The People of the State of New York, v. Devere Richards, Defendant. (2025)

The defendant is charged with criminal possession of a weapon in the second degree, and other related charges. On July 23, 2025, and August 1, 2025, this Court conducted a combined Dunaway/Mapp/Huntley hearing. The People called Police Officer Christopher Atancuri as a witness. At the conclusion of the hearing, the Court heard oral arguments, and the parties submitted case law.

Based on the hearing evidence, and the applicable law, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

Officer Atancuri has been with the NYPD for five and a half years and is currently assigned to the 79th precinct. Officer Atancuri received training on how to identify weapons. Officer Atancuri testified that he was familiar with expandable batons, had encountered expandable batons in his career, and was familiar with how people typically carried expandable batons. Although Officer Atancuri had not made any arrests for expandable batons, he had conducted three to four weapons-related arrests. Officer Atancuri also received training in the identification of controlled substances, their common packaging methods, and had made five to eight drug-related arrests.

On October 8, 2024, at approximately 3:50 p.m., Officer Atancuri, and his partner, Officer Villa, were on patrol, in uniforms, in a police vehicle parked on Fulton Street and Nostrand Avenue, when Officer Atancuri observed the defendant from about 15 feet away, standing on the sidewalk with a baton in the front right side of his waist. It was daylight, the light conditions were clear, and nothing was obstructing the view of the sidewalk. The defendant was wearing a blue sweater, blue jeans, and had a fannypack across his chest. Officer Atancuri testified that Officer Villa first noticed the defendant carrying the baton and told Officer Atancuri where to look. Officer Atancuri looked and observed the defendant with the baton. Officer Atancuri described the baton as a "black rubber stick about four inches long," and later learned that the baton could expand by using force. Officer Atancuri testified that the officers exited the vehicle, and he approached the defendant on the right side, while Officer Villa stood to the left of the defendant.

The People introduced footage of Officer Atancuri's body-worn camera into evidence as People's Exhibit 1. The footage depicts the officers approaching the defendant and requesting identification. When the defendant asked why, Officer Atancuri explained to the defendant that he was carrying a baton, and that he was not allowed to carry one. The defendant responded, "Oh, I'm not?" Officer Atancuri testified that he knew what an expandable baton looked like, but did not know at that time whether the baton on the defendant's waist was expandable. Officer Atancuri also admitted that when he was checking the defendant's identification, he did not know whether the defendant's possession of the baton was an arrestable offense. Officer Atancuri testified that the baton was underneath the defendant's fannypack. The body-worn camera footage depicts Officer Villa touching the fannypack to move it out of the way, to look at the baton on the defendant's waist. The defendant stated that he did not believe that the officers would let him leave with the baton, and Officer Villa told the defendant to give him the baton. The body-worn camera footage depicts the defendant removing the baton from his waist and handing the baton to Officer Villa. The footage also depicts Officer Villa examining the baton. While Officer Atancuri checked the defendant's identification, Officer Villa asked the defendant whether he had anything else on him, except the baton. Officer Villa then asked Officer Atancuri whether he was going to issue a summons, and Officer Atancuri responded that he would call his supervisor. Officer Atancuri inquired whether the baton was expandable, and Officer Villa motioned his head to confirm that it was expandable. Officer Atancuri called his supervisor to ask whether he could issue a summons to the defendant. Officer Atancuri testified that his supervisor instructed him to make an arrest.

The officers informed the defendant that he was under arrest for having a baton. The officers also told the defendant that they could not issue a summons and asked the defendant to remove the fannypack. The defendant removed the fannypack, and the officers handcuffed the defendant. Officer Atancuri testified that the defendant did not reach inside the fannypack, and the defendant was cooperative. Officer Atancuri testified that he had no reason to think that there was a weapon in the fannypack. Officer Atancuri admitted that, at that time, he had not personally inspected the baton, and although he observed Officer Villa look at the baton, he did not see Officer Villa expand the baton. The body-worn camera footage depicts the defendant asking why he could not get a ticket. Officer Atancuri explained that he could not issue a summons because the baton was a dangerous weapon. The footage depicts the defendant asking the officers whether he could leave some of his personal property at the scene or have someone come take the property. The officers told the defendant that they would bring his personal property to the precinct. Officer Atancuri explained that he took the fannypack to the precinct to keep it safe because it was the defendant's personal property, and the officers could not leave the fannypack on the street. The defendant can be heard on the body-worn camera footage asking whether he could bring his jacket. After handcuffing the defendant, the officers searched the defendant, and placed the items recovered from the defendant's person in a plastic bag. After placing the defendant in the police vehicle, Officer Atancuri testified that he observed Officer Villa, for the first time, expanding the baton.

The defendant was transported to the 79th precinct. Officer Atancuri explained that during the arrest process, the defendant was searched. Officer Atancuri also conducted an inventory search and recovered property from the defendant's jacket and fannypack. Officer Atancuri recovered vials with white powdered substances from the defendant's jacket. Officer Atancuri recovered glassines with white powdered substances and a firearm along with personal items from the fannypack. Officer Atancuri explained that the NYPD conducts inventory searches to safeguard property. Officer Atancuri testified that he was trained on how to conduct inventory searches and pointed to the NYPD's Patrol Guide, Section 218-13. The People introduced a 2020 copy of the NYPD Patrol Guide, as People's Exhibit 2, which Officer Atancuri recognized as an accurate representation of the patrol guide section dealing with inventory searches. Officer Atancuri testified that the section was in effect when he conducted the inventory search on October 8, 2024, and that the section had not been altered or changed in subsequent years. The inventory search was captured by Officer Atancuri's body-worn camera, which was introduced into evidence as People's Exhibit 5. The footage depicts Officer Atancuri with a large plastic bag, and police paperwork in his hands, while removing the defendant's folding chair, jacket, and fannypack from the police vehicle. Officer Atancuri placed the items that were on the folding chair in the plastic bag. The footage also depicts Officer Atancuri removing the items from the fannypack and placing them in a plastic bag. The fannypack was filled with personal items, and Officer Atancuri emptied the contents of the fannypack for about 1 minute and 10 seconds (timestamped 2: 20-2:30), before indicating that he had recovered a firearm. Officer Atancuri testified that he generated a list, created a voucher number, and vouchered the defendant's personal items for safekeeping. A copy of the safekeeping voucher was introduced into evidence as People's Exhibit 4.

On October 9, 2024, the defendant was brought to an interview room. Officer Atancuri testified that he observed Detective Lamaida read the defendant Miranda warnings, and the defendant agreed to speak. Officer Atancuri testified that the defendant was given the opportunity to use the restroom, and that water and food were provided to the defendant. Officer Atancuri stated that the defendant was not handcuffed, and no threats were made to the defendant. A copy of the defendant's interview was memorialized on video, and introduced into evidence, as People's Exhibit 6. The People stipulated that the defendant was taken to the hospital sometime between his arrest on October 8, 2024, at 3:50 p.m. and when the defendant was read Miranda warnings on October 9, 2024, at 11:30 a.m.

CONCLUSIONS OF LAW

Probable Cause to Arrest

At a suppression hearing, the People bear the initial burden of going forward to establish the legality of police conduct in the first instance (see People v Berrios, 28 NY2d 361, 367 [1971]). If the People satisfy their initial burden, the defendant bears the ultimate burden of proving the illegality of police conduct (People v Malinsky, 15 NY2d 86, 91 [1965]). In People v DeBour, 40 NY2d 210, 222-223 (1976), the Court of Appeals established a graduated four-level test for evaluating police-initiated encounters. Level one permits the police to request information from an individual, "and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality" (see People v Moore, 6 NY3d 496, 498 [2006]). Level two, the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion to the extent necessary to gain explanatory information, but short of a forcible seizure (id.). The third level authorizes the police to forcibly stop and temporarily detain an individual, based upon a "reasonable suspicion" that the individual is involved in a misdemeanor or a felony (id. at 498-499). "A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he [or she] is in danger of physical injury by virtue of the detainee being armed" (DeBour, 40 NY2d at 223). A level four intrusion requires probable cause to believe that the person to be arrested has committed a crime (Moore, 6 NY3d at 499). In evaluating the police action, the court must consider "whether or not it was justified in its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible" (DeBour, 40 NY2d at 222).

The well-understood character of a "billy" encompasses an expandable baton (see People v Ocasio, 28 NY3d 178, 184 [2016]), the possession of which is a class A misdemeanor, under Penal Law § 265.01 (1). The evidence established that Officer Atancuri personably observed the defendant with a baton in the front right side of his waist, in plain view and in daylight, from about 15 feet away. Officer Atancuri received training on how to identify weapons and had made weapons-related arrests. Officer Atancuri explained that he had encountered expandable batons in his career, was familiar with how people typically carried expandable batons, and knew what an expandable baton looked like. Officer Atancuri's observations of the baton, which he believed to be an illegal weapon, gave rise to a founded suspicion that criminal activity was afoot, for the officers to approach the defendant, and request identification (see People v Hollman, 79 NY2d 181, 184-185 [1992]). Moreover, since the baton was in plain view, and appeared to be an illegal weapon, based on Officer Atancuri's training and knowledge of expandable batons, the officers were justified in requesting identification and inquiring about the baton (see People v Palm, 238 AD3d 787, 788 [2d Dept 2025]).

An officer may temporarily detain or frisk an individual if there is "reasonable suspicion" that the individual has committed a misdemeanor or felony, or if that individual is armed (see People v Moore, 6 NY3d at 498-499). "Reasonable suspicion" does not require "absolute certainty" that an individual is in possession of an illegal weapon (see People v Brannon, 16 NY3d 596, 602 [2011]). The issue is whether, under the circumstances, Officer Atancuri "possessed specific and articulable facts" from which he inferred that the defendant was carrying an expandable baton (id.). Here, once the officers approached the defendant, Officer Atancuri's belief, based on his training and experience, that the defendant possessed an expandable baton, even if the baton's illegal status could not be determined without testing it, constituted "reasonable suspicion" to believe that the defendant possessed a weapon, justifying a level three forcible intrusion under DeBour (see People v Neal, 79 AD3d 523, 523 [1st Dept 2013] [the officer, based upon his familiarity with gravity knives, had, at least, a "reasonable suspicion" to believe that the defendant possessed an illegal weapon]; People v Herrera, 76 AD3d 891, 894-895 [1st Dept 2010, aff'd, 16 NY3d 881 [2011] [the detective's belief, based on his training and extensive experience, that the shiny object he saw clipped to the defendant's pocket was a gravity knife or small-caliber handgun, even if not amounting to an absolute certainty, constituted "reasonable suspicion" of criminal activity]; People v Fernandez, 60 AD3d 549, 549 [1st Dept 2009] [the officer's belief that object in the defendant's pocket was a gravity knife, even if its illegal status could not be determined without testing it, constituted "reasonable suspicion" that the defendant possessed an illegal weapon"]; People v Carter, 49 AD3d 377 [1st Dept 2008] [the officer "saw what appeared, based on his experience, to be an illegal gravity knife clipped to the defendant's clothing]).

Although Officer Villa touched the fannypack and moved it out of the way to look at the baton on the defendant's waist, the body-worn camera footage does not depict Officer Villa physically manipulating the fannypack in such a way as to constitute a search. Officer Villa's intrusion was minimal, and the officers were engaged in a lawful encounter with the defendant. Given the "reasonable suspicion" that the defendant had an illegal weapon, Officer Villa acted properly in moving the fannypack, and asking the defendant to give him the baton (see People v Miranda, 19 NY3d 912, 914 [2012] [where a knife, even if not necessarily an illegal one becomes plainly visible to an officer during an authorized stop, the officer is permitted to seize it]; In re Gregory N.,108 AD3d 553, 554 [2d Dept 2013] [the officer was justified in seizing the knife protruding from the defendant's pants pocket]).

The subjective belief of an arresting officer is not controlling on the issue of whether probable cause exists for an arrest (see People v Cooper, 38 AD3d 678, 678 [2d Dept 2007]; People v Bandera, 204 AD2d 340, 341 [2d Dept 1994]). Moreover, an arresting officer acts with probable cause when that officer relies on a fellow officer, who possesses information sufficient to constitute probable cause to make the arrest (see People v Ketcham, 93 NY2d 416, 420 [1999]). The defendant gave the baton to Officer Villa, and the body-worn camera footage depicts Officer Villa examining the baton. Officer Atancuri asked Officer Villa whether the baton was expandable, and Officer Villa confirmed to Officer Atancuri that it was expandable. As such, despite Officer Atancuri's subjective belief that he could have issued a summons, probable cause existed to arrest the defendant for criminal possession of a weapon, in violation of Penal Law § 265.01 (1) (see People v Smith 125 AD3d 897, 898 [2d Dept 2015]; People v Talbert, 107 AD2d 842, 844 [3d Dept 1985]).

Recovery of Property

The police had probable cause to arrest the defendant, and as such the search of the defendant's person at the scene was justified as incident to a lawful arrest (see People v Inge, 90 AD3d 675, 676 [2d Dept 2011]; People v Blinker, 80 AD3d 619, 620-621[2d Dept 2011]).

The People also met their burden of establishing a valid inventory search of the defendant's jacket and the fannypack. An inventory search is designed to properly catalogue a defendant's property and serves to protect the police and others against claims of loss or theft, and dangerous instruments (see People v Johnson, 1 NY3d 252, 256 [2003]). Moreover, an inventory should be conducted pursuant to "an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably" (People v Galak 80 NY2d 715, 719 [1993]; see also People v Jeffrey, 18 AD3d 776 [2d Dept 2015]). Officer Atancuri explained the purpose of an inventory search and testified that he was trained on how to conduct inventory searches. Officer Atancuri identified a specific section of the NYPD Patrol Guide, which Officer Atancuri recognized as the written protocols on inventory searches. Although the People proffered the 2020 written protocols, this evidence established the existence of a departmental policy regarding inventory searches. The body-worn camera footage depicts the steps that Officer Atancuri took during the search and shows the contents that Officer Atancuri recovered from the fannypack. Officer Atancuri also created a safekeeping property voucher for the items that were recovered (see People v Padilla, 21 NY3d 268 [2013]; People v Walker, 20 NY3d 122 [2012]). The evidence does not suggest that the inventory search was a "ruse for a general rummaging in order to discover incriminating evidence" (Johnson, 1 NY3d at 256). Officer Atancuri admitted that he had no reason to think that there was a weapon in the fannypack. Indeed, Officer Atancuri emptied the contents of the fannypack for about 1 minute and 10 seconds, before he realized that it contained a firearm. There is no evidence to support the suggestion that the search was manufactured to look for a firearm.¹ Under these circumstances, the People established that the inventory search was valid and properly conducted (see People v Morales, 189 AD3d 1464 [2d Dept 2000]; People v Echevarria,173 AD3d 638 [1st Dept 2019]).

Statements

A defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights under Miranda v Arizona, 384 US 436 (1966). "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 NY2d 29, 33 [1976]). "When a seizure of a person remains at the stop and frisk inquiry level and does not constitute a restraint on his or her freedom of movement of the degree associated with a formal arrest, Miranda warnings need not be given prior to questioning" (People v Bennett, 70 NY2d 891, 893-94 (1987]). The defendant's statements at the outset of the officers' initial approach, did not require Miranda. Although the officers questioned the defendant about the baton, the questions were investigatory in nature, as the officers believed that the defendant possessed an illegal weapon (see People v Solano, 52 AD3d 848, 849 [2d Dept 2008]; People, Ward, 22 AD3d 368, 368 [1st Dept 2005]). At that time, the defendant was not handcuffed or restrained, the officers' firearms were not drawn, the defendant was not threatened or promised anything, and the questions occurred while the officers were investigating the defendant for carrying an illegal weapon. A such, the defendant was not, in custody for purposes of the need to give Miranda warnings (see People v Connors, 182 AD3d 607, 608 [2d Dept 2020]; People v Gonzalez, 179 AD2d 775, 776 [2d Dept 1992]).

The People have the burden of proving the voluntariness of any statements allegedly made beyond a reasonable doubt (see People v Jin Cheng Lin, 26 NY3d 701, 719 [2016]). "Volunteered statements are admissible provided the defendant spoke with genuine spontaneity and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed" (People v Maerling, 46 NY2d 289, 302-303 [1978]). Although the defendant made additional statements after he was placed under arrest, those statements were not the product of police interrogation (see People v Landy, 68 AD3d 520 [1st Dept 2002]). It was the defendant who inquired why he could not be issued a ticket for the baton, whether he could leave personal property at the scene, and whether he could bring his jacket to the precinct. The Court finds that those statements were voluntarily made.

There is no merit to the defendant's argument that the Miranda warnings were defective because Detective Lamadia informed the defendant that anything he said "may" be used against him, rather than "can and will" be used against him (see People v Lewis, 163 AD2d 328, 328 [2d Dept 1990]; People v Parker, 258 AD2d 479 [2d Dept 1999]). The exact wording of Miranda warnings is not required. "The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda" (California v Prysock, 453 US 355, 359 [1981]; see People v Dubar, 24 NY3d 946, 953 [2014]). Despite the minor deviation, a review of the Miranda warnings read to the defendant reveals that the defendant was sufficiently advised of his constitutional rights under Miranda. Moreover, although the defendant was taken to the hospital, between the time of his arrest on October 8, 2024, and when the interrogation took place on October 9, 2024, the defendant offered no evidence to support the claims that the defendant was medicated, exhausted, or confused. There was no evidence presented that any of the statements were made in violation of the defendant's rights or that they were coerced in any way. Rather, the evidence established that the defendant understood his Miranda rights and expressly waived them (see People v Butler, 172 AD2d 252, 253 [2d Dept 1991]; People v Rodriquez, 231 AD2d 650 [2d Dept 1996]). Consequently, the Court finds that the defendant's statements were knowingly, intelligently, and voluntarily made.

In sum, the Court finds that the approach, stop and arrest of the defendant was lawful, and the evidence was lawfully obtained. Therefore, the motion to suppress physical evidence and statements made by the defendant is DENIED.

The foregoing constitutes the Decision and Order of the Court.

Dated: September 12, 2025

Brooklyn, New York

Hon. Jane C Tully, AJSC

FOOTNOTES

1.   The defendant's prisoner movement slip introduced as Defense Exhibit A, indicates that the defendant was arrested on October 8, 2024, at 3:56 for criminal possession of a weapon, in the second degree, but also shows that the movement slip was printed on 10/9/2024 at 7:32, which was after the recovery the firearm during the inventory search.

Jane C. Tully, J.