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The People of the State of New York, v. John Cassaberry, Defendant.
The Court, on August 4, 2022, conducted a Dunaway/Mapp/Huntley hearing. Detective Manuel Sepulveda testified on behalf of the People. I find him to be a credible witness.
Detective Manuel Sepulveda testified that he has been employed by the New York City Police Department for approximately twenty-one years. He is currently assigned to the Intelligence Bureau in the 121 Precinct.
On May 13, 2022, he was working and in plain clothes. He was not wearing a bullet proof vest or a body worn camera because he was handling court matters that day. The court matter concerned a confidential informant so he did not wear his body camera. He acknowledged that while he was driving back to the precinct he received the instant phone call which is unrelated to the other matter.1 Specifically, at approximately 3:30 p.m., he was driving from the courthouse and in the vicinity of Forest Avenue and Union Avenue when he received a phone call, on his work cellphone, from a taxi dispatcher that there was a taxi vehicle with three occupants and the occupants may be planning to rob the driver or evade the fare. The Detective had a prior relationship with the caller. The car service dispatcher told him that he received the information via a phone call from the vehicle's driver and that the suspects were three black males. The Detective further testified that the dispatcher may have given clothing descriptions but he is not "one hundred" percent sure.
The Detective was also told the vehicle was a blue Honda located in the CVS parking lot. He arrived at the location and did not see a blue Honda but a blue Hyundai. There were only approximately five or six vehicles at the location. Therefore, he called back and asked for confirmation. In response, the dispatcher called the driver. At the same time, the Detective observed a female in a blue Hyundai answer a phone call in the parking lot. The car then drove away and the dispatcher called Detective Sepulveda and stated that the subject vehicle was a blue Hyundai. In response, Detective Sepulveda followed the vehicle and contacted the 121 Precinct for backup. At one point, a male exited the vehicle and the car continued driving. The Detective did not see the passengers lift up the back car seat.
When the police backup arrived, the Detective conducted a car stop.2 He approached the driver's side and observed the driver along with two rear passengers. The Defendant was in the rear seat on the driver's side. The Detective requested that the driver exit the vehicle and they spoke near the Detective's vehicle. The Detective also asked P.O. Ustick to come over because he intended to have the officer capture the interaction on body worn camera. Unbeknownst to the Detective, the Officer removed the camera and placed it on the hood of the car to record the car stop and the other officers. At some point, the Detective saw the camera on the vehicle but did not ask him to put it back on. Subsequently, towards the end of the conversation he asked the officer to wear the body worn camera and the officer complied.
The Detective asked the driver if she was the person who contacted the dispatcher about the fare evasion and possible robbery. She responded yes. He further asked if the passengers were attempting to rob her and she responded that they had not paid her but instead requested she take them to multiple locations. One person would exit and two people would stay in the car. She asked for money and they did not give it to her. She further stated that it was possible that they realized that they were being followed by the Detective because they paid her shortly before the car stop. The Detective asked if she would consent to a vehicle safety search and she responded in the affirmative.
While the Detective was speaking to the driver, other police officers, including Officers Ustick and his partner Iskaros stayed with the subject vehicle. The Defendant told an officer that he just picked up his diabetes medication and the CVS bag was with him in the car. The Detective subsequently reviewed the body worn camera and learned that an officer told the passengers that they were stopped because there may be an issue with the driver's license. The Detective does not know if the license was checked.
The Detective, along with the officers, approached the vehicle and asked the passengers to exit the vehicle. Detective Sepulveda lifted the rear driver's side seat and observed a firearm underneath the cushion in a small hollow space. He testified that the back seat on the driver's side was very loose and it was tighter on the passenger side. The Detective further testified that the Defendant was previously sitting on that cushion which was directly above where the gun was recovered. A CVS bag was on the floor in the back seat. The Detective acknowledged that the person who previously exited the vehicle was also sitting on that seat.
Detective Sepulveda told P.O. Ustick that both passengers would be charged unless someone says that the gun belongs to him. The passengers were arrested and transported to the precinct by the backup officers. At no point did the backup officers speak to the passengers. The Defendant was placed in the 121 Precinct holding cell with the other passenger. At one point, as the Detective was walking, the Defendant stopped talking to the other passenger and yelled out, "I told you, it's mine." The Detective did not ask any questions to the Defendant. The Detective testified that, prior to the uttered statement, the Defendant and the other passenger appeared to be arguing with one another and the Defendant told the passenger, in sum and substance, "I got you."
Subsequently, the Defendant was brought to the 121 Precinct Detective Squad interrogation room. Detective Sepulveda testified that he was there along with Detective Steen Furno. The latter detective gave Miranda warnings from a pre-printed form.
The Detective testified that the other passenger was released from custody.
A review of the Body Worn Camera Footage from Police Officer Ustick shows that he arrived at the scene and approached the subject vehicle at the same time as Detective Sepulveda. The driver was asked to leave the vehicle and she walked away with the Detective. Officer Ustick remained at the subject vehicle and spoke to the passengers who inquired about what is going on. A passenger mentioned "a cab" and Officer Ustick told them, in sum and substance, that if the car was not a real cab that is probably the issue. The passengers stated that they are coming from CVS and the Defendant held up his CVS shopping bag and said he picked up his diabetes medication.
The camera footage shows Detective Sepulveda walked back to the vehicle and asked for the passengers' names. The Defendant gave his name and said that he was picking up medication from CVS. The Detective asked Officer Ustick to come with him and they walked towards the driver. At that point, Officer Ustick placed his body worn camera on the Detective's vehicle hood and it remained there for approximately one minute. The camera's view is the subject vehicle and it showed one officer standing on the passenger side looking into the vehicle and one officer standing on the driver side looking into the vehicle. When the camera was again worn by the Officer, the Detective was speaking Spanish to the driver and then asked, in English, can I search your car. The driver responded, "yes, that's fine."
The Detective and Officer then removed the passengers. Officer Ustick looked around the passenger's side of the vehicle and the Detective looked around the driver's side. Both passengers were then handcuffed. They were brought to one of the police vehicles and the Detective told Officer Ustick to "look in the back seat of the car lift the seat." The Officer lifted the seat and said, "Oooh, okay. Got it." The body camera view does not, however, display what the officer saw. Subsequently, he spoke to Detective Sepulveda about logistics and the Detective said, "unless one of them fesses up."3
A review of the interrogation video shows that the Defendant entered the interview room along with the two detectives. Detective Furno asked the Defendant how he was feeling and read Miranda warnings. The Defendant was initially argumentative about the Detective reading Miranda warnings and being asked his name. The Defendant, however, continued to acknowledge the Miranda questions and agreed to speak. The Defendant at times, mumbled, but he acknowledged the firearm was his but did not say how long he possessed the gun. He stated that he did not know whether it was loaded but that he never shot the gun before. When Detective Selpuveda asked where the gun was recovered, the Defendant responded, "[y]ou was the one that found it under the seat bro I already said it was my gun." Additionally, the Defendant stated that he had the gun for "protection" and made additional statements before saying, "put me back in the cell, I don't want to talk anymore." The interview ended shortly thereafter. The officer then asked if the Defendant wanted water and the Defendant responded, "yeah" and took the cup of water that was next to him. The Defendant drank the water and left it on the table before asking about taking his medicine.
CONCLUSIONS OF LAW
The Defendant moves to suppress the gun recovered from underneath the rear seat on the basis that there was no probable cause to search the vehicle.4 The Defendant additionally moves to suppress the Defendant's statements on the basis that there was no probable cause to arrest the Defendant and the statement was also involuntary.
With respect to the gun's recovery, the Court must first determine if the subject vehicle's stop was proper. Although a defendant's arrest requires probable cause, the absence of probable cause at the outset is not dispositive because it is not a necessary predicate for all contact between police and the citizenry in the course of a criminal investigation. See, People v. Finlayson, 76 AD2d 670, 431 N.Y.S.2d 839 (2nd Dept., 1980). Moreover, common sense dictates that no two street encounters between law enforcement and civilian are going to be exactly alike. They present dynamic, fluid situations that can quickly change based on a multitude of factors and circumstances including reactions by the parties.
The New York State Court of Appeals in People v. DeBour, 40 NY2d 210, 386 N.Y.S.2d 375 (Ct. Appeals, 1976) outlined the different levels of permissible police intrusion into four different categories: 1) request for information; 2) common-law right of inquiry; 3) reasonable suspicion; and 4) probable cause. These four categories never were nor intended to be bright lines of demarcation in determining what level of police intrusion are reasonable under the circumstances. People v. Bora, 83 NY2d 531 (1994). As street-encounter cases evolved, the courts have adopted the "reasonableness" standard in determining the legality of police intrusion. People v. Howard 50 NY2d 583, 430 N.Y.S.2d 578 (Ct. Appeals, 1980); People v. Wheeler 2 NY3d 370, 779 N.Y.S.2d 164 (Ct. Appeals, 2004); and People v. Finlayson 76 AD2d 670, 431 N.Y.S.2d 839 (2nd Dept. 1980). With respect to car stops, the police must have reasonable suspicion that the occupants are or about to be engaged in criminal conduct. See, People v. Hicks, 68 NY2d 234, 508 N.Y.S.2d 163 (Ct. Appeals, 1986); People v. Sobotker, 43 NY2d 559, 402 N.Y.S.2d 993 (1978); People v. Ingle, 36 NY2d 413, 369 N.Y.S.2d 67 (Ct. Appeals, 1975
In the instant case, the evidence shows that the vehicle stop was proper because the Detective had reasonable suspicion that the passengers may be committing a crime. Specifically, Detective Sepulveda received a phone call from a taxi dispatcher who relayed a taxi driver's message that she was situated in a CVS parking lot and three black males may be attempting to either rob her or evade the fare. He ultimately learned that the vehicle was a blue Hyundai and he observed it leave the parking lot. The Detective followed and, ultimately, pulled the vehicle over. This stop was permissible as police may stop an automobile when they have a reasonable suspicion of criminal activity. See, People v. Coutin, 168 AD2d 269, 536 N.Y.S.2d 394 (1st Dept., 1990). For example, in Coutin, a car stop was justified as an identified citizen stated that she was robbed by individuals who entered a vehicle that drove down 28th Street. The First Department noted that more than mere suspicion existed, in part, because there were few moving vehicles in the vicinity. This matter is similar in that an identified citizen (the taxi driver) reported that she believes that she may be the subject of a crime (either robbery or fare evasion), the caller provided a location (CVS parking lot) and few vehicles where in the vicinity (five or six) amongst which hers was the only blue Hyundai. As such, the stop and seizure of the vehicle was legally permissible.
The Defendant claims that insufficient information was conveyed. As shown above, sufficient information was conveyed. The Court notes that, prior to instituting the car stop, the Detective confirmed the vehicle's description. Specifically, the Detective observed approximately five to six vehicles in the CVS parking lot. He did not observe a blue Honda but did observe a blue Hyundai. The Detective called the dispatcher to obtain confirmation and the dispatcher advised that he would call the vehicle's driver. The Detective then observed the blue Hyundai's driver answer a phone call and the dispatcher advised that the subject vehicle was, in fact, a blue Hyundai. This confirmation provides additional support that sufficient information was conveyed and that the stop was justified as, "the description of both the car and its occupants [the driver] was precise, and the ensuing stop was close, proximately, both in time and location." Coutin, 168 AD2d at 272.
To the extent that the identity of the taxi dispatcher is unknown, the Defendant has not provided any support for their position that the dispatcher's identity is required for probable cause. Moreover, the Court considers the taxi dispatcher as the functional equivalent of a 911 dispatcher who simply relayed information, in real time, from the taxi driver. To the extent that there may have been discrepancies (i.e. fare evasion or robbery/blue Honda or blue Hyundai), such was rectified during the conversation with the dispatcher and the dispatcher's identity has no significance or relevance for the suppression hearing except for possible prior inconsistent statement of the driver. Even so, the People did not call the dispatcher as a witness and civil witnesses are generally not subject to compulsory process in pre-trial hearings. See, People v. Chipp, 74 NY2d 327, 553 N.Y.S.2d 72 (Ct. Appeals, 1990) (the right of compulsory process is a trial right, enabling a defendant to present his own version of the facts to the trial jury).
The Court concurs with the Defendant's argument that the Defendant was seized at the time that the vehicle was stopped. See, People v. Harrison, 57 NY2d 470, 457 N.Y.S.2d 447 (Ct. Appeals, 1982). However, the Court does not agree with the Defendant's contention that the seizure ends the millisecond that the driver says that the fare was paid. This is a hyper technical argument that does not recognize the "reasonableness" standard utilized in street encounters.
First, as detailed above, the initial stop of the vehicle and the seizure of the occupants was legal. Therefore, it is axiomatic that the stop and seizure would continue until the Detective spoke to the driver and completed their investigation which included searching the vehicle upon obtaining consent. In light of the driver's statement that the passengers may have noticed the Detective shortly before the stop, the investigation could have encompassed checking on a possibly foiled robbery/fare evasion attempt. As such, the Defendant's argument is essentially that the continued seizure during the miniscule time frame between the Detective learning that the fare was paid and obtaining consent was impermissible. The Court notes that a review of the Body Worn Camera footage shows that the entire time frame between when the driver exits the vehicle and subsequently provides consent to search lasts approximately three minutes. Therefore, the time frame between the Detective learning that the fare was paid and consent provided was infinitesimal. The proper lens through which to view the interview and request for consent is to see the Detective's interaction with the driver as an ongoing conversation. This concept is supported by the absence of any break or intervening event during the conversation.
Second, the passengers' seizure was de minimis. As noted by the Court of Appeals, a vehicle stop, by its very nature, is a "limited seizure." See, Harrison, 57 NY2d at 476. A review of the footage also shows the nonchalant nature of the stop. The encounter is very casual as the passengers and officers exchange small talk. The police officers do not restrict the passengers' movement within the vehicle as the Defendant is obviously free to move his hands when he displays the CVS bag. The passengers are neither removed from the vehicle nor frisked. None of the officers touch their holsters or firearms and none of them tell the passengers that they are under investigation. To the contrary, the officers advise that the vehicle stop may concern a licensing issue with the driver.
With respect to the driver providing consent, the Court disputes the Defendant's claim that the Body Camera Footage does not capture the driver providing consent. While it is true that the body camera does not capture the entire conversation between the Detective and the driver, the camera depicts the Detective speaking in Spanish and then asking, "can I search your car" to which the driver responds, "yes." The driver does not hesitate to answer or appear confused or reluctant. As such, it is clear the driver legally provided consent to search her vehicle. See, People v. Abad, 279 AD2d 399, 720 N.Y.S.2d 61 (1st Dept., 2001); People v. Lane, 10 NY2d 347, 223 N.Y.S.2d 197 (Ct. Appeals, 1961) (search of automobile conducted with the consent of the owner is binding on the occupants).
The Defendant makes a variety of arguments which are without merit. First, the Defendant argues that, since the driver ultimately advised that the fare payment was made, the initial stop and seizure was illegal. This argument is a logical fallacy because the Defendant essentially claims that the Detective somehow should have known that the fare was paid shortly before the car stop and before he had a chance to speak to the driver. In other words, the Defendant claims that it was wrong for the Detective to conduct the stop (based on the initial communication from the driver) because the Detective investigated the initial communication from the driver.
Second, the Defendant claims that the Detective was not permitted to ask for the driver's consent to search the vehicle. The Defendant cites to a variety of cases but none of them are relevant as each concerns the legality of the police requesting permission to search from a defendant. None of the cited cases concern third party consent (e.g. a driver providing consent to search their own vehicle).
Third, the Defendant argues that the People have not met their burden to establish consent because the body worn camera did not capture the full conversation. This argument fails because the burden of proof in a motion to suppress physical evidence lies with the Defendant. People v Bouton, 50 NY2d 130, 428 N.Y.S.2d 218 (Ct. Appeals, 1980); People v Berrios, 28 NY2d 361, 321 N.Y.S.2d 884 (Ct. Appeals, 1971); People v DiStefano, 38 NY2d 640, 382 N.Y.S.2d 5 (Ct. Appeals, 1976). While the People must initially go forward to show that the evidence which they seek to introduce against defendant was acquired in a legal manner (People v Malinsky, 15 NY2d 86, 262 N.Y.S.2d 65 [Ct. Appeals, 1965]; People v Berrios, supra at 367), once such a showing is made, the ultimate burden shifts to the defendant. See, Berrios, supra. The Defendant has not met their burden. Moreover, as discussed above, consent was properly provided.
Based on the above, the stop and seizure of the vehicle and the passengers was legal. Additionally, the search and recovery of the firearm was legal.
The Defendant moves to suppress a cup the Defendant utilized to drink from during his interrogation in the precinct interview room. The Defendant's motion to suppress is denied on both procedural and substantive grounds.
First, the Defendant's motion is denied as it is untimely. The Defendant filed their Omnibus Motion on June 23, 2022. At that time, the Defendant requested a Dunaway/Huntley/Mapp hearing. Those hearings were granted. In the Defendant's Omnibus Motion, the Defendant refers to the police recovering the firearm and, based on their submission, the Mapp hearing was ordered. The Defendant's Omnibus Motion does not contain any reference to a cup.
The Defendant now, in their post-hearing submission, requests suppression of the cup. This request not only took place approximately three months after the Omnibus Motion was decided, it also took place after the Court received the above testimony (which would have encompassed testimony regarding the cup).
The Court can, on the merits, decide a dilatory motion if the defendant could not have, with due diligence, previously made the motion or provides good cause for the delay. See, CPL § 255.20(3). The Defendant, however, does not provide good cause or make any due diligence application.5 Therefore, to the extent that the Defendant is filing a dilatory motion, the Defendant's motion is denied as being untimely.
The Defendant seemingly recognizes that they cannot satisfy the burden of due diligence or good cause as their post-submission reply papers claim that the requested relief is based on language in the Omnibus Motion. Specifically, the Defendant claims that the recovery of the cup is encompassed in their request to suppress "any and all tangible, non-tangible and testimony fruits of the illegal seizure and search." This argument is without merit as their cited language does not provide the requisite sworn allegations of fact. See CPL § 710.60(1). Instead, the Defendant's motion papers provide only conclusory legal grounds for the relief sought. See, People v. Reynolds, 71 AD2d 1008; People v. Gomez, 67 NY2d 843; People v. Roberto H., 67 AD2d 549; People v. Taylor, 97A.D.2d 381; People v. Washington, 106 AD2d 593; People v. Stevens, 129 AD2d 749. Not only does the Defendant's cited language fail to provide sufficient factual grounds regarding the basis for suppression, it fails to even allege that the Defendant seeks to suppress the cup. As such, the Defendant's request, if based on the Omnibus Motion, is clearly insufficient. Moreover, the Court notes that when the Defendant attempted to cross-examine the Detective regarding the recovery of the cup, the Court sustained the People's objections. At no time did the Defendant argue that the Mapp hearing was to encompass the cup's recovery. Instead, they simply requested to continue the questions on the basis that the cup was part of the property recovered.
The first time the Defendant specifically moves for suppression of the cup is in their post-hearing submission. Even if the Court were to consider that submission, on its own merits as a motion requesting a Mapp hearing, such would be denied. Specifically, the Defendant's post-hearing submission simply claims that the Defendant was in police custody at the time the cup was given to him and that he did not voluntarily discard the item. As with the language proffered in the Defendant's Omnibus Motion, the Defendant provides insufficient facts pursuant to CPL § 710.60(1). For example, the Defendant does not claim that he asked to retain the cup or that he wished to have more water. Instead, the Defendant merely provides the conclusory language that he did not "voluntarily discard the item." A factual assertion is necessary, inter alia, as a defendant must establish standing by demonstrating a legitimate expectation of privacy. See, People v. Wesley, 73 NY2d 351, 540 N.Y.S.2d 757 (Ct. Appeals, 1989).
Standing is asserted by showing that the defendant "subjectively manifested an expectation of privacy with respect to the ... item searched that society recognizes to be objectively reasonable under the circumstances." People v. Sterling, 57 AD3d 1110, 1111, 869 N.Y.S.2d 288, 289-290 (3rd Dept., 2008) quoting People v. Burton, 6 NY3d 584, 588 (Ct. Appeals, 2006). The Defendant does not make any such showing but instead simply claims that "it was not left in a public location" and he did not "voluntarily discard the item." As detailed above, the Defendant does not proffer any explanation of how he did not voluntarily discard the item but instead claims that the police did not tell him that he could retain or dispose the cup. There is no requirement that the police give those admonishments and the Defendant does not provide any legal support for this position. Instead, the drinking cup became garbage once the Defendant finished drinking from the cup and there exists no expectation of privacy in trash once the owner has relinquished the property. See, People v. Ramirez- Portoreal, 88 NY2d 99, 643 N.Y.S.2d 502 (Ct. Appeals, 1996).
Based on the above, the Defendant's motion to suppress the cup is denied.
The Defendant moves to suppress the Defendant's statement on the basis that they were illegally obtained and there was no probable cause to arrest the Defendant. Based on the below decision, the Defendant's motion is denied.
The People have the burden of proof regarding statement suppression and the People must prove beyond a reasonable doubt the voluntariness of the statements. People v Huntley, 15 NY2d 72, 255 N.Y.S.2d 838 (Ct. Appeals, 1965); People v. Holland, 48 NY2d 861, 424 N.Y.S.2d 351 (Ct. Appeals, 1979). Although the People have the initial burden of proving that a defendant's statements were voluntary beyond a reasonable doubt, "the defendant bears the ultimate burden of proving that the statements were obtained in violation of his or her right to counsel or in some other illegal manner." See, People v. Brown, 46 AD3d 1128, 1129, 847 N.Y.S.2d 729, 731 (3rd Dept., 2007).
The Court first analyzes the Defendant's statements, as recounted on the body camera footage, from the vehicle stop. With respect to custody and obtaining statements, the applicable test is whether a reasonable person, innocent of any crime, would have thought he or she was in custody under the circumstances. See, People v Yukl, 25 NY2d 585, 307 N.Y.S.2d 857 (Ct. Appeals, 1969). In determining whether the Defendant was in custody, the court should consider: (1) the amount of time the defendant spent with the police, (2) whether his freedom of action was restricted in any significant manner, (3) the location and atmosphere in which the defendant was questioned, (4) the degree of cooperation exhibited by the defendant, (5) whether he was apprised of his constitutional rights, and (6) whether the questioning was investigatory or accusatory in nature. See, People v Arcese, 148 AD2d 460, 460-461, 538 N.Y.S.2d 614, 615 (2nd Dept., 1989).
In the instant case, the evidence shows that the Defendant, for interrogation purposes, was not in custody. As discussed above, the police officers interacted in a very nonchalant manner throughout the interaction. The encounter is very casual as the passengers and officers exchange small talk, the passengers' movement is not restricted, and they are neither removed from the vehicle nor frisked. The officers do not touch their holsters and, in fact, advise that the incident may concern a licensing issue with the driver. A reasonable person, innocent of any crime, would not have thought that he was in custody. As such, the Defendant's statements, as detailed in the body worn camera footage, are deemed voluntary.
The Court next must determine the voluntariness of the Defendant's statements while made in the precinct in the holding cell and the interview room. The Defendant was obviously in custody when he made the statements and when a person is taken into custody or significantly deprived of freedom, the Fifth Amendment requires that the police administer Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Although a person in custody must be administered Miranda warnings, there are various exceptions regarding statement admissibility when Miranda warnings are not provided. For example, when a defendant makes a spontaneous statement without having received Miranda warnings, the statement is admissible. The statement, however, must be genuine and not the product of inducement, provocation, or encouragement. People v. Stoesser, 53 NY.2d 648, 438 N.Y.S.2d 990 (Ct. Appeals, 1981); People v. Kern, 149 AD2d 187, 545 N.Y.S.2d 4 (2nd Dept., 1989).
With respect to spontaneous statements, the Court must determine whether "the defendant's statement can be said to have been triggered by police conduct which should reasonably have been anticipated to evoke a declaration from the defendant." People v. Lynes, 49 NY2d 286, 425 N.Y.S.2d 295 (Ct. Appeals, 1979). People v. Vasquez, 198 AD2d 460, 604 N.Y.S.2d 162 (2nd Dept., 1993) (Statement was not product of improper conduct when the police officer asked defendant what the matter was as he observed defendant in a holding cell sweating profusely with his head down and defendant responded that "I steal cars most of the time. I usually don't do burglaries. I had a bad night.") The evidence shows that the Detective did not engage in any conduct which should have reasonably been anticipated to evoke a declaration. Specifically, as the Detective walked past the holding cell which contained the Defendant and the other passenger, the Detective observed them arguing. The Defendant stopped talking to the other passenger and yelled out, "I told you, it's mine." The Detective testified that he did not ask any questions to the Defendant. As such, the People have met their burden that the statement was spontaneously uttered.
The Defendant argues that the substance of the statement ("I told you, it's mine") infers that there was some type of prior communication between the Defendant and a police officer. This claim is without merit as the Defendant's argument provides only conjecture without any supporting facts. For example, the Defendant may have decided to make such a statement because he was attempting to convince the other passenger that he previously, and continues, to accept responsibility. He also may have previously uttered a spontaneous statement to another officer but that statement was unheard. Regardless, the Defendant has not provided any evidence that the statement was uttered due to police conduct which should have reasonably been anticipated to evoke a declaration. See, Brown, 46 AD3d 1128 (3rd Dept., 2007) (the defendant bears the ultimate burden of proving that the statements were obtained in violation of some illegal manner).
The Defendant makes a variety of additional arguments with respect to the Defendant's statement. He claims that the Detective could have worn his body worn camera and recorded the interaction. First, there is no legal requirement that a Detective record footage when he is simply walking inside the precinct. Second, it is not practical for a Detective to continuously record in the off-chance that some type of admissible evidence may be unexpectedly captured.
The Defendant also argues that the Defendant may have heard the Detective's comment to Officer Ustick when he stated that both passengers would be charged unless someone says that they possessed the gun. A review of the body camera footage shows that neither the Defendant nor the other passengers were located in a position to overhear the low-volume statement between the Detective and Officer. Seemingly acknowledging such, the Defendant argues that the statement may have been reiterated to the Defendant by another police officer but claims that such cannot be known definitively because other witnesses were not called and the Detective did not use his body worn camera. First, the Detective testified why he did not possess his body worn camera (as he was coming from the courthouse after dealing with a confidential informant). Second, the People are not required to call all police personnel with whom the defendant was in contact. See, People v. Witherspoon, 66 NY2d 973, 498 N.Y.S.2d 789 (Ct. Appeals, 1985) (People are not mandated to produce all police officers who had contact with defendant from arrest to the time the statements were elicited); People v. Haverman, 119 Misc 2d 980, 983, 464 N.Y.S.2d 981 (Sup. Ct., Qns Cnty, 1983). As such, this argument is without merit. Additionally, if the Defendant heard that statement, he would be the best witness to affirm that fact but no such affirmation was submitted.
With respect to the statements made during the interview room interrogation, the Fifth Amendment requires that the police administer Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). The Defendant's waiver of Miranda warnings must be voluntary, knowing, and intelligent. People v. Aveni, 100 AD3d 228, 236, 953 N.Y.S.2d 55 (2nd Dept., 2012), People v. Rodney, 85 NY2d 289, 292, 624 N.Y.S.2d 95 (Ct. Appeals, 1995).
A review of the provided interview room recording shows that the Defendant waived his rights. The Detective read the Defendant's Miranda rights from a pre-printed form and the Defendant responded "yes" to each question. Although the Defendant mumbled at times, he was responsive and clearly understood each question. The Defendant argues that the statement was involuntary as the Detective improperly withheld the Defendant's access to medication. There is, however, no evidence that the Detective withheld medication. Specifically, the Defendant asks at the end of the interrogation, for the first time, that he needs to take his medicine. There is absolutely no basis to believe that he requested his medication any earlier or that the Detective coerced the Defendant's statement. The Defendant's allegation of coercion by withholding medication is completely meritless and without a scintilla of supporting evidence. The Court notes that the Defendant engages in the entire five minute interview and only asks for his medication at the end of the interview. It is unfathomable that, if the medication was being withheld, that the Defendant would not ask for it earlier and repeatedly, especially in light of the adversarial attitude the Defendant exhibited in the video. Moreover, the Defendant never complains of having any diabetes related medical issues during the interrogation and appears lucid and coherent.
Lastly, immediately prior to the hearing, the Defendant orally requested that the Court grant inspection of the subject vehicle pursuant to CPL § 245.30(3). The relevant statute grants a defendant the opportunity for additional discovery, in the Court's discretion, if the request is reasonable and the defendant is unable to obtain the substantial equivalent without undue hardship. The Court denied the Defendant's application. Specifically, the Defendant wanted to inspect the backseat's lifting function. The Defendant's request is being made approximately fourth months after the subject incident occurred and the vehicle was released to the owner. The Court therefore inquired whether the backseat will currently be in the same condition as when the incident occurred. The Defendant replied that he thinks that the condition may be changed by now. Based on such, the Court denied the Defendant's motion as it is not reasonable to inspect the car backseat when it is not likely to be in the same condition. Moreover, a review of the body camera footage, from the actual incident, shows how the backseat can be lifted.
Based on the above, the Defendant's motion to suppress is denied.
September 13, 2022
ALEXANDER JEONG, J.S.C.
1. The Detective testified that he notified his supervisor, Sergeant Kozinski, that he did not have a body worn camera.
2. The responding backup officers wore body worn cameras and two sets of video were entered into evidence.
3. Police Officer Iskaros Body Worn Camera footage was also placed into evidence. He was standing near the passengers when the Detective and Office Ustick spoke. A review of the footage shows that the statement of "unless one of them fesses up" is said in a low tone and it is highly unlikely that the statement could be heard from the location where the passengers and other officers are standing.
4. The Court notes that the Defendant also requests suppression of a drinking cup that the Defendant used during the interrogation. The Defendant did not move for the cup's suppression in the Omnibus Motion.
5. It is questionable whether a due diligence application is even colorable because the Defendant was provided the interrogation video (which depicts the Defendant obtaining and utilizing the water cup) during the People's initial discovery obligation.
Alexander Jeong, J.
Response sent, thank you
Docket No: Indictment No. 70428-22
Decided: September 13, 2022
Court: Supreme Court, Richmond County, New York.
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