People v Fowler

[*1] People v Fowler 2012 NY Slip Op 50642(U) Decided on April 9, 2012 Supreme Court, Nassau County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2012
Supreme Court, Nassau County

The People of the State of New York

against

Reggie Fowler, SAMUEL CEPHAS, JAVON GAMBLE AND LEROY NELSON, Defendants.



1967N-2012



District Attorney

Nassau County

Mineola, New York

By: Martin Meaney, Esq.

Assistant District Attorney

Attorney for defendant Fowler:

William Rost, Esq.

200 Old Country Road

Mineola, New York 11501

Jericho, New York 11753

Attorney for defendant Cephas:

Rha & Kim, LLP

Megan Rha, Esq.

215-45 Northern Blvd., Suite 200

Bayside, New York 11361

Attorney for defendant Gamble:

Elbert & Elbert, LLP

Michael D. Elbert, Esq.

221 Mineola Boulevard

Mineola, New York 11501

Attorney for defendant Nelson:

Law Offices of Steven R. Barnwell

Steven R. Barnwell, Esq.

131 Mineola Boulevard, Suite 205 Mineola, New York 11501

Norman St. George, J.

Defendant Reggie Fowler is charged with three counts of violating Penal Law §160.15(4), Robbery in the First Degree as a class B felony; three counts of violating Penal Law §160.15(2), Robbery in the First Degree as a class B felony; three counts of violating Penal Law §160.10(1), Robbery in the Second Degree as a class C felony; one count of violating Penal Law §265.03(1)(b), Criminal Possession of a Weapon in the Second Degree as a class C felony; one count of violating Penal Law §265.03(3), Criminal Possession of a Weapon in the Second Degree as a class C felony; one count of violating Penal Law §155.40(1), Grand Larceny in the Second Degree as a class C felony; one count of violating Penal Law §145.10, Criminal Mischief in the Second Degree as a class D felony and one count of violating Penal Law §140.35, Possession of Burglar's Tool as a class A misdemeanor.

Defendant Samuel Cephas is charged with three counts of violating Penal Law §160.15(4), Robbery in the First Degree as a class B felony; three counts of violating Penal Law §160.15(2), Robbery in the First Degree as a class B felony; three counts of violating Penal Law §160.10(1), Robbery in the Second Degree as a class C felony; one count of violating Penal Law §265.03(1)(b), Criminal Possession of a Weapon in the Second Degree as a class C felony; one count of violating Penal Law §265.03(3), Criminal Possession of a Weapon in the Second Degree as a class C felony; one count of violating Penal Law §155.40(1), Grand Larceny in the Second Degree as a class C felony; one count of violating Penal Law §145.10, Criminal Mischief in the Second Degree as a class D felony; one count of violating Penal Law §140.35, Possession of Burglar's Tool as a class A misdemeanor; one count of violating Penal Law §120.20, Reckless Endangerment in the Second Degree as a class A misdemeanor; one count of violating Penal Law §270.25, Unlawful Fleeing a Police Officer in a Motor Vehicle in the Third Degree as a class A misdemeanor and one count of violating Vehicle and Traffic Law §1212, Reckless Driving as a misdemeanor.

Defendant Javon Gamble is charged with three counts of violating Penal Law §160.15(4), Robbery in the First Degree as a class B felony; three counts of violating Penal Law §160.15(2), Robbery in the First Degree as a class B felony; three counts of violating Penal Law §160.10(1), Robbery in the Second Degree as a class C felony; one count of violating Penal Law §265.03(1)(b), Criminal Possession of a Weapon in the Second Degree as a class C felony; one count of violating Penal Law §265.03(3), Criminal Possession of a Weapon in the Second Degree as a class C felony; one count of violating Penal Law §155.40(1), Grand Larceny in the Second Degree as a class C felony; one count of violating Penal Law §145.10, Criminal Mischief in the Second Degree as a class D felony and one count of violating Penal Law §140.35, Possession of Burglar's Tool as a class A misdemeanor.

Defendant Leroy Nelson is charged with three counts of violating Penal Law §160.15(4), Robbery in the First Degree as a class B felony; three counts of violating Penal Law §160.15(2), Robbery in the First Degree as a class B felony; three counts of violating Penal Law §160.10(1), Robbery in the Second Degree as a class C felony; one count of violating Penal Law §265.03(1)(b), Criminal Possession of a Weapon in the Second Degree as a class C felony; one count of violating Penal Law §265.03(3), Criminal Possession of a Weapon in the Second Degree as a class C felony; one count of violating Penal Law §155.40(1), Grand Larceny in the Second Degree as a class C felony; one count of violating Penal Law §145.10, Criminal Mischief in the Second Degree as a class D felony and one count of violating Penal Law [*2]§140.35, Possession of Burglar's Tool as a class A misdemeanor.

On March 1, 5, 6, 8, and 12, 2012, after motion practice by the attorneys, 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 People v. Dunaway, 442 US 200, 99 SCt 2248, 60 LEd2d 824 [1979]). The Huntley hearing pertained to various oral and written statements allegedly made by defendants Reggie Fowler, Samuel Cephas, and Javon Gamble. The Mapp hearing pertained to items allegedly seized from defendants Javon Gamble and Leroy Nelson. The Dunaway hearing pertained to probable cause for the arrest of the defendants Reggie Fowler and Javon Gamble.

The People called eight (8) witnesses at the hearing: Police Officer Konstantinos Anastasis, a ten (10) year veteran of the Nassau County Police Department; Police Officer John Cancel, a fourteen (14) year veteran of the Lake Success Police Department; Police Officer Thomas Alter, a four and a half (4 ½) year veteran of the Lake Success Police Department; Police Officer David Carratu, a twenty-eight (28) year veteran of the Nassau County Police Department; Detective Jeffrey Gross, a twenty-six (26) year veteran of the Nassau County Police Department; Detective Stephen Graziose, a twenty-one and a half (21 ½) year veteran of the Nassau County Police Department; Detective Gary Schmitt, a fourteen (14) year veteran of the Nassau County Police Department; and Detective Sergeant John Fitzgerald, a twenty-five (25) year veteran of the Nassau County Police Department. The defendants did not call any witness at the hearing. Based on the testimony of the witnesses, this Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

This Court finds the testimony of Police Officer Konstantinos Anastasis, Police Officer John Cancel, Police Officer Thomas Alter, Police Officer David Carratu, Detective Jeffrey Gross, Detective Stephen Graziose, Detective Gary Schmitt, and Detective Sergeant John Fitzgerald, to be credible.

Officer Anastasis testified that on October 14, 2011, he was working a 7 am to 7 pm tour of duty for the Nassau County Police Department. He was in uniform, working alone, in a marked Nassau County Police vehicle. At approximately 1:52 pm, Officer Anastasis was on Northern Boulevard in Manhasset, Nassau County, taking an accident report. Officer Anastasis testified that, while taking the accident report, he received a radio assignment for a robbery at the London Jewelers store in Manhasset. The radio assignment indicated that the suspects were male blacks, that they were armed with multiple handguns, and that they fled in a black Cadillac Escalade (hereinafter referred to as the "Escalade"). Officer Anastasis indicated that he left his location in search of the Escalade. Eventually, he saw an Escalade traveling west on Northern Boulevard, with two male black occupants in the front seat. Officer Anastasis testified that he attempted to pull the Escalade over using his Police lights, however, the vehicle failed to pull over, and continued on Northern Boulevard. Officer Anastasis put out a notification of his [*3]location using his Police radio and continued pursuing the Escalade. Officer Anastasis testified that, at one point, the Escalade traveled west in the eastbound lane of Northern Boulevard. At the intersection of Community Drive and Northern Boulevard, the Escalade crashed into another marked Police vehicle and then drove off. Officer Anastasis indicated that other Police vehicles joined in the chase of the Escalade. Officer Anastasis stated that the chase reached speeds up to one hundred (100) miles per hour. Officer Anastasis pursued the Escalade onto the Long Island Expressway Service Road and then onto the Long Island Expressway. Officer Anastasis testified that, as the traffic on the Long Island Expressway slowed down, he observed four (4) to five (5) male black individuals jump out of the Escalade while it was still moving, run across the traffic lanes of the Long Island Expressway, jump over the center barrier, and exit the Long Island Expressway. Officer Anastasis testified that he drove off the Long Island Expressway and attempted to intercept the suspects on the service road.

Officer Cancel testified that on October 14, 2011, he was working a 7 am to 7 pm tour of duty for the Lake Success Police Department. He was in uniform, working alone, in a marked Lake Success Police vehicle. Sometime prior to 2 pm, Officer Cancel heard the notification regarding the robbery at the London Jewelers store in Manhasset. He testified that he immediately headed to the London Jewelers store. While en route, Officer Cancel heard that a chase involving the suspect vehicle was headed towards the Long Island Expressway. Officer Cancel headed towards the Long Island Expressway and received a radio call to shut down the Long Island Expressway. Officer Cancel entered the Long Island Expressway and stopped westbound traffic using his lights and siren. Officer Cancel testified that he observed a black Cadillac Escalade headed towards him on the Long Island Expressway. Officer Cancel observed the Escalade slow down and saw four (4) male blacks exit the vehicle while it was still moving. Officer Cancel testified that one suspect was dressed all in black, one was dressed in blue and white, one was wearing a dark shirt, and one was wearing a white tank top. Officer Cancel watched the suspects jump over the concrete center median of the Long Island Expressway, run across the eastbound lanes of the Long Island Expressway, and onto the service road. Officer Cancel indicated that two (2) of the suspects headed west and two (2) of the suspects headed east. Officer Cancel chased the men on foot and saw the suspect dressed in all black and the suspect dressed in blue and white jump over a fence and enter the Lake Success Golf Course. He also noted that the suspect in all black was carrying a duffle bag. When Officer Cancel arrived at the service road, he was picked up by Officer Alter in a marked Lake Success Police car, and they drove into the Lake Success Golf Course. Officer Cancel testified that once they entered the golf course, he observed a male black, dressed in blue and white, walking towards them. Officer Cancel testified that he recognized the individual dressed in blue and white as one of the individuals that jumped out of the moving Escalade on the Long Island Expressway, and who he had chased onto the golf course. The individual told Officer Cancel that he was "on the job." Officer Alter immediately arrested the individual. Officer Cancel identified that individual, in Court, as defendant Javon Gamble. Officer Cancel continued to search the golf course. Officer Cancel testified that a golfer approached him and told him that a man dressed all in black, with a duffle bag, had stolen his golf cart. The golfer indicated the direction that the person headed and told Officer Cancel that the man went over a fence. Officer Cancel proceeded to the location and observed a male black dressed all in black coming back over a fence and onto the golf course. On cross-examination, Officer Cancel testified that as the [*4]individual came over the fence he observed the individual drop a glove. Officer Cancel testified that the individual was the same person that he observed jump out of the moving Escalade on the Long Island Expressway, and who he chased onto the golf course. Officer Cancel arrested the individual. Officer Cancel identified that individual, in Court, as defendant Leroy Nelson. Upon defendant Nelson's arrest, he was searched and a cellular phone was recovered. Officer Cancel testified that defendant Nelson's hand was bleeding when he was arrested.

Officer Alter testified that on October 14, 2011, he was working a 7 am to 7 pm tour of duty for the Lake Success Police Department. He was in uniform, working with Sergeant Fernandez, in a marked Lake Success County Police vehicle. Officer Alter testified that, at approximately 1:55 pm, they received a text message regarding the robbery at the London Jewelers store in Manhasset. Officer Alter testified that Sergeant Fernandez called the Lake Success Police dispatch and received information that four (4) male black suspects were seen leaving the scene of the robbery with guns and watches in a black Cadillac Escalade. Officer Alter and Sergeant Fernandez returned to the Lake Success Police Department to retrieve a portable Police radio that would allow them to communicate with the Nassau County Police Department and the New York City Police Department. After retrieving the radio, Officer Alter and Sergeant Fernandez headed to the Long Island Expressway. Officer Alter testified that after entering the Long Island Expressway, he observed a black Cadillac Escalade approaching them. He then observed four (4) male black individuals exit the Escalade, jump over the median, and run across eastbound traffic on the Long Island Expressway. Both Officer Alter and Sergeant Fernandez exited the vehicle and approached the Escalade. Officer Alter testified that Sergeant Fernandez jumped into the moving Escalade and put the vehicle in park. Officer Alter testified that he heard a radio notification that Officer Cancel was chasing the suspects on foot, so he returned to the Police vehicle, and drove off the Long Island Expressway and onto the service road to pick up Officer Cancel. Officer Alter testified that after picking up Officer Cancel, they drove into the Lake Success Golf Course. Officer Alter indicated that upon entering the golf course, he observed a male black, walking towards them. Officer Alter stated that the individual said to them that he was "on the job." Officer Alter arrested the individual, who he identified, in Court, as defendant Javon Gamble. Officer Alter testified that he performed a pat down search of defendant Gamble and felt a hard object in the cuff of his pants leg. Officer Alter also noticed that defendant Gamble was wearing two (2) pairs of pants. Officer Alter removed defendant Gamble's outer pair of pants and recovered a gold Rolex watch from defendant Gamble's inner pants leg. Officer Alter noted that defendant Gamble's hands were bleeding. Officer Alter testified that, when he was taking defendant Gamble to detention the next morning, defendant Gamble stated that "this is bullshit, all of the stuff was insured, they will get their money back." Officer Alter testified that he was not questioning defendant Gamble when he made the statement. On cross-examination, Officer Alter admitted filling out a narrative statement regarding the incident wherein he indicated that five (5) male blacks exited the Escalade, and that he observed a hand gun thrown out of the Escalade. Officer Alter conceded that those statements were incorrect.

Officer Carratu testified that on October 14, 2011, he was working a 7 am to 7 pm tour of duty for the Nassau County Police Department. He was in uniform, working alone, in a marked Police vehicle. Officer Carratu testified that, at approximately 1:53 pm, he heard the notification [*5]regarding the robbery at the London Jewelers store and the subsequent notifications regarding the chase. He first drove to London Jewelers and next to the Long Island Expressway. Officer Carratu testified that he eventually arrived at the Lake Success Golf Course and observed a male black in a white T-shirt on the golf course. Officer Carratu told the individual to stop and the individual ran the other way. Officer Carratu chased the individual and when he caught up to him, he was being handcuffed by another Police Officer. Officer Carratu identified the individual, in Court, as defendant Reggie Fowler.

Detective Gross testified that on October 14, 2011, he was working a 7:30 am to 4:30 pm tour of duty for the Nassau County Police Department. He was in plain clothes and driving an unmarked Police car. He testified that he heard the notification regarding the robbery at the London Jewelers store and the subsequent notifications regarding the chase. He first drove to the Long Island Expressway and observed the abandoned Escalade. Detective Gross testified that he heard a notification that one of the suspects was a male black wearing a white T-shirt and was running across the Lake Success Golf Course. Detective Gross drove off the Long Island Expressway and onto a side street looking for the west perimeter of the golf course to cut off the suspect. Detective Gross testified that he saw a male black wearing a white T-shirt run out of the golf course right behind his car. As he exited his car to chase the individual, a New York City marked Police car pulled up and uniformed N.Y.C. Police Officers got out of the car and chased the individual. Detective Gross testified that a N.Y.C. Police Officer arrested the individual. Detective Gross identified the individual, in Court, as defendant Reggie Fowler.

Detective Graziose testified that on October 14, 2011, he was assigned to investigate the London Jewelers store robbery. At approximately 11:30 p.m., he was contacted and directed to pick up food and bring it to the Nassau County Robbery Squad. Upon arriving at the Robbery Squad, he gave the food to an individual who was handcuffed in the cafeteria of the Robbery Squad. Detective Graziose identified the individual, in Court, as defendant Reggie Fowler. Detective Graziose testified that he introduced himself to defendant Fowler. After reading to defendant Fowler his "Miranda Warnings," using a Miranda card, which was admitted into evidence as People's Exhibit 1, Detective Graziose asked defendant Fowler to read the rights card out loud. Detective Graziose testified that defendant Fowler indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant Fowler made various oral statements to Detective Graziose. Detective Graziose reduced defendant Fowler's oral statements to a written statement. Detective Graziose testified that defendant Fowler then began to tell him a different version of events than the one that was reduced to writing. Detective Graziose testified that defendant Fowler also added that one of the individuals involved in the robbery had a gun. Detective Graziose reduced defendant Fowler's second oral version of the robbery to a second written statement. Defendant Fowler read the second written statement and signed the written statement. The second written statement did not include defendant Fowler's alleged statement about one of the individuals having a gun. Detective Graziose testified that he then went and spoke with other Police Officers. After detecting further inconsistencies in defendant Fowler's second statement, Detective Graziose went back and confronted defendant Fowler regarding the inconsistencies. Defendant Fowler then made changes to the second written statement. Detective Graziose testified that he had defendant Fowler again read the second written statement out loud. The second written [*6]statement was admitted into evidence as People's Exhibit 4. Detective Graziose indicated that he also asked defendant Fowler to submit to a buccal swab and defendant Fowler consented to same.

Officer Schmitt testified that on October 14, 2011, he was working a 7 am to 7 pm tour of duty for the Nassau County Police Department. He was in uniform, working alone, in a marked Nassau County Police vehicle. Officer Schmitt testified that, at approximately 1:53 pm, he heard the notification regarding the robbery at the London Jewelers store, and the subsequent notifications regarding the chase. He immediately drove to the Lake Success Golf Course. Officer Schmitt testified that, while on the golf course, he was approached by a maintenance man who gave him the keys to all of the buildings on the golf course. Officer Schmitt began searching each building on the golf course. After exiting one of the buildings, Officer Schmitt's attention was drawn to something dark on the golf course. He went to that area of the golf course and found an article of clothing. Officer Schmitt testified that he began searching around a nearby pond when he saw a "large bald black male head" suddenly stick up out of the water. Officer Schmitt ordered the man out of the pond and arrested him. Officer Schmitt identified the individual, in Court, as defendant Samuel Cephas. Officer Schmitt took defendant Cephas to the Nassau County Robbery Squad and stayed with defendant Cephas until he was interviewed by Detective Fitzgerald.

Detective Fitzgerald testified that on October 14, 2011, he was assigned to investigate the London Jewelry store robbery. At approximately 11:50 p.m., he spoke with an individual, who he identified, in Court, as defendant Samuel Cephas. Defendant Cephas was in the Robbery Squad line-up room handcuffed to a desk. Detective Fitzgerald testified that he introduced himself to defendant Cephas and asked him various pedigree questions. Detective Fitzgerald also asked defendant Cephas about the condition of his hand. Defendant Cephas indicated that his hand had already been treated at the hospital. Detective Fitzgerald testified that he read to defendant Cephas his "Miranda Warnings," using a Miranda card, which was admitted into evidence as People's Exhibit 6. Detective Fitzgerald testified that he had defendant Cephas read out loud the first line of the card. Detective Fitzgerald testified that defendant Cephas indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant Cephas made various oral statements to Detective Fitzgerald. Detective Fitzgerald reduced defendant Cephas's oral statements to a written statement. The written statement was admitted into evidence as People's Exhibit 7. Detective Fitzgerald also had defendant Cephas draw a map of the area of the robbery and the escape route used after the robbery. The map was admitted into evidence as People's Exhibit 8. Defendant Cephas also made various statements which inculpated the other defendants in the robbery.

CONCLUSIONS OF LAW

Defense counsels argue that there was no reason or basis for the stop of the Escalade in which the defendants were traveling. Defense counsel for defendant Nelson points out that the description of the alleged fleeing suspects was "multiple male blacks in an Escalade." He argues [*7]that since Officer Anastasis testified that he only observed two male blacks in an Escalade, the description did not match. Defense counsels also argue that there was no reason or basis to arrest each defendant since, at the time of their arrests, they were not doing anything wrong. Defense counsels argue that none of the statements allegedly given by their clients were voluntary since their clients were either injured, wet, tired or hungry. In addition, defense counsel for Reggie Fowler argues that the People elicited testimony regarding two statements allegedly made by Reggie Fowler for which the People failed to give any prior notice. Defense counsel for Reggie Fowler moves to suppress those statements.

The People argue that the Police had a basis to stop the Escalade which fled from the Police. The People also argue that there was probable cause to arrest and search each of the defendants. The People further argue that the statements made by the defendants were voluntarily given.

REASONABLE SUSPICION FOR THE STOP OF THE VEHICLE:

Officer Anastasis testified that he received a radio assignment regarding the robbery at the London Jewelers store in Manhasset. The radio assignment indicated that the suspects were male blacks who fled the scene in a black Cadillac Escalade. Officer Anastasis then observed a black Cadillac Escalade, traveling westbound on Northern Boulevard, with two (2) male black occupants. Defense counsel's argument that Officer Anastasis' observations did not provide him with a reasonable basis to stop the black Cadillac Escalade is simply absurd. It is clear that Officer Anastasis observed a vehicle fitting the exact description of the alleged getaway vehicle in the immediate vicinity of the robbery. Whether he observed, at that point, two (2) suspects or multiple suspects is of no moment. Based on the radio notification and Officer Anastasis's observations, this Court finds that Officer Anastasis had reasonable suspicion to stop the black Cadillac Escalade to investigate. (See People v. DeBour, 40 NY2d 210, 352 NE2d 562 [1976]; People v Ingle, 36 NY2d 413 [1975]; People v. Sobotker, 43 NY2d 559 [1978]; People v. Bond, 227 AD2d 412 [2nd Dept 1996]; People v. Bianchi, 85 NY2d 1022 [1995]).

PROBABLE CAUSE FOR THE ARREST OF EACH DEFENDANT:

Upon, Officer Anastasis attempting to pull the black Cadillac Escalade over, the vehicle fled and a high speed chase ensued. Thereafter, Officer Anastasis observed the vehicle committing various Vehicle and Traffic Law violations, including traveling at speeds of up to one hundred (100) miles per mile, driving on the wrong side of the street, and crashing into a marked Police car. Further, Officer Anastasis witnessed four (4) to five (5) male black individuals leap out of a moving vehicle, run across busy traffic lanes of the Long Island Expressway, jump over a concrete center barrier, and race from the Long Island Expressway. Based on the totality of the circumstances, this Court finds that Officer Anastasis had probable cause to arrest the individuals fleeing from the black Cadillac Escalade. (See People v. Samms, 258 AD2d 676 [2nd Dept 1999]; People v Rivera, 142 AD2d 742 [2nd Dept 1988]; People v [*8]Blount, 143 AD2d 924 [2nd Dept 1988] appeal denied 73 NY2d 919 [1989]; People v Davidson, 110 AD2d 776 [2nd Dept 1985]).

Officer Cancel provided a description of the four (4) male blacks who exited the Escalade. Officer Cancel testified that one suspect was dressed all in black, one was dressed in blue and white, one was wearing a dark shirt, and one was wearing a white tank top. Officer Cancel saw two (2) of the suspects head west and two (2) of the suspects head east. Officer Cancel testified that he chased the men and saw the suspect dressed in all black and the suspect dressed in blue and white jump over a fence and enter the Lake Success Golf Course.

Defendant Javon Gamble

Officer Cancel testified that once he entered the golf course, he observed one of the individuals who had fled the Escalade, dressed in blue and white, walking towards him. Officer Alter arrested the individual, who he identified, in Court, as defendant Javon Gamble. Defense counsel's argument that there was no basis to arrest defendant Gamble since he was simply walking across a golf course, is without merit in light of the underlying facts and circumstances as outlined above. Since this Court finds that there was probable cause to arrest the individuals that fled from the Escalade, and Officer Cancel testified that defendant Gamble was one of those individuals, there was probable cause for his arrest.

Defendant Leroy Nelson

Although the Court did not order a Dunaway hearing regarding defendant Nelson, since this Court heard testimony concerning the facts and circumstances regarding his arrest, the Court has considered same herein. Officer Cancel testified that while searching the golf course, he observed a second individual who had fled from the black Escalade, coming over a fence. Officer Cancel arrested the individual, who he identified, in Court, as defendant Leroy Nelson. Again, defense counsel's argument that there was no basis to arrest defendant Nelson since he was not doing anything wrong at that time is baseless. Since defendant Nelson was one of the individuals who fled from the Escalade, there was probable cause for his arrest.

Defendant Reggie Fowler

Detective Gross testified that he heard a notification that one of the suspects who had fled from the black Escalade was a male black wearing a white T-shirt, and was seen running across the Lake Success Golf Course. Detective Gross testified that he saw a male black wearing a white T-shirt run out of the golf course right behind his car. Detective Gross identified the individual, in Court, as defendant Reggie Fowler. Based upon defendant Fowler fitting the description, given by a fellow officer, of one of the individuals that fled from the Escalade, this Court finds that there was probable cause for his arrest. (See People v Hassan, 88 AD3d 740 [2nd Dept 2011]).

[*9]Defendant Samuel Cephas

Although the Court did not order a Dunaway hearing regarding defendant Cephas, and at the beginning of the hearing the People did not consent to same, since this Court heard testimony concerning the facts and circumstances regarding his arrest, this Court has considered same herein. Officer Schmitt testified that he heard the notification regarding the robbery at the London Jewelers store, and the subsequent notifications regarding the chase and descriptions of the suspects. Officer Schmitt testified that while he was searching the golf course, something dark drew his attention. He went to that area of the golf course and found an article of clothing. Officer Schmitt began searching around a nearby pond when he saw a head suddenly stick up out of the water. Based on the fact that defendant Cephas was inexplicably and suspiciously hiding under water in a pond, at the same golf course where the suspects had fled, and he fit the description of one of the suspects, as provided by a fellow officer, this Court finds that there was probable cause for his arrest. (See People v Hassan, 88 AD3d 740 [2nd Dept 2011]).

SEARCH OF THE DEFENDANTS:

Since this Court finds that there was probable cause to arrest each of the defendants, the search of each defendant, at the scene of their arrest, was legally permissible as a search incident to a lawful arrest. (See People v Weintraub, 35 NY2d 351 [1974]; People v Anderson, 91 AD3d 789 [2nd Dept 2012]).

Defendant Javon Gamble

During a search of defendant Gamble, a watch was recovered. Defendant Gamble's argument that Officer Alter's removal of his pants amounted to a public strip search is factually inaccurate. Officer Alter testified that defendant Gamble was wearing two (2) pairs of pants and it was necessary to remove the first pair to gain access to the hard object which Officer Alter detected in his cuff. Therefore, the removal of the first pair of pants did not render defendant Gamble "naked" by any stretch of the imagination. He obviously was still clothed below the waist with the second pair of pants. Hence, defendant Gamble's motion to suppress the watch is hereby denied.

Defendant Leroy Nelson

During of a search of the defendant Nelson, a cellular phone was recovered. Defendant Nelson's motion to suppress the cellular phone is hereby denied. In addition, there was testimony that defendant Nelson dropped a glove before he was arrested. Defendant Nelson's motion to suppress the glove is hereby denied since the glove was not seized from him, it was in fact abandoned property at the time of seizure. (See People v Howard, 50 NY2d 583 [1980]; People v. Chestnut, 91 AD2d 981 [2nd Dept 1983]; People v. Kosciusko, 149 AD2d 620 [2nd Dept 1989]).

[*10]STATEMENTS OF THE DEFENDANTS:

Defendant Gamble

Regarding the oral statement allegedly made by defendant Gamble to Officer Alter, it is clear that the defendant was in Police custody at the time he made the oral statement, since he had been arrested at the golf course. Although he had not been read his "Miranda Warnings" prior to making said statement, this Court finds that the defendant was neither being questioned nor interrogated by Officer Alter at the time he made the statement. Therefore, "Miranda Warnings" were not required. This Court further finds that said statement was spontaneously and voluntarily made by defendant Gamble to Police Officer Alter. Therefore, defendant Gamble's motion to suppress the oral statement made to Officer Alter is hereby denied.

Defendant Fowler

Regarding the oral and written statements allegedly made by defendant Fowler to Detective Graziose, the People elicited testimony from Detective Graziose that he introduced himself and asked defendant Fowler if he wanted to give a statement. Defendant Fowler responded "yes." Detective Graziose testified that he read to defendant Fowler his "Miranda Warnings" using a Miranda card, which was admitted into evidence as People's Exhibit 1. Detective Graziose asked defendant Fowler if he understood his rights and was willing to answer questions. Defendant Fowler indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant Fowler made various oral statements to Detective Graziose. Detective Graziose reduced defendant Fowler's oral statements to written statements. Defendant Fowler read the written statements and signed the written statements. Defendant Fowler made written changes to his second written statement and read the statement out loud. It is clear that defendant Fowler was in custody at the time he made the oral and written statements to Detective Graziose. This Court holds that defendant Fowler was properly advised of his "Miranda Warnings" by Detective Graziose, and that he knowingly, intelligently and voluntarily waived his right to remain silent, and agreed to answer the questions of Detective Graziose. This Court further finds that defendant Fowler voluntarily provided the written statements. This Court concludes that the oral and written statements made by defendant Fowler to Detective Graziose were voluntarily made without any threats, physical force or coercion. Consequently, defendant Fowler's motion to suppress the oral and written statements made to Detective Graziose is hereby denied. Defendant Fowler's motion to suppress the oral statements which were not previously noticed by the People is granted.

Defendant Cephas

Regarding the oral and written statements allegedly made by defendant Cephas to Detective Fitzgerald and the map allegedly drawn by defendant Cephas, the People elicited testimony from Detective Fitzgerald that he introduced himself and asked defendant Cephas if he wanted to give a statement. Defendant Cephas responded "yes." Detective Fitzgerald testified that he read to defendant Cephas his "Miranda Warnings" using a Miranda card, which was [*11]admitted into evidence as People's Exhibit 6. Detective Fitzgerald asked defendant Cephas if he understood his rights and was willing to answer questions. Defendant Cephas indicated that he understood his rights, signed and initialed the Miranda card, and agreed to answer questions. Defendant Cephas made various oral statements to Detective Fitzgerald. Detective Fitzgerald reduced defendant Cephas' oral statements to a written statement. Defendant Cephas read and signed the written statement. It is clear that defendant Cephas was in custody at the time he made the oral and written statements to Detective Fitzgerald and when he drew the map. This Court holds that defendant Cephas was properly advised of his "Miranda Warnings" by Detective Fitzgerald, and that he knowingly, intelligently and voluntarily waived his right to remain silent, and agreed to answer the questions of Detective Fitzgerald. This Court further finds that defendant Cephas voluntarily provided the written statement. This Court concludes that the oral and written statements and the map made by defendant Cephas to Detective Fitzgerald were voluntarily made without any threats, physical force or coercion. Consequently, defendant Cephas' motion to suppress the oral and written statements and the map is hereby denied.

This constitutes the Opinion, Decision and Order of this Court.

Dated: April 9, 2012

Mineola, New York

___________________

Hon. Norman St. George

Acting Supreme Court Justice