People v Lewis

[*1] People v Lewis 2009 NY Slip Op 50312(U) [22 Misc 3d 1127(A)] Decided on February 27, 2009 Nassau Dist Ct Engel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 27, 2009
Nassau Dist Ct

The People of the State of New York,

against

Cory Lewis, Defendant.



2008NA006227



Hon. Kathleen Rice, Nassau County District Attorney

Attorneys for defendant: Massimo & Panetta, P.C.

Andrew M. Engel, J.

The Defendant is charged, under Docket Number 2008NA006227, with False Personation, in violation of Penal Law § 190.23, Driving While Impaired by Alcohol, Driving While Impaired by Drugs, Driving While Impaired by Combined Influence of Drugs or Alcohol and Drugs, in violation of VTL §§ 1192(1), 1192(4) and 1192(4)(a), respectively, and, under Docket Number 2008NA006228, with, Unlawful Possession of Marijuana, pursuant to Penal Law § 221.05. All of these charges arise out of the same incident of March 8, 2008.

The Defendant previously moved under both dockets, in a joint motion, for, inter alia, an order suppressing the results of a breath and/or urine test, suppressing any tangible evidence obtained from the Defendant, suppressing any statements made by the Defendant to a public servant, or, in the alternative, ordering that a Mapp/Dunaway/Huntley[FN1] hearing and a hearing pursuant to VTL § 1194 be held. That motion resulted in an order of Hon. Susan T. Kluewer dated November 26, 2008, granting the Defendant's motion to the extent of granting a hearing to determine if "any evidence should be suppressed as the product of an unlawful seizure or search, and if not, whether any of the Defendant's statements should be suppressed as the product of custodial interrogation with[out] benefit of Miranda[FN2] warnings ...." The hearing was held before this court (Engel, J.) on February 2, 2009.

At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. People v. Malinsky, 15 NY2d 86, 262 NYS2d 65 (1965); People v. Wise, 46 NY2d 321, 413 NYS2d 334 (1978); People v. Dodt, 61 NY2d 408, 474 NYS2d 441 (1984); People v. Moses, 32 AD3d 866, 823 NYS2d 409 (2nd Dept. 2006), lv. den. 7 NY3d 927, 827 NYS2d 696 (2006) Once [*2]the prosecution has met this burden, the defendant has the ultimate burden of establishing the illegality of the police conduct, by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361, 321 NYS2d 884 (1971); People v. Di Stefano, 38 NY2d 640, 382 NYS2d 5 (1976); People v. Lombardi, 18 AD2d 177, 239 NYS2d 161 (2nd Dept. 1963) Additionally, the People have the burden of proving the voluntariness of any statements allegedly made beyond a reasonable doubt. People v. Valeruis, 31 NY2d 51, 334 NYS2d 871 (1972); People v. Anderson, 42 NY2d 35, 396 NYS2d 625 (1977).

In an attempt to meet their burdens, the People relied upon the testimony of Police Officer Michael Barbuck and Police Officer Jose Rivera. The Defendant did not call any witnesses. After listening to Officers Barbuck and Rivera, and observing their demeanor, the court finds their testimony to be credible and makes the following findings of fact:

Officer Michael Barbuck is a twenty-one (21) year veteran of the Nassau County Police Department; he additionally has four and one-half (4½) years experience as a New York City Police Officer. His training includes the performance of Standardized Field Sobriety Tests ("SFSTs") and Portable Breath Tests ("PBTs"). In his career Officer Barbuck has made in excess of one thousand (1,000) drunk driving arrests. Officer Rivera has been a member of the Nassau County Police Department for fourteen (14) years. Prior thereto he was a member of the New York City Police Department for three (3) years.

On March 8, 2008, at approximately 3:50 a.m. Officer Barbuck was in uniform and on duty, alone in a radio motor patrol unit, on the eastbound shoulder of Front Street, approximately one thousand (1,000') feet west of Uniondale Avenue, in Uniondale, County of Nassau, State of New York. Front Street, in that vicinity, is an east-west roadway, with one (1) lane in each direction separated by double yellow lines. While in this area Officer Barbuck observed a 1999 Saab heading in an eastbound direction traveling in the westbound lane. Officer Barbuck then observed that vehicle serve over the double yellow line three (3) times, moving at least three (3') feet into the westbound lane of traffic. Officer Barbuck followed this vehicle, which made a left turn onto Valcour Avenue, almost striking a parked car, and continued northbound through two (2) stop signs without stopping. Officer Barbuck, who was approximately one hundred (100') to (200') feet behind this vehicle, activated his roof lights and pulled the vehicle over to the right side of Valcour Avenue near Braxton Street. The vehicle pulled over almost immediately after the officer activated his roof lights.

Officer Barbuck exited his patrol car and approached the Saab's driver's side on foot. His weapon was not drawn. At this time he asked the drive, who he identified as the Defendant, to roll down his window and to produce his license, registration and insurance card. In response, the Defendant stated, in sum and substance, that he did not have his license, that the vehicle belonged to his girlfriend, that she lets him borrow the vehicle because his is too expensive to put his vehicle on the road, that he had one (1) beer and one (1) shot earlier, and that he drove straight from Massachusetts that morning.[FN3] The Defendant then woke up his female passenger who obtained the vehicle's registration from the glove compartment. Officer Barbuck then asked the Defendant to identify himself; and, the Defendant advised him that his name was Michael [*3]Shaughnessy, and that his date of birth was November 11, 1998. The officer then ran this information in his portable computer and was unable to verify the name. Officer Barbuck then advised the Defendant that it would be a crime to give a false name or date of birth. During this entire conversation Officer Barbuck observed the Defendant to be confused, to have pinkish glassy eyes, slurred speech, eye lid tremors, "cotton mouth," and a moderate odor of alcohol.

The Defendant was then asked to exit the vehicle and step to its rear. The Defendant did so, having to balance himself on the vehicle with his left arm. Intending to conduct SFSTs, Officer Barbuck asked the Defendant if he had any physical impairments which would prevent him from taking such tests, to which the Defendant answered in the negative. Officer Barbuck then performed a Horizontal Gaze Nystagmus ("HGN") test, a one (1) legged stand test and administered a PBT. In performing the HGN Officer Barbuck observed three (3) positive clues in each eye, which, to him, indicated intoxication by alcohol or impairment by drugs. During the one (1) legged stand test the Defendant swayed and was unsteady on his feet, put his foot down five (5) times, skipped one (1) number and stopped counting at twenty (20) instead of counting to thirty (30). To Officer Barbuck this too was indicia of intoxication by alcohol or impairment by drugs. The PBT administered by Officer Barbuck at the scene resulted in a reading of .097% of breath alcohol, which is a further indication of intoxication.

Given the totality of circumstances, including the Defendant's physical condition, his performance on the SFSTs administered, the PBT results and the manner in which he drove, Officer Barbuck placed the Defendant under arrest. The Defendant was then handcuffed and placed in the rear of Officer Barbuck's patrol car.

At about this time Officer Rivera, who had received a call from Officer Barbuck, arrived on the scene. Officer Barbuck instructed Officer Rivera to conduct an inventory search of the vehicle, to impound the vehicle, to remove the passenger from the vehicle and to secure her a ride. Officer Rivera then approached the passenger, obtained her identification and had her exit the vehicle. He then proceeded to conduct what he and Officer Barbuck called an inventory search.

In conducting his search, Officer Barbuck knelt onto the driver's seat with his torso leaning into the vehicle and directed his flashlight onto the vehicle's floorboards and center console. In so doing he observed two (2) plastic bags of what he believed to be marijuana inside the center console. He could not recall if these bags had been covered before his observation of them. Officer Rivera also found a glass bong or drug paraphernalia in a back seat pocket. After recovering these items Officer Rivera terminated his search.

After Officer Rivera completed his search Officer Barbuck conducted a second search of the vehicle. As a result of this search Officer Barbuck recovered a small glass pipe with burnt leafy residue from a pocket behind the driver's seat and two (2) bottles of vodka, one (1) which was half full and the other unopened, from the rear of the vehicle. Officer Barbuck then took these items to his patrol vehicle and placed them on the dashboard to get a manila envelope in which to place them. At this point the Defendant stated, "I smoked some a little while ago. I brought that from home."[FN4]

The officers then arranged for a taxi to pick up the passenger of the stopped vehicle, [*4]summoned vehicle impound and transported the Defendant to police headquarters. On the way to headquarters the Defendant, upon being asked by Officer Rivera, repeated that his name was Mike Shaughnessy. At headquarters the Defendant was searched and any items recovered from his person were documented. The Defendant was then asked to sign this document, which he did by signing the name "Cory Lewis." Officer Rivera could read enough of this signature to see that it was not "Michael Shaughnessy," the name previously provided by the Defendant. When asked why he signed a different name the Defendant replied, "Oh, I thought that you wanted me to sign a different name."[FN5]

REASONABLE SUSPICION AND PROBABLE CAUSE

"A police officer is authorized to stop a motor vehicle on a public highway when the officer observes or reasonably suspects a violation of the Vehicle and Traffic Law (citations omitted)." People v. Schroeder, 229 AD2d 917, 645 NYS2d 217 (4th Dept.1996) See also: Liebel v. Jackson, 261 AD2d 474, 690 NYS2d 94 (2nd Dept.1999); People v. Riggio, 202 AD2d 609, 609 NYS2d 257 (2nd Dept. 1994) Officer Barbuck's observation of the Defendant operating his vehicle eastbound on Front Street, crossing the double yellow line at least three (3) feet into the westbound lane of traffic on three (3) occasions, nearly striking a parked vehicle while making a left turn and failing to stop at two (2) stop signs provided Officer Barbuck with a sufficient basis for stopping the vehicle the Defendant was driving.

Following this lawful stop, the manner in which the Defendant was operating this vehicle, his admission that he recently drank alcohol, his slurred speech, pinkish glassy eyes, unsteadiness on his feet, eye lid tremors,"cotton mouth," the odor of alcohol, his performance on two (2) SFSTs and the PBT results provided Officer Barbuck with probable cause to believe that the Defendant had been driving while intoxicated. See: People v. Ball, 141 AD2d 743, 529 NYS2d 840 (2nd Dept.1988); People v. Troche, 162 AD2d 483, 556 NYS2d 403 (2nd Dept.1990); People v. Schmitt, 262 AD2d 588, 692 NYS2d 656 (2nd Dept.1999)

BREATH AND/OR URINE TESTS

Having found reasonable cause for the stop and probable cause for the Defendant's arrest, and the Defendant having raised no other ground for the suppression of the breath and/or urine tests herein, that branch of the Defendant's motion which seeks suppression of those tests is denied.

THE FIRST STATEMENT ATTRIBUTED TO THE DEFENDANT

The Defendant's first statement: "I don't have my wallet with me. Listen officer, I just rolled through the stop signs, like 25 mph. I wasn't that fast. I just drove here from Massachusetts today. This is my girlfriend's car. She lets me use her car because mine is too expensive to put on the road. I picked up my girlfriend and we went to a house near Hofstra. I had a beer and one shot like an hour ago[,]" was voluntarily made in response to reasonable inquiry following a lawful stop of the Defendant's vehicle. See: Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984); People v. Mathis,136 AD2d 746, 523 NYS2d 915 (1988); People v. McGreal, 190 AD2d 869, 593 NYS2d 868 (2nd Dept. 1993); People v. Brown, 104 AD2d 696, 480 NYS2d 578 (3rd Dept. 1984); People v. Fiorello, 104 AD2d 708, 529 NYS2d 27 (2nd Dept. 1988)

Accordingly, the Defendant's application to suppress this statement attributed to him is denied.

[*5]INVENTORY SEARCH

The People seek to justify the search of the vehicle the Defendant was driving, and the seizure of two (2) bottles of vodka, two (2) bags of marijuana, drug pipes or paraphernalia and marijuana residue, as a valid inventory search. The People bear the initial burden of coming forward with evidence of the existence of such a procedure and that the search was conducted in accordance therewith. See: People v. Gomez, 50 AD3d 407, 859 NYS2d 621 (1st Dept. 2008); People v. Elpenord, 24 AD3d 465, 806 NYS2d 675 (2nd Dept. 2005) The People herein have failed to meet their burden.

Although the People's failure to place in evidence written inventory procedure guidelines of the Nassau County Police Department is not, by itself, fatal to the People's position, See: People v. Gomez, supra ., Officer Barbuck's and Officer Rivera's testimony fail to establish the existence of any such procedure. Officer Barbuch did not know if the department maintains written guidelines for the conducting of inventory searches. When asked to describe the department's inventory guidelines Officer Barbuck responded, "We conduct a search of all the interior compartments to the car accessible to us to secure any valuable property therein." (P 20 L 19)[FN6] The officer further stated that "[i]n [his] precinct it is standard procedure for every car to be impounded." (P56 L1) He also testified that "There is no such thing as an inventory sheet." Officer Rivera was equally candid, acknowledging that "the only guidelines that we are given are that the vehicle is impounded upon the arrest of a defendant to safeguard the vehicle." (P70 L9) Officer Rivera further stated, "It's called an inventory search, but what is actually done is a quick documentation of inside the vehicle during the car stop. Most of the time it is a dark visibility, so it is an inventory search, but the items written down on the impound sheet would be - - it is not - - everything found in the car is not written down." (P62 L 22) Such testimony fails to state "any standardized procedure for inventory searches promulgated by the [Nassau County] Police Department[.]" People v. Gomez, supra . at 409, 859 NYS2d 621,623 (2nd Dept. 2008)

The above notwithstanding, even if the existence of a standard procedure for inventory searches was established by the officers' testimony, the procedure described and followed by Officers Rivera and Burback do not meet the criteria established by the Court of Appeals in People v. Galak, 80 NY2d 715, 719, 594 NYS2d 689, 692 (1993) for determining the constitutional reasonableness of such searches: "First, the procedure must be rationally designed to meet the objectives that justify the search in the first place (citation omitted.) Second, the procedure must limit the discretion of the officer in the field (citation omitted)."

It is well established that the "specific objectives of an inventory search, particularly in the context of a vehicle, are to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments (citations omitted)." People v. Johnson, 1 NY3d 252, 256, 771 NYS2d 64, 66 (2003); See also: People v. Galak, supra . It is axiomatic that "[t]he policy or practice governing inventory searches should be designed to produce an inventory." Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632 (1990) Indeed, "the hallmark of an inventory search [is] a meaningful inventory list." People v. Johnson, supra . at 256, 771 NYS2d 64, 67 (2003); See also: People v. Cochran, 22 AD3d 677, 804 NYS2d 346 (2nd Dept. 2005) [*6]

In the matter sub judice, Officer Barbuck testified that, while items which are not contraband were found in the vehicle he does not list those items, stating, "The only thing I put down in writing is contraband." (P 57 L 7) He also acknowledged that after he spoke to Officer Rivera, following Officer Rivera's search of the vehicle, there was no basis for him to conduct a further search (P 54 L 3 - 11). Officer Rivera similarly testified that after he recovered what he believed to be two (2) bags of marijuana and a glass bong or drug paraphernalia he terminated his search. Officer Rivera further testified that personal items of value were to be documented and that it was up to him to determine what was of value. While Officer Rivera testified that there were other personal items in the vehicle, which he could not specifically recall, the People did not produce any impound or inventory sheet listing such items.

As recently noted in People v. Gomez, supra . at 410, 859 NYS2d 621, 624 (1st Dept. 2008):

if vouchers for items held as evidence were deemed to constitute, collectively, an inventory list of the contents of the vehicle from which those items were recovered, the requirement that an inventory search produce an inventory list would be eviscerated, since the police create vouchers, as a matter of course, for items being retained for use as evidence. Moreover, to the extent the police document only those contents of a vehicle that have potential evidentiary value (as appears to have been the case here), it tends to show that the purpose of the search of the vehicle was "a general rummaging in order to discover incriminating evidence" ( Johnson, 1 NY3d at 256, 771 NYS2d 64, 803 NE2d 385, quoting Florida v. Wells, 495 U.S. at 4, 110 S.Ct. 1632), which is not an appropriate aim of an inventory search.

Similarly the "[a]rbitrary decision-making about what to seize, ..., creates unacceptable risks of unreasonableness in an inventory search policy." People v. Galak, supra . at 721, 594 NYS2d 689, 693 (1993)

Given the unfettered discretion of the officers in the field concerning what to seize and inventory, the failure of the People to proffer evidence of a proper inventory list and the absence of any proof that anything other than evidence was seized and vouchered, "manifestly, the procedure was so unrelated to the underlying justification for inventory searches that [the court has] no difficulty finding it to be arbitrary and irrational, and the search it generated unreasonable." People v. Galak, supra . at 720, 594 NYS2d 689, 693 (1993)

Accordingly, the Defendant's application to suppress the two (2) bottles of vodka and the small glass pipe with burnt leafy residue recovered by Officer Barbuck, as well as the two (2) bags of the substance believed to be marijuana and the glass bong or paraphernalia recovered by Officer Rivera is granted; and, these items are suppressed.

THE SECOND STATEMENT ATTRIBUTED TO THE DEFENDANT

The Defendant's second statement: "Yeah, I smoked some just before we left. That's mine. I brought it here from home[,]" was made in response to Officer Barbuck's displaying the items he found while searching the vehicle on his patrol car dashboard. The court having found that the seizure of these items was improper, and "the People [having] failed to establish any attenuation of the taint of the illegal [search] and the defendant's subsequent statement[] (citation omitted) the defendant's statement[] [is] properly suppressed. (citations omitted)." People v. Reynolds, 199 AD2d 430, 431, 608 NYS2d 86 (2nd Dept. 1993) See also: Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963); People v. Johnson, 66 NY2d 398, 497 NYS2d 618 (1985); People v. Turriago, 219 [*7]AD2d 383, 644 NYS2d 178 (1st Dept.1996); Compare: People v. Figueroa, 6 AD3d 720, 776 NYS2d 574 (2nd Dept. 2004) wherein the court held that even if inventory search was improper, upon its commencement the officer smelled marijuana which then independently provided probable cause to believed the vehicle contained drugs.

Accordingly, the Defendant's application to suppress this statement is granted.

THE THIRD STATEMENT ATTRIBUTED TO THE DEFENDANT

The Defendant's third statement: "Oh, I thought you wanted me to sign someone else's name[,]" was made in response to Officer Rivera's inquiry as to why the Defendant signed a name other than the one he provided to the officers at the scene of his arrest and on the way to police headquarters. There being no dispute that the Defendant was in custody at the time this statement was made, the Defendant argues that this statement was in response to interrogation conducted prior to his being advised of his Miranda rights. There being no dispute that the Defendant had not been advised of his Miranda rights prior to the question which elicited this response, the People argue that Officer Rivera's question was not part of a custodial interrogation, but part of a lawful inquiry to ascertain the Defendant's pedigree information.

It is now well ingrained in our criminal jurisprudence that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, supra . at 444, 86 S. Ct. 1602, 1612 (1966) Before the safeguards enunciated in Miranda, id. will apply, however, it must be demonstrated that the statement in question was the product of a custodial interrogation, "mean[ing] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, id. at 444, 86 S. Ct. 1602, 1612 (1966); See also: Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682 (1980); People v. Huffman, 41 NY2d 29, 390 NYS2d 843 (1976); People v. Johnson, 64 AD2d 907, 408 NYS2d 519 (2nd Dept.1978), aff'd 48 NY2d 674, 421 NYS2d 881 (1979)

Routine booking questions constitute "custodial interrogation." See: Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638 (1990); People v. Rodney, 85 NY2d 289, 624 NYS2d 95 (1995) Such questions, however, are provided with an "exception which exempts from Miranda's coverage questions pertaining to biographical data necessary to complete booking or pretrial services.'" Pennsylvania v. Muniz, supra . at 601, 110 S. Ct. 2638, 2650 quoting United States v. Horton, 873 F.2d 180,181, n.2 (CA8 1989); See also: People v. Rodriquez, 39 NY2d 976, 387 NYS2d 110 (1976); People v. Padron, 118 AD2d 599, 499 NYS2d 202 (2nd Dept.1986) cert. den. 472 U.S. 1007, 105 S. Ct. 2700 (1985) The same can be said for "clarifying questions" unrelated to the charge for which a defendant has been arrested. See: People v. Huffman, supra .; People v. Washington, 299 AD2d 286, 750 NYS2d 76 (1st Dept. 2002) lv. den.100 NY2d 543, 763 NYS2d 9 (2003) As a result of this exception, responses to proper pedigree questions are "not subject to suppression because [they were] obtained before the defendant was advised of his Miranda rights (see, People v. Rodney, 85 NY2d 289, 624 NYS2d 95, 648 NE2d 471; People v. Burks, 227 AD2d 905, 643 NYS2d 796; People v. Morene, 221 AD2d 376, 633 NYS2d 202)." People v. Acevedo, 258 AD2d 140, 143, 695 NYS2d 572, 574 (2nd Dept.1999)

This exception, however, is not unlimited. Before the exception will apply, the pedigree questions asked must be limited to those necessary for processing or a defendant's physical needs. [*8]See: People v. Antonio, 86 AD2d 614, 446 NYS2d 96 (2nd Dept.1982); People v. Hester, 161 AD2d 665, 556 NYS2d 97 (2nd Dept.1990) As noted an " exception to the exception'" People v. Singh, 12 Misc 3d 952, 816 NYS2d 669 (Dist.Ct. Nassau Co. 2006) exists where the pedigree information sought, "though facially appropriate, [is] likely to elicit incriminating admissions because of the circumstances of the particular case (citations omitted)." People v. Rodney, supra . at 293; 624 NYS2d 95, 97 (1995); See also: People v. Sims, 150 AD2d 402, 540 NYS2d 834 (2nd Dept.1989); People v. Antonio, supra .; People v. Hernandez, 6 Misc 3d 572, 790 NYS2d 356 (Dist.Ct. Nassau Co.2004)

In this regard, the Court of Appeals has noted a difference between "questions posed as part of the investigation of a crime, as distinguished from noninvestigative inquiries." See: People v. Rodney, supra . at 292; 624 NYS2d 95, 97 (1995) The test is not "the subjective intent of the police, but ... whether an objective observer with the same knowledge concerning the suspect as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response." People v. Ferro, 63 NY2d 316, 319, 482 N.Y.S..2d 237, 238 (1984), cert. den. 472 U.S. 1007, 105 S. Ct. 2700 (1984); See also: Rhode Island v. Innis, supra .; People v. Lynes, 49 NY2d 286, 425 NYS2d 295 (1980); People v. Broadus, 149 AD2d 602, 540 NYS2d 280 (2nd Dept.1989)

The case of People v. Willis, 16 Misc 3d 1121, 847 NYS2d 904 (S.C. Kings Co. 2007) is virtually identical to the matter before this court. Therein, the defendant was charged, inter alia, with Criminal Possession of a Weapon in the Second Degree. The issue there presented was "whether the question Why did you give us a different name?' comes under the pedigree exception to Miranda warnings or is the functional equivalent of interrogation." In concluding that Miranda warnings were not necessary the court found that the police officer was simply seeking clarifying information and that the inquiry did not seek "to elicit information bearing directly on an essential element of the crime charged (citations omitted)." People v. Willis, id. at 1121, 847 NYS2d 904 (S.C. Kings Co. 2007) It is this latter factor which distinguishes Willis, id. from the matter sub judice and requires a different result.

The Defendant herein is charged with False Personation, in violation of Penal Law § 190.23. A successful prosecution on this charge will require the People to demonstrate the following elements: (1) warnings given to the Defendant of the consequences of his acts; (2) the knowing misrepresentation of his name, date of birth or address; and, (3) intent to prevent the police from ascertaining such information. See: In the Matter of Travis S., 180 Misc 2d 234, 685 NYS2d 886 (Fam. Ct. Kings Co. 1999); aff'd 271 AD2d 611, 706 NYS2d 162 (2nd Dept. 2000); aff'd 96 NY2d 818, 728 NYS2d 411 (2001)

The testimony adduced at the hearing was to the effect that the Defendant originally provided Officer Barbuck with the name of Michael Shaughnessy and a date of birth of November 11, 1998. After that information could not be confirmed on the officer's portable computer the Defendant was advised that it would be a crime if he provided a false name and date of birth. Officer Rivera further testified that while traveling from the scene of the initial stop to police headquarters he again asked the Defendant his name and was provided with the name Mike Shaughnessy. Thereafter, when signing a property voucher, the Defendant signed a different name.

At this point, as detailed hereinabove, a further request for the Defendant to state his name would have been an appropriate "single clarifying question" People v. Willis, supra . at 1121, 847 NYS2d 904 (S.C. Kings Co. 2007) seeking to elicit pedigree information necessary for routine [*9]booking, unrelated to the charge, excepted from Miranda. See: People v. Rivera, 26 NY2d 304, 310 NYS2d 287 (1970); People v. Washington, supra .; People v. Velazquez, 33 AD3d 352, 822 NYS2d 65 (1st Dept. 2006) lv. den. 7 NY3d 929, 827 NYS2d 698 (2006); People v. McCloud, 50 AD3d 379, 855 NYS2d 113 (1st Dept. 2008) lv. den. 11 NY3d 738, 864 NYS2d 397 (2008) The same cannot be said for Officer Rivera's attempt to solicit the reason the Defendant provided a different name than the one previously provided.

The reason the Defendant signed a different name is irrelevant for routine booking purposes. Given the fact that the police already suspected that the Defendant had provided a false name and/or date of birth and that they anticipated charging him with False Personation, as evinced by Officer Barbuck advising the Defendant of the import and criminal ramifications of providing false information, this inquiry by Officer Rivera clearly constituted "after-the-fact investigation at the stationhouse[,]" People v. Huffman, supra . at 34, 390 NYS2d 843, 847 (1976); See also: People v. Johnson, supra ., which an objective observer could reasonably conclude would likely elicit an incriminating response; i.e. that a false name was given to prevent the police from learning his true name. Unlike People v. Willis, supra . this inquiry is directly related to the charge, specifically the third element thereof. See: People v. Antonio, supra .; People v. Hernandez, supra .

Accordingly, the Defendant's application to suppress this statement is granted.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

February 27, 2009

___________________________

ANDREW M. ENGEL

J.D.C. Footnotes

Footnote 1: Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961); Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979); People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965)

Footnote 2: Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)

Footnote 3: This is the first statement attributed to the Defendant in the People's CPL § 710.30 notice.

Footnote 4: This is the second statement attributed to the Defendant in the People's CPL § 710.30 notice.

Footnote 5: This is the third statement attributed to the Defendant in the People's CPL § 710.30 notice.

Footnote 6: Pagination refers to hearing transcript February 2, 2009.