, and a couple of which were in-person, face-to-face interactions (tr at 131).
Officer Trunk described one interaction that occurred on November 10, 2021, when the defendant surrendered a gun to the precinct (tr at 140-141, 184). Prior to this interaction, the defendant had been arrested by the 71st Precinct and his automobile was seized (tr at 140, 190). The defendant came to the precinct and was debriefed by Officer Trunk (tr at 141). Officer Trunk explained that as a FIO, it was his job to conduct debriefing and gather information from informants (tr at 141). Officer Trunk and the defendant had a conversation about the defendant surrendering a gun in exchange for assistance with getting his car back (tr at 190-191). However, the defendant told Officer Trunk that he did not want to meet face-to-face again because he did not want to be found in possession of the gun nor be seen cooperating with the police (tr 184-185). Instead, the defendant agreed to call the officer once he placed the gun in the agreed upon spot and Officer Trunk recovered the gun shortly thereafter (tr at 146). Officer Trunk initially stated that this interaction lasted 30 minutes, but later said it was "at least 10 minutes" (tr at 140-141, 194-195, 200). Officer Trunk memorialized the recovery of the gun in a DD5 (tr at 147).
Officer Trunk further testified that after the recovery of the gun, he observed the defendant in person approximately three times (tr 195). These interactions were "very brief, like a hi and bye, like more of passing" (tr at 195).
The defendant
The defendant testified on his own behalf. He corroborated Officer Trunk's testimony that the two had a conversation in November 2021 regarding his having "something to give" in exchange for the return of his vehicle, which had been seized by the police (tr at 206-207). However, he insisted the conversation was over the phone, and not in person (tr at 207, 209, 221). The defendant denied that the two had any face-to-face interactions or ever saw each other on the street (tr at 212). In fact, the defendant claimed he never met Officer Trunk and stated that until Officer Trunk came to testify in this case, he would have been unable to recognize him (tr at 207, 212).
According to the defendant, on November 9, 2021, he was arrested and his car was seized (tr at 206, 221). Initially, he claimed that he was not arrested by the 71st Precinct, then he claimed not to remember which precinct he was arrested by, and finally he admitted that he was arrested in the 71st Precinct (tr at 215, 220, 221). After his release, he went to the 71st Precinct to ask about getting his car back and was told that he had to get it registered (tr at 207). Because the defendant's license was suspended at the time, he asked the officers, "If I have some - something, who do I talk to?" and the officers gave him a phone number (tr at 207). The defendant called the phone number, and it was Officer Trunk (tr at 207). According to the defendant, the two agreed over the phone that the defendant would surrender a firearm in exchange for his car (see tr at 207, 215). However, because the defendant was afraid of getting arrested if he brought the firearm to the precinct, he told Officer Trunk that he would just leave the firearm somewhere and the officer could go get it (tr at 207).
The next day, on November 10, 2021, the defendant placed the firearm in a box and placed it on the floor across the street from the precinct (tr at 208). The defendant then called Officer Trunk to tell him he could pick up the firearm and Officer Trunk told him he could pick up his car (tr at 207-209). The defendant then returned to the precinct to pick up his vehicle (tr at 207-208, 224-225). He explained that he went inside the precinct and walked around the back where an officer brought him his car (tr at 208-209, 224-225). The defendant emphasized that he didn't see Officer Trunk in person on November 9, 2021, the date of his arrest, nor on November 10, 2021, the date he returned to the precinct to retrieve his car (tr at 207, 209, 215, 224-225).
In September 2022, the defendant called Officer Trunk in connection with the instant matter (tr at 209, 211). According to the defendant, he told Officer Trunk that his probation officer had texted him "a wanted picture for assault" containing his name and picture (tr at 211-212, 226-227). On direct examination, the defendant testified that it was the flyer that was previously sent, but on cross-examination, he stated that People's Exhibit 2, the wanted flyer, was not the photo sent to him by his probation officer (tr at 211, 217). The defendant further stated that he called Officer Trunk because he wanted to know what it was about and see "if [Officer Trunk] could look into it for [him]" (tr at 223, 226-227, 228, 231). The defendant admitted that he had Officer Trunk's phone number and that they had a prior relationship, but claimed to have only spoken to him two or three times over the phone prior to September 2022 (tr at 214, 223, 232). The defendant could not recall if he told Officer Trunk anything about his involvement in the incident that happened at the incident location (tr at 227). The defendant's testimony was at times inconsistent. Moreover, his testimony that he had only spoken to Officer Trunk two to three times prior to September 2022 seems incredible, in light of the fact that in a matter of eight days, from the date of the incident on September 18, 2022 to the date of his arrest on September 26, 2022, he spoke with Officer Trunk twice, once to tell him to "look into it" and the other on the date of his arrest as reflected in Officer Arcos' BWC. Moreover, as further reflected on Officer Arcos' BWC, the defendant directed his passenger to call Officer Trunk, "the first number on the call log," and later when speaking to Detective Morand, asked whether he could speak to Detective Trunk before speaking with Detective Morand.
CONCLUSIONS OF LAW
Dunaway
At a suppression hearing, the People bear the initial burden of showing, by credible evidence, the lawfulness of the police conduct (People v Hernandez, 40 A.D.3d 777, 778 [2d Dept 2007]; People v Moses, 32 A.D.3d 866, 868 [2d Dept 2006]; see also People v Wise, 46 N.Y.2d 321, 329 [1978]; People v Whitehurst, 25 N.Y.2d 389, 391 [1969]). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v De Bour, 40 N.Y.2d 210, 222 [1976]). If the People satisfy their initial burden, the defendant "bears the ultimate burden of proving that the evidence should not be used against him" (People v Berrios, 28 N.Y.2d 361, 367 [1971]).
"Probable cause to arrest requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense" (People v Wright, 8 A.D.3d 304, 307 [2d Dept 2004], citing People v Bigelow, 66 N.Y.2d 417, 423 [1985]). "[I]n determining whether a police officer has probable cause for an arrest, 'the emphasis should not be narrowly focused on... any... single factor, but on an evaluation of the totality of circumstances, which takes into account the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents'" (Wright, 8 A.D.3d at 307 [internal citations omitted]).
In this case, Detective Morand, the lead detective, was investigating a non-fatal shooting that occurred on September 18, 2022 at the incident location. On that same date, the detective reviewed video surveillance of the incident which depicts an individual with a knife pull a chain from the complainant's neck, followed by a fight, and then another individual shoots the complainant with a gun. The detective also met with the complainant who refused to provide a description of his assailant or assailants but confirmed that someone removed his necklace, and he was shot and stabbed. Later that day, the detective spoke with Officer Trunk, who had reached out to the 70th Precinct, to provide them with the information he had received. Officer Trunk informed the detective that a person he knew as the defendant told him that he was involved in a situation at the incident location, that he had gotten into a fight and that his son's friend had shot someone. Officer Trunk further advised the detective that he knew the defendant because they shared a "working relationship." Detective Morand then sent Officer Trunk a screenshot of the wanted flyer. Officer Trunk identified one of the males in the wanted flyer as the defendant. After Officer Trunk's identification, Detective Morand issued a probable cause I-Card for the defendant.
It is well settled that a confirmatory identification establishes probable cause to justify an arrest (see People v Gonzalez, 91 N.Y.2d 909, 910 [1998] [search and arrest of defendant deemed lawful because it occurred after a confirmatory identification]). A confirmatory identification is one made by "a family member, former friend or long-time acquaintance" such "that there is 'little to no risk' that police suggestion could lead to a misidentification" (People v Rodriguez, 79 N.Y.2d 445, 450 [1992], citing People v Collins, 60 N.Y.2d 214, 219 [1983]).
Here, the evidence adduced at the hearing establishes that Officer Trunk had sufficient prior familiarity with the defendant to render his identification confirmatory. First, it is undisputed that Trunk and the defendant were known to one another and had a "prior relationship" whereby the defendant felt he could call Officer Trunk to ask him "to look into" a situation. Although the defendant claimed he could not remember whether he told Officer Trunk about his involvement at the incident location, he admitted that he called Officer Trunk on September 18, 2022, the very date of the incident, to ask him to look into why he was "wanted for assault."
Second, Officer Trunk testified credibly that he knew the defendant through his role as a FIO. Officer Trunk described one face-to-face interaction in November 2021 where the defendant surrendered a firearm to the 71st Precinct. He further stated that he had interacted with the defendant approximately ten times, in-person and over the phone during the year preceding the September 18, 2022 incident. The defendant's claim that he never met Officer Trunk and had only spoken to him two or three times over the phone prior to September 2022 is contradicted by his actions on the day of his arrest. Upon being stopped by Officer Arcos, the defendant called Officer Trunk to intervene and speak to Officer Arcos on his behalf. When the defendant learned that he was being arrested anyway, he sought assurances from Officer Arcos that he had indeed talked to Officer Trunk. Lastly, once inside the police vehicle and again before speaking to Detective Morand at the 70th Precinct, the defendant requested to speak to Officer Trunk.
Further, upon learning the defendant's name from Officer Trunk, Detective Morand searched a DMV database and learned that the defendant owned a white 2018 Honda Accord. Video surveillance on the night of the incident showed an individual wearing the same clothing as that worn by the person Officer Trunk identified as the defendant exit a white 2018 Honda Accord in the vicinity of the incident location.
Here, the totality of the information known to Detective Morand prior to the defendant's arrest, which included video surveillance, the defendant's statements to Officer Trunk, and Officer Trunk's confirmatory identification, established sufficient probable cause for the defendant's arrest (see People v Geddes, 171 A.D.3d 1210 [2d Dept 2019] [based on totality of the circumstances, police had probable cause to arrest]; Wright, 8 A.D.3d at 304 [under the totality of the circumstances, the police possessed probable cause for the arrests]). Accordingly, Detective Morand's issuance of a probable cause I-Card for the defendant and of a felony alarm on the defendant's vehicle were proper.
The stop of the defendant's vehicle and his subsequent arrest on September 26, 2022 were also lawful. In this case, the defendant's car was stopped by Officer Arcos after the officer received an alarm on his LPR flagging the defendant's car, a 2018 white Honda Accord. The Court of Appeals has held that running a license plate number is not a "search" under the Fourth Amendment, and therefore, the results obtained from running a license plate check may provide probable cause for a traffic stop (see People v Bushey, 28 N.Y.3d 158, 160 [2017]). In People v Balkman, the Court of Appeals further held that when police stop a vehicle based on information provided by a license plate check and the defendant challenges its sufficiency, the People must present evidence of the content the license place check produced (35 N.Y.3d 556, 559 [2020].
Here, Officer Arcos testified that his license plate reader flagged the defendant's car. Before pulling over the car, Officer Arcos confirmed that the alarm was a valid alarm for a 2018 white Honda Accord (see Bushey, 28 N.Y.3d at 164 [police stop of automobile lawful after license plate check revealed vehicle had a suspended registration]; see also People v Diggs, 38 A.D.3d 565 [2d Dept 2007] [traffic stop deemed proper where basis for stop was that information from a police computer run showed vehicle had suspended registration]). Officer Arcos also learned that there was a probable cause I-Card for the defendant for a non-fatal shooting.
Pursuant to the fellow officer rule, an arrest is lawful if an arresting officer who lacks personal knowledge to establish probable cause acts "upon the direction of or as a result of communication with a fellow officer... in possession of information sufficient to constitute probable cause for arrest" (People v Ketcham, 93 N.Y.2d 416, 419 [1999]). Here, there was a probable cause I-Card for the defendant in connection with a non-fatal shooting. Officer Arcos verified the I-Card by calling Detective Morand, the detective who issued it. Detective Morand confirmed that the defendant was wanted by him for his involvement in a non-fatal shooting. After receiving this information, Officer Arcos placed the defendant under arrest. Thus, insofar as Officer Arcos not only knew that there was an active I-Card for the defendant's arrest but also verified the nature of the I-Card by speaking to the issuing detective directly, the officer acted with sufficient knowledge to establish probable cause for the arrest.
Accordingly, the defendant's motion to suppress evidence on Dunaway grounds is denied.
Huntley
With respect to the Huntley portion, the People bear the burden of proving beyond a reasonable doubt that the statements were voluntary. It is manifest that 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]). "However, both the elements of police 'custody' and police 'interrogation' must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda" (People v Huffman, 41 N.Y.2d 29, 33 [1976]).
Here, it is undisputed that at the time the defendant made his videotaped statement to Detective Morand he was in custody. The defendant was arrested on a probable cause I-card, involuntarily brought to the precinct, and a reasonable person would not have believed that he or she was free to leave the precinct under the circumstances.
The court has carefully reviewed the interrogation video. At the start of the interrogation, despite Detective Morand's testimony that the defendant was offered but did not want water (see tr at 71), Detective Morand states, "So you wanted the water, right" and then hands the defendant a bottle of water, which the defendant drinks from throughout the interrogation. The defendant was not handcuffed or otherwise restrained during the interrogation, nor is there any evidence that threats were made or guns were present during questioning.
The detective began the interrogation by collecting pedigree information from the defendant such as his full name, date of birth, home address, and contact phone number. The pedigree questions asked of the defendant at the commencement of Detective Morand's questioning and prior to Miranda warnings were permissible because pedigree information falls outside the scope of Miranda protections (see People v Hester, 161 A.D.2d 665, 666 [2d Dept 1990] ["Pedigree questions may be asked of a defendant without providing Miranda "]).
The central question on the Huntley issue is whether Detective Morand sufficiently administered the Miranda warnings to the defendant. Exculpatory or inculpatory statements adduced from custodial interrogation are admissible where the prosecution demonstrates that an individual is first advised of the following safeguards: "they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to the presence of an attorney prior to and during the course of questioning, and that if they cannot afford an attorney one will be appointed for them prior to any questioning" (People v Dunbar, 104 A.D.3d 198, 205-206 [2d Dept 2013], affd 24 N.Y.3d 304 [2014]). An individual may then waive their constitutional rights so long as it is shown "that the waiver was made with 'a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it'" (id. at 206, quoting Moran v Burbine, 475 U.S. 412, 421 [1986]).
Here, Detective Morand, using a preprinted form, read each Miranda warning to the defendant in English. There is no doubt that "[t]he admonitions set forth in Miranda do not require a catechistic recitation of warnings in any particular language or form, however, the warnings given must reasonably and clearly convey to the suspect his rights" (People v Tan Lin Jhu, 59 Misc.3d 1228 [A] [Sup Ct, Kings County 2018]; see People v Bracero, 117 A.D.2d 740, 741 [2d Dept 1986]).
Prior to administering Miranda warnings, Detective Morand engaged in a colloquy and preamble which "effectively vitiated or at least neutralized the effect of the subsequently-delivered Miranda warnings" (People v Dunbar, 24 N.Y.3d 304, 316 [2014]). The detective informed the defendant that the forthcoming Miranda warnings were "just procedure" and that they have "nothing to do or take away from anything, I just got to read you your rights."The detective then engaged in a pre- Miranda coaxing campaign to warm the defendant up to the interrogation. He told the defendant, "I just got to talk to you and get your side of the story" and that the defendant cooperating with law enforcement is "actually you know a good thing, you know what I mean? Again, I just need your side of the story. See how we can move forward." The preamble and coaxing continued prior to Miranda warnings being issued. When the defendant expressed hesitation to continue, the detective informed the defendant that he can tell the detective whatever he communicated to then-Detective Trunk and then the detective repeated his prior statements, "it's actually good that I get your side of the story instead of going by what I know. I don't want to do that that's why I am here talking to you."
The detective's pre- Miranda statements to the defendant clearly exceeded permissible constitutional bounds. These statements taken as a whole "conveyed to the defendant that he ought to speak to the detective investigator... at the interview in order to set forth his version of events so that they could be investigated" (People v Rivera, 128 A.D.3d 1100, 1101 [2d Dept 2015]). In Rivera, the Second Department held that a detective's introductory remarks to the following effect rendered subsequent Miranda warnings inadequate:
(1) "if you agree to speak with us, you may, if you wish, explain what you did and what occurred at that date, time, and place," (2) "[i]f... you have an alibi... and you want to tell us where you were, we will ask that you please give us as much information as you can, including the names of any people you were with," and (3) "[i]f you agree to speak to us and your version of the events of that day differs from what we have heard, you may, if you so choose, tell us your story"(id. at 1101). In this case, Detective Morand's preamble far exceeded the remarks found impermissible in Rivera and minimized the significance of Miranda warnings. In Miranda, the United States Supreme Court emphasized the importance of the warnings. The Court explained that the safeguards that we today know as Miranda warnings, are intended to combat the "inherently compelling pressures" of custodial interrogation and "to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored" (Miranda, 384 U.S. at 467). Here, Detective Morand chose expediency over constitutionality to obtain a waiver of Miranda warnings, which rendered the subsequent warnings meaningless.
Moreover, contrary to the People's contention, Detective Morand's statements to the defendant during the administration of Miranda eviscerated the defendant's ability to adequately comprehend the rights which he was asked to waive. In evaluating the defendant's ability to understand the import of the Miranda warnings, the court finds the Appellate Division, Second Department's holding in People v Galvez-Marin instructive (225 A.D.3d 622, 624 [2d Dept 2024]). In that case, the Second Department found that "the detective's pre-warning statements that the Miranda warnings did not 'mean anything' and were 'just part of the process,' viewed in conjunction with the defendant's unresolved confusion as to whether he could answer the detectives' questions, does not demonstrate that the defendant had a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it" (id. at 624).
Similarly, here, Detective Morand advised the defendant that the Miranda warnings were "just procedure." Further, when the defendant was first advised that "Anything you do say may be used against you in the court of law. Do you understand?" the defendant answered "nah." The defendant continued, "Nah, because whatever I tell you, you can use that right now, right? That's basically what that says" and the detective responded, "That's just, I'm not saying that, I just...." (People's Exhibit 3, Video 1 #544355 at 11:26-11:44). Next, the defendant asked, "why do you even have to read me that, though, man?" and the detective responded, "I understand that but like, for like, that's just procedure for me, I cannot just say ok, know what I mean?" (id. at 11:45-11:54). The defendant, seeking further clarification, then asked, "So, you're basically telling me that whatever I tell you, you can use this in court?" and the detective answered, "I'm not saying that's what'll happen, but I'm telling you I got to read you this, just in case" (id. at 11:54-12:02). Approximately one minute later, when the defendant again expressed discomfort and uncertainty with "the way that sounds, whatever I say may be used against me," the detective again devalued the constitutional right at issue by casting it off as "Unfortunately, that's how they wrote it" (id. at 12:48-12:58). Most egregiously, throughout the back and forth between the detective and the defendant on the meaning of this constitutional safeguard, Detective Morand misled, misstated and misrepresented.
Like in Galvez-Marin, here, it cannot be said that the record in this case demonstrates that the defendant sufficiently comprehended the safeguards promised by Miranda; thus, the non-pedigree statements elicited during the interrogation were not the product of a knowing and voluntary waiver. Furthermore, Detective Morand's immediate restatement of the Miranda warning was insufficient to cure the taint from his improper comments as they were part of a single continuous chain of events (see People v Mateo, 148 A.D.3d 727, 729 [2d Dept 2017]; People v Rodriguez, 132 A.D.3d 781, 783 [2d Dept 2015]).
Accordingly, the defendant's motion to suppress his videotaped statement on Huntley grounds is granted.
This constitutes the Decision and Order of the court.