People v Wallace

[*1] People v Wallace 2009 NY Slip Op 52224(U) [25 Misc 3d 1221(A)] Decided on October 30, 2009 Supreme Court, Nassau County St. George, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 6, 2009; it will not be published in the printed Official Reports.

Decided on October 30, 2009
Supreme Court, Nassau County

The People of the State of New York,

against

Christopher Wallace, Shereece Codner, and Jeff Desir, Defendant.



1011N-09

Norman St. George, J.

The defendants are each charged with the following: One (1) count of violating Penal Law §110/125.25(1), Attempted Murder in the Second Degree as a Class B Felony; Four (4) counts of violating Penal Law §120.10(1), Assault in the First Degree as a Class B Felony; Four (4) counts of violating Penal Law §120.05(1), Assault in the Second Degree as a Class D Felony; Four (4) counts of violating Penal Law §120.05(4), Assault in the Second Degree as a Class D Felony; Four (4) counts of violating Penal Law §120.00(2), Assault in Third Degree as a Class A Misdemeanor; One (1) count of violating Penal Law §120.25, Reckless Endangerment in the First Degree as a Class D Felony; One (1) count of violating Penal Law §265.03(1)(b), Criminal Possession of a Weapon in the Second Degree as a Class C Felony; One (1) count of violating Penal Law §265.03(3), Criminal Possession of a Weapon in the Second Degree as a Class C Felony; and One (1) count of violating Penal Law §265.09(1)(a), Criminal Use of a Firearm the First Degree as a Class B Felony.

On October 8, 2009, through October 14, 2009, upon stipulation by the parties, this Court conducted a Huntley, Mapp, and Dunaway hearing. (See People v Huntley, 15 NY2d 72 [1965]; Mapp v Ohio, 367 US 643, 81 SCt 1684, 6 LEd2d 1081 [1961]; and Dunaway v New York, 442 US 200, 99 SCt 2248, 60 LEd2d 824 [1979]). The Huntley hearing pertained to: a written statement and a videotaped statement allegedly made by defendant Wallace; two written statements allegedly made by defendant Desir, and two written statements allegedly made by defendant Codner.

The Mapp portion of the hearing was regarding a handgun allegedly recovered on the sidewalk at the intersection of 223rd Street and 104th Avenue in Queens County, New York; a glove allegedly recovered from the backseat of a Police vehicle; a sweatshirt allegedly recovered from defendant Wallace; gunshot residue swabs allegedly taken from all three defendants; and a buccal swab taken from defendant Wallace's mouth.

The People called five witnesses at the hearing: Police Officer Stephen Loschiavo, Police Officer John O'Moore, Police Officer Ira Tobias, Detective Russell Bastone, and Detective Gregg Arena, all of the Nassau County Police Department. The defendants did not call any witnesses. Based on the testimony of the Police Officers and Detectives, this Court makes the following [*2]findings of fact and conclusions of law:

FINDINGS OF FACT

Officer Loschiavo is a twenty-four year veteran of the Nassau County Police Department. Officer O'Moore is a twenty-two year veteran of the Nassau County Police Department. Officer Tobias is a fifteen year veteran of the Nassau County Police Department. Detective Bastone is a sixteen year veteran of the Nassau County Police Department, and Detective Arena is a fourteen year veteran of the Nassau County Police Department. This Court finds the testimony of the Police Officers and the Detectives to be credible.

Officer Loschiavo testified that on April 19, 2009, he and his partner, Officer Alonge, were dressed in plain clothes and were patrolling the Fifth Precinct of Nassau County in an unmarked Police car. Officer Loschiavo explained that both he and Officer Alonge were assigned to the Bureau of Special Operations, which is a tactical anti-crime unit of the Nassau County Police Department. At approximately 11:50 p.m., they were stopped at a Mobile gas station on Hempstead Turnpike near the Belmont Race Track, in Elmont, Nassau County, New York. Officer Loschiavo recalled that there had been some type of event at the Belmont Race Track that evening. Officer Loschiavo indicated that while seated in his vehicle at the gas station, his attention was drawn to a large group of people who were leaving the Mobil gas station and running across Hempstead Turnpike. He observed the large group of people stop at a bus stop which was directly across the street from the gas station. Officer Loschiavo noticed that a bus was making its way down Hempstead Turnpike to the bus stop. Officer Loschiavo testified that he then observed a blue Nissan Sentra traveling west on Hempstead Turnpike at a very slow rate of speed. The blue Nissan stopped at the bus stop just before the large group of people. Officer Loschiavo testified that he immediately heard a "pop", which he believed to be a gunshot. He testified that the sound came from the direction of the blue Nissan and he believed that the shot came from the vehicle. Officer Loschiavo watched all of the people standing at the bus stop scatter and run away from the car. Officer Loschiavo next heard what he believed to be five to six additional gunshots coming from the area of the blue Nissan. Officer Loschiavo observed the blue Nissan slowly pull away from the bus stop and head west on Hempstead Turnpike. Officer Loschiavo and his partner followed the car in their unmarked Police vehicle. Officer Loschiavo testified that when the blue Nissan made a left turn onto 225th Street, he activated his emergency lights to effectuate a car stop. Officer Loschiavo stated that the blue Nissan continued on and did not pull over in response to his emergency lights. Officer Loschiavo testified that he followed the vehicle and observed it slow down at the corner of 223rd Street and 104th Avenue. Officer Loschiavo testified that the car stopped briefly at that location, but then the vehicle took off again. Eventually, the vehicle pulled over at 223rd Street and 105th Avenue in Queens County, New York.

Officer Loschiavo indicated that other Police Officers immediately responded to the scene where the blue Nissan was stopped. Officer Loschiavo testified that he required each of the occupants of the vehicle to exit the vehicle with their hands raised and walk to his Police car. All [*3]of the occupants of the car complied with Officer Loschiavo's direction. Officer Loschiavo recalled that, at the scene, he and his partner had their guns drawn. Officer Loschiavo identified the driver of the vehicle as defendant Jeff Desir, the front passenger as defendant Christopher Wallace, and the rear passenger as defendant Shereece Codner. The two other individuals removed from the car were not parties to this hearing. The defendants were immediately patted down for weapons, handcuffed and made to sit at the scene. When defendant Wallace was patted down, Officer Loschiavo felt and removed a glove from his sweatshirt pocket. Officer Loschiavo testified that he returned the glove to the defendant's pocket because, at that time, he was only looking for weapons. According to Officer Loschiavo, no weapons were recovered from any of the defendants. Officer Loschiavo testified that he next searched the blue Nissan for weapons. Officer Loschiavo stated that no weapons were recovered from the vehicle. Officer Loschiavo testified that Officer O'Moore of the Nassau County Police Department Canine Unit responded to the scene to assist in the investigation. Officer O'Moore was directed to trace the route that the vehicle had traveled back to Hempstead Turnpike to search for weapons. Officer O'Moore testified that he backtracked the route of travel and recovered a black handgun at the corner of 223rd Street and 104th Avenue. Officer O'Moore testified that he found the handgun lying on the sidewalk in plain view. Officer O'Moore testified that he communicated this information to Officer Loschiavo. Officer Loschiavo testified that he was informed by Officer O'Moore that he had recovered a handgun a block away from where the blue Nissan was stopped.

In addition to the information received from Officer O'Moore, Officer Loschiavo testified that he received information from Police Officers at the scene that witnesses reported that the gunshots came from a dark colored car that was being pursued by an unmarked Police car. Officer Tobias testified that he responded to the scene of the alleged shooting at approximately 12 a.m. He was informed by other Police Officers present at the scene that witnesses had reported that a dark colored vehicle had been involved in the shooting. Officer Tobias relayed that information over the Police radio.

Officer Loschiavo testified that based on all of the accumulated information, the defendants were placed under arrest and transported to the Fifth Precinct. Officer Loschiavo transported defendant Wallace to the Precinct. Officer Loschiavo testified that after arriving at the Precinct the defendants were searched and their property was taken for safekeeping. Defendant Wallace was wearing a sweatshirt which was held as evidence. Officer Loschiavo indicated that he searched the rear of his unmarked Police car and recovered a glove hidden between the seat cushions in the backseat. Officer Loschiavo noted that the recovered glove was the same glove which he earlier found in and returned to defendant Wallace's sweatshirt pocket.

Detective Bastone testified that he was the lead detective on this case. Detective Bastone stated that he heard the notification regarding a shooting and immediately responded to the scene. Detective Bastone and his partner, Detective Arena, spoke with various Police Officers and witnesses at the scene. They received information that a dark colored car had pulled up to the bus stop and shot at people in the crowd. Detective Bastone next responded briefly to the scene 223rd Street and 105th Avenue, Queens County, New York, and assisted in transporting the defendants to [*4]the Fifth Precinct. Specifically, Detective Bastone transported defendant Codner to the Precinct.

At the Precinct, Detective Bastone first interviewed defendant Desir. Detective Bastone testified that he advised defendant Desir of his Miranda rights using a rights card (which was admitted into evidence as People's Exhibit 3). Detective Bastone testified that defendant Desir waived his right to remain silent and agreed to give a statement. Detective Bastone reduced defendant Desir's oral statement to writing. Detective Bastone testified that defendant Desir reviewed and signed the written statement. Defendant Desir's written statement was admitted into evidence as People's Exhibit 4. Detective Bastone testified that defendant Desir was asked to give a gunshot residue swab of his hands. Detective Bastone stated that defendant Desir agreed to give a gunshot residue swab of his hands and a swab of his hands was taken.

Detective Bastone next interviewed defendant Wallace. Detective Bastone testified that he advised defendant Wallace of his Miranda rights using a rights card (which was admitted into evidence as People's Exhibit 5). Detective Bastone testified that defendant Wallace waived his right to remain silent and agreed to give a statement. Detective Bastone reduced defendant Wallace's oral statement to writing. Detective Bastone testified that defendant Wallace reviewed and signed the written statement. Defendant Wallace's written statement was admitted into evidence as People's Exhibit 6. In addition to the written statement, on direct examination Detective Bastone stated that defendant Wallace admitted that he was going to "cap someone and that's what he wanted to do." Detective Bastone indicated that he had been informed by defendant Desir that defendant Wallace told defendant Desir that he was going to shoot somebody, that he wanted to "blick someone." Detective Bastone testified that he understood the words "blick" and "cap" to mean shoot. Detective Bastone added that when he asked defendant Wallace about the statement attributed to him by defendant Desir, defendant Wallace admitted that he had made that statement to defendant Desir. Detective Bastone admitted on cross-examination these statements were not contained in defendant Wallace's written statement. Detective Bastone testified that defendant Wallace was asked to give a gunshot residue swab of his hands and a swab of his mouth. Detective Bastone testified that defendant Wallace responded "yes" to both requests, and a swab of his hands and mouth were taken. Detective Arena testified that sometime thereafter, he asked defendant Wallace to accompany him to the District Attorney's Office to discuss the events that happened that evening with an Assistant District Attorney. Defendant Wallace agreed and was taken to the Nassau County District Attorney's Office. Detective Arena indicated that defendant Wallace gave a videotaped statement at the District Attorney's office. Defendant Wallace's videotaped statement was admitted into evidence as People's Exhibit 12.

Detective Bastone testified that after interviewing both defendant Desir and defendant Wallace, he detected inconsistencies between their statements. Detective Bastone testified that he re-interviewed defendant Desir to confront him with the inconsistencies. Detective Bastone admitted that he did not repeat the Miranda warnings to defendant Desir prior to the second interview. Detective Bastone told defendant Desir that he thought that defendant Desir had lied to him in his earlier statement. Detective Bastone further told defendant Desir to tell him the truth. Detective Bastone testified that defendant Desir gave a second statement which Detective Bastone reduced to [*5]writing. Detective Bastone indicated that defendant Desir reviewed and signed the second written statement. Defendant Desir's second statement was admitted into evidence as People's Exhibit 7.

Detective Arena testified that he was assigned to interview defendant Codner. Detective Arena testified that he advised defendant Codner of her Miranda rights using a rights card (which was admitted into evidence as People's Exhibit 9). Detective Arena testified that defendant Codner waived her right to remain silent and agreed to give a statement. Detective Arena reduced defendant Codner's oral statement to writing. Detective Arena testified that defendant Codner reviewed and signed the written statement. Defendant Codner's written statement was admitted into evidence as People's Exhibit 11. Detective Arena testified that he re-interviewed defendant Codner after learning of the information given by the other two defendants. Detective Arena recalled that the second interview of defendant Codner was six hours after his first interview of her. Detective Arena testified that he did not repeat the Miranda warnings to defendant Codner prior to conducting the second interview. Detective Arena stated that he reduced defendant Codner's second statement to writing. Detective Arena testified that defendant Codner reviewed and signed the second written statement. Defendant Codner's second statement was admitted into evidence as People's Exhibit 10. Detective Arena requested that defendant Codner give a gunshot residue swab of her hands. Detective Arena testified that defendant Codner agreed to give a gunshot residue swab of her hands and a swab of defendant Codner's hands was taken.

CONCLUSIONS OF LAW

Counsel for each of the co-defendants argues that there was no reason or basis for the stop of the vehicle that the defendants were in. Each counsel argues that since Officer Loschiavo could not affirmatively determine where the gunshots were being fired from, he did not have reasonable suspicion to stop the car. Further, defense counsels argue that the vehicle had not committed any Vehicle and Traffic Law violations which would have justified the car stop. Defense counsels argue that once the car was stopped, the defendants were immediately handcuffed and placed under arrest. They contend that this arrest was without probable cause since at that time no gun had been recovered, nor any information received from any witnesses. Regarding the alleged statements made by the defendants, counsel for defendant Desir argues that since Miranda warnings were not administered to his client between the first and second interviews, the second statement should be suppressed. In addition, counsel for Desir contends that Detective Bastone began his second interview of defendant Desir in a confrontational manner by inferring that his client was lying, and therefore, the second statement was involuntarily obtained. Counsel for Desir argues that the swab evidence should be suppressed because there was no written consent from his client to obtain same. Counsel for defendant Codner similarly argues that since Miranda warnings were not administered to his client between the first and second interview, and six hours lapsed between interviews, the second statement should be suppressed. Counsel for defendant Wallace argues that both statements of his client should be suppressed because of the protracted period of time that his client was in custody without being offered food, water or a bathroom break. Counsel for defendant Wallace requests that the oral statement allegedly made by his client to Detective Bastone, that he was going [*6]to "cap" or "blick" someone and "that's what he wanted to do," be precluded because no notice of the statement was previously given.

The People respond that Officer Loschiavo stopped the vehicle to investigate the gunshots at the bus stop. The People argue that although the defendants were immediately handcuffed upon being removed from the vehicle, they were not under arrest until the gun was recovered. The People contend that the seizure of the gun, sweatshirt, and glove were all permissible. The People submit that the statements given by each of the defendants were voluntarily given. Finally, the People point out that the defendants consented to the Police request for gunshot residue swabs of their hands, and additionally, defendant Wallace consented to a buccal swab of his mouth.

REASONABLE SUSPICION FOR THE STOP OF THE VEHICLE:

In order for Officer Loschiavo to have legally stopped the vehicle that the defendants were traveling in, he needed to have either observed a violation of the Vehicle and Traffic Law, or he needed to reasonably suspect that the defendants had been, were then, or were about to be engaged in criminal conduct. (See People v Spencer, 84 NY2d 749 [1995], cert denied 516 US 905, 116 SCt 271, 133 LEd2d 192 [1992]; People v Sobotker, 43 NY2d 559 [1978]; People v May, 81 NY2d 725 [1992]); People v Ingle, 36 NY2d 413 [1975]).

It would be absurd to conclude that a Police Officer who was sitting in a Police car directly across the street from a shooting, who hears and sees the shooting occur, does not have reasonable suspicion to not only stop the car that was at the scene of the shooting, but to detain every individual present at the shooting. Whether Officer Loschiavo was positive that the shots came from the car or not is of no moment. The totality of the circumstances correctly led Officer Loschiavo to suspect that the blue Nissan was involved in the shooting. Moreover, Officer Loschiavo specifically testified on cross-examination that he believed that the shots were fired from the vehicle based on where the gunshot sounds came from and based on the conduct of the bystanders who ran away from the car. This Court finds that Officer Loschiavo had a reasonable basis to believe that the shots were fired from the blue Nissan and therefore, he had reasonable suspicion to stop the car and conduct an investigation.

REMOVAL OF THE DEFENDANTS FROM THE VEHICLE:

In light of the fact that Officer Loschiavo directly witnessed the shooting, it was reasonable for him to conclude that if shots came from the vehicle then a gun would be present in the vehicle. Therefore, Officer Loschiavo was justified in removing each of the defendants from the car, frisking them for weapons, and searching the grab areas in the vehicle for weapons. Similarly, the manner in which the defendants were removed from the vehicle, i.e., having each defendant exit separately with their hands raised and walking to the Police Officer, who had his gun drawn, was also justified for Police Officer safety. (See People v. Robinson, 74 NY2d 773, 774-775 [1989] cert denied 493 US 966, 110 SCt 411, 107 LEd2d 376 [1989]; People v Douglas, 42 AD3d 756 [3rd Dept 2007] lv denied 9 NY3d 992 [2007]; People v Shackleford, 57 AD3d 578 [2nd Dept 2008], lv denied 12 NY3d [*7]762 [2009]; People v. Sutherland, 40 AD3d 890 [2nd Dept 2007]). It has been long held that the fact that the Police Officers had their guns drawn does not transform an investigative stop into a full blown custodial arrest. (See People v. Clark, 172 AD2d 679 [2nd Dept 1991]; People v. Mateo, 122 AD2d 229 [2nd Dept 1986]; People v. Pitt, 110 AD2d 723 [2nd Dept 1985]; People v. Allen, 73 NY2d 378 [1989]).

RECOVERY OF THE HANDGUN:

The testimony regarding the recovery of the handgun was uncontroverted. Officer O'Moore walked the route that the vehicle had traveled and recovered a black handgun lying in plain view on the sidewalk at the intersection of 223rd Street and 104th Avenue, Queens County, New York. Since the handgun was recovered on the street, none of the defendants have standing to contest the seizure of same. The black handgun was abandoned property and was properly recovered by Officer O'Moore. (See People v Brown, 182 AD2d 451 [1st Dept 1992], lv denied 80 NY2d 828 [1992]; People v Wesley, 73 NY2d 351 [1989] remand 154 AD2d 880 [4th Dept 1989] lv denied 75 NY2d 777 [1989]). Therefore, the defendants' motions to suppress the gun are denied.



PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANTS:

The testimony adduced at the hearing established that as soon as they exited the vehicle, all of the defendants were handcuffed and caused to sit at the scene of the car stop. It is clear that the defendants were not free to leave the scene. Although the defendants were not free to leave the scene, this Court finds that the defendants were not under arrest at that time, but were merely being detained during the investigation. During the investigation, Officer Loschiavo learned that a gun was recovered a block away from the location of the vehicle stop. In addition, Officer Loschiavo was informed that witnesses at the scene of the shooting saw the gunshots coming from a dark colored vehicle which was being pursued by an unmarked Police car. Those two pieces of information provided Officer Loschiavo with probable cause to arrest the defendants. Officer Loschiavo specifically testified that after receiving that information, he transported the defendants to the Fifth Precinct for arrest processing. Defense counsels point out that Officer Loschiavo did not know whether the gun recovered on the sidewalk by Officer O'Moore had anything to do with the shooting. To the contrary, the gun was recovered a block away from the car stop, on the route that the car had traveled, and at the precise location where Officer Loschiavo previously saw the car slow down and briefly stop. Hence, it was reasonable for Officer Loschiavo to believe that the gun recovered was the gun used in the shooting.

SEIZURE OF DEFENDANT WALLACE'S SWEATSHIRT:

During the arrest processing of defendant Wallace, his sweatshirt was retained as evidence. No testimony was adduced as to whether any testing was done on the sweatshirt. Presumably the sweatshirt was retained for gunshot residue testing. Nevertheless, the retention of defendant Wallace's sweatshirt after he was arrested was legally sufficient. The Police had probable cause to believe that the defendant's sweatshirt may contain evidence, namely, gunshot residue. (See People v Moss, 22 AD3d 329 [1st Dept 2005], lv denied 6 NY3d 836 [2006] reconsideration denied 7 NY3d [*8]759 [2006]; People v Jones, 298 AD2d 404 [2nd Dept 2002] lv denied 99 NY2d 560 [2002]). Therefore, the defendant's motion to suppress the sweatshirt is denied.

SEIZURE OF THE GLOVE:

The testimony regarding the recovery of the glove was similarly uncontroverted. Officer Loschiavo testified that, after transporting defendant Wallace to the Precinct, he checked the rear of the Police vehicle to make sure that the defendant had not left anything there. According to Officer Loschiavo, in between the rear seat cushions, he found a hidden glove. The glove was recovered in the vicinity of where defendant Wallace was sitting in the Police vehicle. In addition, the glove was the same glove that Officer Loschiavo had previously found in defendant Wallace's sweatshirt pocket during the pat down at the scene of the car stop. Since the glove was recovered from the rear of the Police car, none of the defendants have standing to contest the seizure of it. Further, items found in a Police vehicle are abandoned property and are therefore outside the scope of Constitutional protection. Hence, the glove was abandoned property and was properly recovered by Officer Loschiavo. (See People v Williams, 243 AD2d 761 [3rd Dept 1997]; People v Weeks, 153 AD2d 971 [3rd Dept 1989], lv denied 75 NY2d 777 [1989]). Therefore, the defendant's motion to suppress the glove is denied.

STATEMENTS BY THE DEFENDANTS:

Regarding defendant Wallace, he allegedly made one written statement to the Police and one videotaped statement at the District Attorney's Office. The People also introduced testimony by Detective Bastone of an oral statement which was not previously noticed by the People to defense counsel. This Court finds that the written and videotaped statements were made after the defendant was in custody under arrest. The defendant was being interrogated by the Police and at the District Attorney's Office when he made the statements, consequently, Miranda warnings were required. As to both the written and videotaped statements, the defendant was given his Miranda warnings, the defendant indicated that he understood his rights, and the defendant knowingly, intelligently and voluntarily waived his right to remain silent. Counsel for defendant Wallace argues that both statements made by his client should be suppressed because of the protracted period of time that his client was in custody without being offered food, water or a bathroom break. Although neither the Detectives nor the Police Officers could recall whether any of the defendants requested or received food, water or a bathroom break, each of the witnesses testified that if any of the forgoing was requested then it was provided. This Court holds that both the written and videotaped statements were voluntarily given by the defendant. Therefore, defendant Wallace's motion to suppress the written and videotaped statements is denied. As to the alleged oral statement by defendant Wallace, that he was going to "blick" or "cap" someone and "that's what he wanted to do," defendant's motion to preclude said oral statement is granted since the People failed to give the defendant timely notice of said statement.

Regarding defendant Codner, she allegedly made two separate written statements. This Court finds that both statements were made after the defendant was in custody under arrest. The defendant was being interrogated by the Police when she made both statements, consequently, Miranda [*9]warnings were required. As to the first written statement, the defendant was given her Miranda warnings, the defendant indicated that she understood her rights, and the defendant knowingly, intelligently and voluntarily waived her right to remain silent. Counsel for defendant Codner argues that his client was not read her Miranda warnings before the second interview, and, since six hours had elapsed between the interviews, she should have received her Miranda warnings again. There is nothing in the record that would have required defendant Codner to receive repeated Miranda warnings. It is well settled that where a person in Police custody has been given their Miranda warnings, and voluntarily and intelligently waives those rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous (see People v Glinsman, 107 AD2d 710 [2nd Dept 1985], lv denied 64 NY2d 889 [1985], cert denied 472 US 1021, 105 SCt 3487, 87 LEd2d 621 [1985]). Further, the fact that six hours elapsed between the time the defendant was last given her Miranda warnings and the time she gave the second statement to the Police does not render the interrogation inherently coercive. (See People v Chatman, 281 AD2d 964 [4th Dept 2001], lv denied 96 NY2d 899 [2001]; People v Stanton, 162 AD2d 987 [4th Dept 1990], appeal denied 76 NY2d 991 [1990]). This Court holds that both written statements were voluntarily given by the defendant. Therefore, defendant Codner's motion to suppress her two written statements is denied.

Regarding defendant Desir, he allegedly made two separate written statements. This Court finds that both statements were made after the defendant was in custody under arrest. The defendant was being interrogated by the Police when he made the statements, consequently, Miranda warnings were required. As to the first written statement, the defendant was given his Miranda warnings, the defendant indicated that he understood his rights, and the defendant knowingly, intelligently and voluntarily waived his right to remain silent. Counsel for defendant Desir argues that Miranda warnings were not administered to his client between the first interview and the second interview, therefore, the second statement should be suppressed. In addition, counsel for Desir contends that Detective Bastone started off the second interview in a confrontational manner by inferring that his client was lying, and therefore, the second statement was involuntarily obtained. As indicated above, there is no requirement that defendant Desir receive repeated Miranda warnings between interviews. Also, the Police may challenge and explore a defendant's story with him. This Court finds nothing in the record to indicate that the manner and content of Detective Bastone's second interview caused the second written statement by defendant Desir to be involuntarily obtained. This Court holds that both written statements were voluntarily given by the defendant. Therefore, defendant Desir's motion to suppress the two written statements is denied.



SWABS:

The testimony adduced at the hearing was that each defendant was asked to give swabs of their hands. In addition, defendant Wallace was asked to give a buccal swab of his mouth. Detective Bastone testified that both defendants Wallace and Desir agreed to give the requested swabs. Detective Arena testified that defendant Codner agreed to give a gunshot residue swab. Defense counsels' argument that the swabs should be suppressed because the Police failed to obtain written consent from the defendants is without legal basis or merit. Defense counsels fail to provide any [*10]authority for the proposition that written consent is a prerequisite to the Police taking said swabs. In general, consent need not be expressed in any particular form and may be found based on an individual's words, actions, or conduct. In the case at bar, this Court holds that the oral consent by the defendants to submit to both a gunshot residue swab and a buccal swab was legally sufficient. (See People v Cathwright, 61 AD3d 695 [2nd Dept 2009]). Therefore, the defendants' motions to suppress the swab samples are denied.

This constitutes the opinion, decision and order of the court.

Dated: October 30, 2009

ENTER:

____________________________________

Hon. Norman St. George

Acting Supreme Court Justice