Opinion
05-410.
Decided May 17, 2006.
Michael E. Bongiorno, Esq., District Attorney of Rockland County, for plaintiff.
Robert Kelly, Esq., Attorney for Defendant.
A combined Mapp/Huntley/Dunaway hearing was held pursuant to a prior order of this Court. The relevant findings of fact and conclusions of law are as follows:
Although not part of the Court's original Order, the Court granted defense counsel's oral application for a hearing to challenge the admissibility of statements and granted the defendant's written motion for a hearing to challenge seizure of the gun the defendant discarded while fleeing from the police.
On September 3, 2005, shortly after midnight, Sgt. Louis Scorziello, the desk officer at the Spring Valley Police Department received a phone call from Jacob Wilson. Mr. Wilson stated that while he was at 11 Columbus Avenue, a man had placed a gun to his head. Mr. Wilson described the suspect as a light skinned black male in his thirties wearing shorts and a baseball cap. At that time, Mr. Wilson indicated that he did not want to pursue criminal charges.
Nevertheless, Sgt. Scorziello broadcast the substance of the incident and a the description of the suspect. Several officers responded and canvassed the area, but no suspect was observed.
At approximately 2:30 a.m., Mr. Wilson again called Sgt. Scorziello. He stated that he now wanted to pursue charges. Further, he stated that he wished to enter 11 Columbus Avenue himself. Sgt. Scorziello again broadcast a summary of the incident and the description and location of the suspect. Several officers were again dispatched to 11 Columbus Avenue. Mr. Wilson then called back and stated that he could hear the man that menaced him inside the house.
As officers approached the front door, Officer Thomas Koziak took up position in the rear of the location. According to the defendant's statement, when the police knocked at the door, he panicked and fled out the second story window. Officer Koziak observed the defendant exiting from the window. According to Officer Koziak, the defendant generally fit the description in that he was a black male in his thirties and was wearing shorts. Further, the defendant was wearing some kind of cap. Most importantly, the defendant was exiting from the scene of the incident.
When the defendant began running away, Officer Koziak order him to "stop" and to "get on the ground." The defendant continued to flee, climbing over two fences before he was caught by Officer Koziak.
After he caught the defendant and handcuffed him, Officer Koziak asked the defendant why he was running. When the defendant relayed that he was high and scared, Officer Koziak then asked him where the gun was. The defendant replied "what gun." A cursory search for the weapon was unsuccessful. The defendant was then transported back to the police station.
Later that morning officers returned to the location to search for the gun in the daylight. At about 6:30 a.m., Officer Koziak found the gun on the ground in the back of 11 Columbus Avenue.
At approximately 9:20 a.m., Detective Robert Bookstein was assigned to interview the defendant. The interview took place at Det. Bookstein's desk in the detective bureau. Prior to speaking with the defendant, Detective Bookstein read the defendant his Miranda rights from a pre-printed Miranda card. While administering the rights, Det. Bookstein gave further explanation of some, but not all of the rights. According to the detective, the defendant acknowledged understanding each right and initialed the card after each right was read. Following the reading of the rights, the defendant agreed to speak to the detectives and initialed the waivers.
Thereafter, an oral interview was conducted. Following the oral interview, Det. Bookstein reduced the substance of the oral statement to writing as he continued to review the statement by the defendant. After the written statement was produced by Det. Bookstein, the defendant was again advised of his Miranda warnings in same manner as he had been earlier. The statement was read verbatim to the defendant. At about 10:25 a.m., after he requested a single correction by the detectives, the defendant signed the written statement.
The initial burden rests upon the defendant to establish standing. People v. Carter, 86 NY2d 721 (1995); People v. Whitfield, 81 NY2d 904 (1993). The defendant must establish reasonable expectation of privacy in the area searched. This burden may be met through the evidence adduced by the People, including the defendant's statement. People v. Gonzalez, 68 NY2d 950 (1986). In the case of abandoned property, evidence that the defendant had possession of an item and relinquished it due to allegedly illegal police conduct, is generally sufficient to establish standing. See People v. Howard, 50 NY2d 583 (1980). However, in this case, none of the evidence presented expressly or implicitly established that the defendant discarded the weapon after his initial encounter with Officer Koziak. Therefore, the defendant has not met the burden of establishing standing based upon his statement, and the other evidence presented by the People.
Even assuming that standing had been established, the defendant's motion to suppress the gun would nevertheless be denied.
It is clear that the weapon was not recovered from a place in which the defendant had a reasonable expectation of privacy. However, in a case such as this, that does not end the inquiry. People v. Ramirez-Portoreal, 88 NY2d 99 (1996); People v. Howard, 50 NY2d 583 (1980). Abandoned evidence may still be suppressed if it is the product of illegal police conduct. Id. If an item is abandoned following illegal police conduct, such item will be suppressed if the abandonment is a spontaneous reaction to the illegality rather than the product of a calculated effort of the defendant to rid himself of the incriminating item. People v. Boodle, 47 NY2d 398 (1979).
Therefore, it must first be determined if any police illegality preceded the defendant's abandonment of the gun. In determining the legality of the police conduct during and after an encounter with a suspect, the Court must first ascertain if the police conduct was "justified in the inception." People v. Debour, 40 NY2d 210, 215 (1976).
Although the encounter later escalated, Officer Koziak, after observing the defendant exit the window ordered the defendant to "stop" and to "get on the ground." Normally, an Officer's command to "stop" without more, does not amount to a stop of a suspect. Rather, it is merely an appropriate police tool to be utilized during an exercise of the so-called common law right to inquire. People v. Bora, 83 NY2d 531 (1994). However, the officer's action in pursuing the defendant escalated the encounter to a stop requiring reasonable suspicion that the defendant had committed a crime. People v. Holmes, 81 NY2d 1056 (1992); People v. Martinez, 80 NY2d 444 (1992); People v. Leung, 68 NY2d 734 (1986).
It is clear that Officer Koziak had reasonable suspicion to stop and if necessary pursue the defendant. First, the officer had been relayed information from a known citizen informant that a man at the location possessed a handgun. When officer Koziak observed the defendant exiting the window, the defendant generally fit the description given to the officer. Undoubtedly, there were some discrepancies between the broadcast description and the defendant's actual appearance. However, given the defendant's temporal and spatial proximity to the crime, such discrepancies will not negate the reasonable suspicion. People v. Bruce, 295 AD2d 531 (2nd Dep't 2002); People v. Crossen, 269 AD2d 541 (2nd Dep't 2000); People v. Schollin, 255 AD2d 465 (2nd Dep't 1998).
Further, the defendant's furtive behavior in exiting the home through a window and running through the yard heightened the officer's level of suspicion. People v. Sierra, 83 NY2d 928 (1994); People v. Holmes, 81 NY2d 1056 (1992); People v. Martinez, 80 NY2d 444 (1992); People v. Woods, 281 AD2d 570 (2nd Dep't 2001); People v. Sloan, 178 AD2d 624 (2nd Dep't 1991).
As Officer Koziak possessed reasonable suspicion, he was justified in pursuing and detaining the defendant. People v. Sierra, 83 NY2d 928 (1994); People v. Holmes, 81 NY2d 1056 (1992); People v. Martinez, 80 NY2d 444 (1992); People v. Leung, 68 NY2d 734 (1986). Accordingly, even if the gun was discarded after the encounter with Officer Koziak, it was voluntarily abandoned by the defendant, and was not the product of illegal police conduct. Id. See also People v. Woods, 281 AD2d 570 (2nd Dep't 2001); People v. Rivers, 176 AD2d 902 (2nd Dep't 1991); People v. Sloan, 178 AD2d 624 (2nd Dep't 1991).
Even assuming arguendo that Officer Koziak was not justified in detaining the defendant, suppression of the gun would not be appropriate. The defendant's act of discarding the weapon was not a spontaneous reaction to sudden illegal police contact but rather "an independent act involving a calculated risk." People v. Ramirez-Portoreal, 88 NY2d 99 (1996); People v. Boodle, 47 NY2d 398, 404 (1979).
The precise timing of the defendant's ridding himself of the gun is unknown as Officer Koziak did not testify to having seen the defendant throw the gun. However, based upon the same statement that gave the defendant standing, it is clear that the defendant did not discard the gun after a sudden contact with Officer Koziak. According to the defendant's statement, he began his effort to elude the police as soon as he heard the knock on the door to the house. It was not until the defendant climbed out a window and began to flee that he discarded the gun. He may have even discarded the gun before he encountered Officer Koziak.
In this case, a short but significant period of time elapsed between the time the defendant heard the knock and began his flight until the defendant threw down the gun. During the time, the defendant gathered himself, made a difficult exit out a window and began to flee. As the defendant stated, he "threw the gun down so the police would not get [him] with the gun." Therefore, it must be concluded that in ridding himself of the gun, the defendant engaged in "an independent act involving a calculated risk" rather than "a spontaneous reaction to a sudden and unexpected confrontation." Id.; See also People v. Holmes, 81 NY2d 1056 (1993); People v. Kornegay, 183 AD2d 919 (2nd Dep't 1992); People v. Elliot, 162 AD2d 609 (2nd Dep't 1990); People v. Greaves, 123 AD2d 445 (2nd Dep't 1986).
Accordingly, the defendant's motion to suppress the gun is denied.
The first statement, made to Officer Koziak must be suppressed. At the time the statement was made, the defendant was clearly in custody. The officer's actions are likely to have induced an inculpatory response or have encouraged defendant to make an inculpatory statement. People v. Thrower, 175 AD2d 818 (2nd Dep't 1991).
However, the oral and written statements made to Det. Bookstein are admissible.
The defendant was adequately apprised of his Miranda rights prior to making the statements. See generally, People v. Hutchinson, 59 NY2d 923 (1983); People v. Burton, 191 AD2d 703 (2nd Dep't 1993). The defendant was advised of his rights both orally and in writing. The oral warnings, read from a departmental form, adequately conveyed the defendant's rights. People v. Vega, 225 AD2d 890 (3rd Dep't 1996); People v. Anderson, 146 AD2d 638 (2nd Dep't 1989); People v. Jordan, 110 AD2d 855 (2nd Dep't 1985). See also People v. Bugman, 254 AD2d 796 (4th Dep't 1998). According to Det. Bookstein, the defendant verbally indicated that he understood each right and waiver. The defendant acknowledged his understanding and waiver by initialing the form in multiple places.
The evidence further demonstrates that the defendant knowingly and voluntarily waived his rights. People v. Sirno, 76 NY2d 967 (1990); People v. Davis, 55 NY2d 731 (1981). The defendant orally acknowledged his desire to make a statement and signed the written forms acknowledging his desire to waive his rights and speak to the interviewers. Further, the fact that the defendant made a statement, after having been informed of his rights and admitting understanding the rights, is sufficient evidence that the defendant tacitly waived his rights. Id. There is no evidence in the record that the defendant either asked for an attorney or invoked his right to silence prior to or during any of the statements. Additionally, the statements, under the totality of the circumstances, was not involuntarily made. People v. Anderson, 42 NY2d 35 (1977); People v. Werner, 725 NYS2d 681 [ 284 AD2d 419] (2nd Dep't 2001); People v. Johnson, 269 AD2d 405 (2nd Dep't 2000).
The statement was not the product of an illegal arrest. The defendant's statements to Det. Bookstein are admissible as they were sufficiently attenuated from the alleged illegal arrest. See People v. Jones, 2 NY3d 235 (2004).
Undeniably, the mere passage of time alone will not serve to dissipate the taint of an illegal arrest. People v. Harris, 77 NY2d 434 (1991). Likewise, the mere reading of Miranda warnings will not purge the taint of an illegal arrest. People v. Gundersen, 255 AD2d 454 (2nd Dep't 1998). There must be an intervening event sufficient to separate the statement from the prior impropriety. Id.
Nevertheless, the passage of time is a factor to be considered in assessing attenuation. People v. Wilkinson, 5 AD3d 512 (2nd Dep't 2004); People v. Maharaj, 308 AD2d 551 (2nd Dep't 2003); People v. Doyle, 295 AD2d 446 (2nd Dep't 2002); People v. Jackson, 178 AD2d 438 (2nd Dep't 1991); People v. Williams, 141 AD2d 786 (2nd Dep't 1988). Here, approximately five hours passed from the time of the defendant's arrest until his statements to detectives.
Similarly, the advisement of Miranda warnings is a factor. Id. People v. Conyers, 68 NY2d 982 (1986). In the instant case, the defendant was Mirandized two times prior to making any statement.
Most importantly, there were significant intervening events that occurred after the arrest and before the interviews. See People v. Rogers, 52 NY2d 527 (1981) (defendant confronted with subsequently obtained evidence). See also People v. Wilkinson, 5 AD3d 512 (2nd Dep't 2004) (identification made by a witness); People v. Maharaj, 308 AD2d 551 (2nd Dep't 2003) (surveillance photos of crime shown to the defendant). In this case, the police recovered the gun from the scene and confronted the defendant with a photograph of it. The defendant was also removed from the scene of his arrest and transported to the police station where he was interviewed by a different police officer.
Further, when, as in the instant case, the basis of the illegal arrest is unrelated to the subject matter of the statement and the ultimate charges, the finding of attenuation is more likely. "Where, as here, a person who was arrested without probable cause on one charge is confronted with evidence relating to a different charge which is not the product of the illegal arrest and thereafter confesses to the second charge, the intervening event is sufficient to remove the taint of the illegal initial detention and render his confession admissible." People v. Marinelli, 238 AD2d 525, 526 (2nd Dep't 1997).
Based on the passage of time, the administration of Miranda warnings, the discovery of significant independent evidence and the difference between the arrest charges and the present charges, the Court finds that the defendant's subsequent statements are sufficiently attenuated from any taint of his arrest such that the statements are admissible. For the same reasons, the statements made to Det. Bookstein are attenuated from any taint of the on the scene statements. People v. Chase, 85 NY2d 493 (1995).
This Decision shall constitute the Order of the Court.