People v A.J.

[*1] People v A.J. 2005 NY Slip Op 52288(U) [11 Misc 3d 1073(A)] Decided on December 28, 2005 Supreme Court, New York County Goldberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 28, 2005
Supreme Court, New York County

The People of the State of New York

against

A.J., D.W. and TERRENCE ANDREWS, Defendants.



3141/2005



For the People: New York County Assistant District Attorney William Beesch

For Defendant A.J.: The Legal Aid Society, Michelle Gelernt, Esq.

For Defendant D.W. Lawrence Gerzog, Esq.

For Defendant Terrence Andrews: Adam Freedman, Esq.

Arlene D. Goldberg, J.

The following sets forth the reasons why I denied the defendants' respective motions to suppress physical evidence and defendants A.J.' and Andrews' motions to suppress statements.[FN1]

At the hearing that was held before me on October 6 and October 11, 2005, the People called four witnesses, Police Sergeants Hipolito Vargas and Sam Kourakos and Police Officers Stephen McKenna and Virgilio Martinez. I found them all to be credible. The People also introduced in evidence two exhibits, each entitled Statement Sheet. The defendants did not call any witnesses or introduce any evidence.

FINDINGS OF FACT

Sergeant Vargas, of the Manhattan South Task Force, has been a member of the New York City Police Department for nine years. On June 15, 2005, at about three o'clock in the morning, Sergeant Vargas and his partner, Officer Bellagamba, both in uniform and on assignment to patrol in a marked RMP, were in the vicinity of 39th Street and 9th Avenue, checking out an illegally parked car. At that time, Sergeant Vargas happened to look toward 8th Avenue and noticed a man approaching him at a trot. The man, who was putting what appeared to be jewelry in his pocket, would not respond when the police asked why he was running, and began to walk away. Sergeant Vargas detained him and conducted a pat down search for weapons with negative results. Sergeant Vargas then asked him, ". . . what's going on?" As the [*2]man responded, "I've been robbed," Sergeant Vargas heard three gunshots ring out from about a half a block away (between 8th and 9th Avenues), on 39 th street. He then released the man and told his partner to report the shots fired over the police radio.

A few seconds after hearing the gunshots, Sergeant Vargas saw two vehicles approaching at "a pretty good rate of speed" westbound on 39th Street between 8th and 9th Avenues. He recognized that one of the vehicles was an unmarked RMP that had its grill lights turned on. The other vehicle was a white SUV that had a man riding outside on the passenger side running board. Sergeant Vargas testified that the unmarked RMP was to the driver's side of the SUV and was traveling either parallel to or slightly behind it. He stated that he believed that the unmarked car was pursuing the white SUV. However, that was not the case. Upon seeing the two vehicles, Sergeant Vargas and his partner entered the middle of the street with their weapons drawn causing the SUV to stop. Sergeant Vargas explained that his weapon was drawn because of the nearby gunfire he had just heard. According to Sergeant Vargas' testimony, the unmarked police car, which was occupied by Police Inspector Spinella and Sergeant Kourakos, both of whom were in uniform, stopped right next to the SUV. At that point, Sergeant Vargas saw the man who had been riding on the running board jump off the SUV and head north on 9th Avenue. Officer Bellagamba, at Sergeant Vargas' direction, left the scene to stop that individual. At about the same time, Sergeant Vargas observed Inspector Spinella and Sergeant Kourakos exit their vehicle and approach the SUV. Sergeant Vargas then left the scene and went south on 9th Avenue to look for the man he had initially detained because he wanted to alert the other responding units that the man was not armed and might be a victim.

Sergeant Vargas estimated that he returned to the scene approximately 15 seconds later and heard Inspector Spinella yelling, "gun, gun, gun." According to Sergeant Vargas, at that time, Inspector Spinella was situated on the passenger side of the SUV and Sergeant Kourakos was on the driver's side. Sergeant Vargas testified that he also observed that both the front and rear passenger doors of the SUV were open and that the windows on the passenger side were down. He additionally saw a man on the ground lying parallel to the SUV with his feet to the rear door and head to the front door on the passenger side of the vehicle. Sergeant Vargas never saw the Inspector enter the SUV or take the man who was lying on the ground out of the vehicle.

Sergeant Vargas, who did not recall seeing any other units or civilians on the scene at that time but conceded other responding units may have been present, then approached the SUV and, through the open rear passenger side door, observed a dark, semiautomatic pistol inside the rear passenger compartment of the vehicle. However, he could not remember if the gun was on the floor or on the back seat of the SUV. Sergeant Vargas did not see anyone in the vehicle at the time he observed the weapon and never entered or leaned into the SUV to view the gun. According to his testimony, the gun was visible to him through the open door from a distance of about a door length away.

Upon sighting the gun, Sergeant Vargas did not remove it from the SUV. Instead, he just closed the rear passenger side door to secure the weapon. He explained that he proceeded in this fashion because the man on the ground had not yet [*3]been handcuffed. Sergeant Vargas then handcuffed the person on the ground.[FN2] According to Sergeant Vargas, after that "the scene got really hectic because there were so many cops and so many people running around." However, he testified that he did not see the Inspector leave the area where the grounded man had been cuffed. Sergeant Vargas believed that after sighting the gun he may have made a general announcement that there was a gun in the back of the SUV. However, he was not completely certain of this. He was also not certain about what he did after handcuffing the man, but thought that he had gone back to help his partner, who had earlier apprehended the individual that had jumped off the SUV. In any event, he testified that he never saw Police Officer McKenna, who the evidence shows later removed the gun from the SUV, arrive on the scene or enter the vehicle.

Sergeant Kourakos is a 15-year veteran of the New York City Police Department. In that time, he has worked various commands and has made approximately 500 arrests, about 200 of which involved weapons. Since June of 2003, he has been assigned to the Police Academy. However, on June 15, 2005, at about 3:00 a.m., he was on assignment with Duty Inspector Spinella, traveling westbound on 39th Street from 8th to 9th Avenues, in an unmarked RMP. He testified that they were both in uniform and Inspector Spinella was driving the vehicle. As they proceeded down 39th street, with the car windows down, Sergeant Kourakos had a brief and innocuous verbal exchange with a man that was standing a few feet behind a white SUV that was situated about half way between 8th and 9th Avenues. The unmarked police vehicle then continued west on 39th Street. When it was about a quarter away from the end of the block, Sergeant Kourakos heard three gunshots coming from behind him, whereupon the police vehicle he was in immediately came to a stop. After stating to Inspector Spinella, "those were gunshots," Sergeant Kourakos, saw the same white SUV that he had just previously seen on the block, behind him, "traveling hastily" westbound on 39th Street toward 9th Avenue. According to Sergeant Kourakos, he made that observation within seconds of hearing the gun shots. Approximately one to three seconds after that, Sergeant Kourakos, saw the SUV come to a stop, next to his vehicle, after being ordered to stop by Sergeant Vargas.

Sergeant Kourakos testified that he then approached the driver side of the SUV, and Inspector Spinella went to the passenger side. At gunpoint, Sergeant Kourakos issued verbal commands to the driver to turn off the ignition and get out of the car. Initially, the driver did not comply and said, "it's them behind us." Sergeant Kourakos interpreted the driver's remark to be referring to the gunshots that had been fired. One to four seconds later, the driver opened the car door and Sergeant Kourakos removed him from the vehicle and caused him to lie on the ground.[FN3] After the driver opened the door and was on his way down to the ground, Sergeant [*4]Kourakos heard Inspector Spinella yell, "gun." Concerned for his safety, and the safety of others, Sergeant Kourakos then immediately grabbed the out-stretched hands of the individual seated in the rear, driver's side, passenger seat. At that time, other police officers came on the scene and assisted Sergeant Kourakos in removing that individual from the vehicle, placing him on the ground and handcuffing him. At Sergeant Kourakos' direction, the driver was also handcuffed. Sergeant Kourakos testified that he did not recall seeing anyone in the front passenger seat of the SUV at that time. Sergeant Kourakos also stated that from where he was standing, he could not see what Inspector Spinella was doing on the other side of the SUV. He additionally did not know where Sergeant Vargas was at the time that he [Sergeant Kourakos] removed the driver from the SUV. According to his testimony, the whole situation happened rapidly. He could not remember the names of the people he had removed from the SUV and could not identify any of the defendants as being those individuals. Sergeant Kourakos, in any event, recalled that after opening the rear, driver's side, passenger door and removing the passenger, he shut the door and stepped back. He testified that at that point in time, everybody was in custody, handcuffed and other personnel were taking control of them and putting them in cars. Sergeant Kourakos then proceeded to go up toward the corner of 39th and 8th Avenue to look around. He testified that Inspector Spinella joined him there later on.

Officer Martinez, of the "Cabaret unit", has been with the New York City Police Department for 16 years. He testified that on June 15, 2005, at about 3:00 a.m., he was in front of a club at 38th Street between 8th and 9th Avenues with his partners, Police Officers Milmore and McNelis At that time, Officer Martinez heard three or four gunshots ring out but could not tell the direction the shots were coming from. He then heard a radio transmission of shots fired at 39th and 9th. He immediately proceeded to that location with his partners, in an unmarked police car. At that time, he saw a four door, white SUV and two other police vehicles - one marked and one unmarked. The marked car was in front of the SUV on 9th Avenue and the unmarked car was adjacent to the SUV. He additionally observed a male, defendant A.J., lying on the ground next to the driver's side of the SUV with the driver's door open.

Officer Martinez exited his vehicle behind his two partners and then went over to the open, rear door on the driver's side of the SUV. At that time, he saw his partners removing defendant D.W. from the back seat behind the driver's seat. Officer Martinez testified that he was unable to see from that vantage point if either the front or rear passenger door of the SUV was open or not. He also did not notice if there was anyone else in the SUV. According to Officer Martinez' testimony, after defendant D.W. was removed from the vehicle, he and his partners placed him down on the ground in front of the other person who was on the ground.

At some point in time, Officer Martinez saw defendant Andrews standing near the building line on the north side of 39th Street and 9th Avenue. He could not see if Andrews was handcuffed but testified that Andrews was surrounded by police officers. According to Officer Martinez' testimony, either Sergeant Vargas or his partner told him that defendant Andrews had been removed from the front passenger seat of the SUV.

Officer Martinez further testified that he never looked into the SUV [*5]and did not see a gun until after Officer McKenna came out of the SUV and indicated that he had found a gun. According to Officer Martinez' testimony, he did not see Officer McKenna on the scene until after defendant D.W. had been removed from the vehicle and was placed on the ground.

Officer McKenna, who has been a police officer since 1995, testified that on June 15, 2005 at about 3:00 a.m, he was in the vicinity of 44th Street and 9th Avenue when he heard a radio transmission of "Shots fired, Officer Needs Assistance." He and his partner, Officer DePasquale, immediately proceeded in their police car to 39th Street and 9th Avenue. When they arrived at that location, approximately one minute after receiving the radio call, Officer McKenna observed a white Ford Explorer stopped approximately 40 to 50 feet from 9th Avenue. He testified that the occupants of the vehicle had already been taken out of the car and were on the ground being secured by other officers who were on the scene. He recognized Sergeants Kourakos and Vargas as well as another officer from Task Force as being among the Officers who were securing the people on the ground. He also saw an Inspector on the scene who was standing by the SUV on the passenger side.

Officer McKenna's partner proceeded to the driver side of the SUV to help another Officer handcuff the people who were outside of the vehicle. At about the same time, Officer McKenna entered the SUV. He stated that he did so because the Inspector had directed him to search the vehicle. Initially, he testified that the Inspector had also told him that they were still looking for the gun. However, at another point in his testimony, he stated that the Inspector never said anything about a gun only that he should search the SUV. In any event, Officer McKenna proceeded to enter the vehicle through the rear driver's side door. According to his testimony, at the time, both doors on the driver's side were open, the passenger side doors were closed and the interior lights were on in the vehicle. Inside the SUV, Officer McKenna, saw a semiautomatic handgun, in plain view, in the middle of the rear bench seat with a fully loaded magazine next to it.

Officer McKenna secured the gun and the magazine and then held it up in the air to indicate that he had recovered the weapon. He was then directed to give the weapon to Officer Martinez who was the assigned arresting officer.

According to Officer Martinez' testimony, the three defendants were arrested at about 3:30 a.m. and transported to the Midtown South Precinct.[FN4] At about 11:55 a.m. that same day, Detective Walsh commenced conducting separate interviews of all three defendants in a squad room. Officer Martinez testified that he was present throughout each interview and that he witnessed Detective Walsh administer the Miranda rights to each defendant before speaking to them. However, he was uncertain if Detective Walsh was reading verbatim from the sheet he had containing the Miranda rights or was reciting the rights from memory. He further heard each defendant indicate that they understood all of their rights. Defendants A.J. and Andrews agreed to speak to the Detective. However, defendant D.W. refused. The "Statement Sheet" form [*6]signed by Detective Walsh and defendant Andrews containing the Miranda rights and defendant Andrews' initialed responses to the rights was admitted as People's 1 in evidence. People's 3 in evidence is a copy of an identical form, also signed by Detective Walsh, except it contains the initialed responses and signature of defendant A.J.. Both defendant A.J. and Andrews, admitted, inter alia, that they were in the car in which the gun was found. Officer Martinez testified that no threats or promises were made to either defendant to get them to speak and that they were not denied water, food or the use of the bathroom.

CONCLUSIONS OF LAW

Defendants maintain that the stop of the SUV was unlawful. They alternatively argue that even if the stop was legal, the actions of the police in approaching the vehicle with guns drawn, removing them from the vehicle and immediately placing them face down on the ground constituted an arrest for which the police had no probable cause. The defendants also maintain that the People have failed to establish that the recovery of the gun was lawful because they did not call Inspector Spinella as a witness at the suppression hearing. According to the defendants in the absence of testimony by Inspector Spinella, the court cannot infer that he saw a gun or that the circumstances under which he made any such observation were constitutionally permissible. The defendants therefore maintain that the physical evidence seized in this case must be suppressed. Defendants Andrews and A.J. assert that their respective statements are subject to suppression as fruits of the unlawful police action and also because the People failed to establish that they were adequately advised of their Miranda rights.

On a motion to suppress physical evidence, the People have the initial burden of going forward to establish the legality of the police action. See, People v. Malinsky, 15 NY2d 86 (1965); People v. Baldwin, 25 NY2d 66 (1969). However, the defendant bears the ultimate burden to show that the police acted unlawfully and in violation of his constitutional rights. See, People v.Berrios, 28 NY2d 361(1971). On a motion to suppress statements, the People must prove beyond a reasonable doubt that a defendant's statement was lawfully obtained. See, People v. Huntley, 15 NY2d 72 (1965).

The primary consideration in determining the legality of police conduct is whether the action taken was reasonable in view of the totality of circumstances. See, People v. Anderson, 17 AD3d 166 (1st Dept 2005). The police have the right to stop a motor vehicle when they have reasonable suspicion that its occupants have been engaged, are presently engaged, or are about to engage in criminal conduct. People v. Sabotker, 43 NY2d 559 (1978). Reasonable suspicion is "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand." People v. Cantor, 36 NY2d 106, 112-113 (1975).

Defendants, relying on People v. Gutierrez, 8 Misc 3d 1012 A, 2005 WL 1617869 (Nassau County Dist Ct), contend that observation of a motor vehicle in an area in which gun shots are heard does not provide reasonable suspicion to stop the car. In Guttierrez, the police were responding to a radio call of shots fired at a certain location. No other information was provided. En route to the location, the police saw [*7]the vehicle defendant Gutierrez was in and followed it for about a mile, at which time the police forcibly stopped the vehicle. There was nothing unusual about the manner in which the vehicle was traveling or any suspicious conduct by the occupants during the time the police followed the car, nor did the police observe the commission of any traffic infractions. In determining that reasonable suspicion was lacking, the Gutierrez court not only cited these factors but also that the police had absolutely no confirmation that the report of shots fired had any basis or any knowledge that a car was somehow involved.

People v. Crump, 217 AD2d 902 (4th Dept 1995), is another case involving a stop of a motor vehicle following a radio transmission of shots fired. The radio transmission also stated that a dark colored vehicle, possibly a Cadillac, was seen speeding from a specified area. Some eight minutes later, the police observed defendants brown Cadillac parked about one or two minutes from that area, and when the police car drove by the Cadillac the occupants looked away from the police car. After the Cadillac left the parking space, the police stopped the vehicle. The Court concluded that these circumstances did not provide the police with reasonable suspicion that the defendant had committed or was about to commit a crime.

In contrast to both Gutierrez and Crump, in this case there are no significant geographical or temporal gaps between the shots and the sighting of the vehicle. Moreover, here, Sergeant Vargas, an experienced police officer, personally heard the gunshots ring out and was able to identify the area from where the shots had originated. Seconds later he saw the defendants' vehicle moving at a good rate of speed away from the direction that the gun shots had come from with a man riding on the outside of the vehicle. Ordinary prudence and caution would not make it unreasonable under these circumstances to suspect the occupants and the man riding on the outside of the SUV of criminality, sufficient to justify an investigatory stop of the vehicle. Furthermore, the gunshots came from the same direction that the man who said he had just been robbed had come from and soon after Officer Vargas initially encountered that man. Additionally, Sergeant Vargas believed that the unmarked police car was pursuing the defendants' vehicle. While this proved not to be so, the perception that such was the case was not unreasonable given the startling and fast paced sequence of events and the two vehicles were, in fact, traveling in close proximity to each other. In any event, the mistake in fact would not render the police action illegal. See, People v. Smith, 1 AD3d 965 (4th Dept 2003). Given that shots had been fired, it was completely reasonable for Sergeant Vargas and his partner to have their weapons drawn when they stopped the SUV as a precautionary, safety measure.

Furthermore, even assuming that Sergeant Vargas did not have reasonable suspicion of criminality when he stopped the SUV, it defies logic to conclude that neither he nor Sergeant Kourakos, who had also heard the gunshots and observed the SUV proceed hastily away, as well as Inspector Spinella, who at the very least knew that Sergeant Kourakos had heard the gunshots, could not have lawfully stopped and thereafter approach the SUV to obtain what, if any, information any of the occupants had about the gun play that had just taken place in the very same geographical area that they had observed the SUV coming from. The function of the police is not limited to ferreting out and apprehending perpetrators but also to [*8]identifying witnesses to and/or victims of crimes. The fact that the crime in this case involved the very recent use of a loaded gun, ostensibly on a public street, made the circumstances all the more exigent and the threat to the public safety all the more real. As recognized by the Court of Appeals in People v. Spencer, 84 NY2d 749 (1995), there may be situations where a stop of a car may be permissible in the absence of reasonable suspicion of criminal activity or the commission of a traffic infraction. The determination as to whether such a situation exists must be determined on a case by case basis balancing the governmental interest to be promoted against the Fourth Amendment interests of the individuals involved. Id. It is clear that this case involved a substantial government interest in detecting the whereabouts and identity of the individual who had just fired a weapon about three times in the very same area that the SUV was observed traveling away from. These circumstances clearly outweighed the defendants interest in proceeding on in their vehicle without police interference. The police would have been derelict in their duties had they allowed the SUV to go on its way without first determining whether any of the occupants were witnesses, victims or perpetrators of the gunshots that they had just heard. Under the circumstances of this case, there was a genuine need for the police to take immediate action in order to "freeze an ongoing or dangerous situation and acquire more information in contemplation of further action. " See, People v. Spencer, supra, at 757. See also, People v. Hernandez, 177 Misc 2d 882 (Sup Ct Bronx Cty 1998). The exigencies found lacking in Spencer to justify the vehicle stop in that case are not lacking here.

Moreover, the stop of the SUV was, in any event, completely valid since the police are entitled to stop a motor vehicle when they have reasonable suspicion and/or probable cause that a driver or occupant of a motor vehicle has committed a traffic infraction. See, People v. Ingle, 36 NY2d 413 (1975); People v. Robinson, 97 NY2d 341 (2001).

The Vehicle and Traffic Law, with certain exceptions not applicable here, prohibits an individual from riding outside of a vehicle that is being operated upon a roadway. See, VTL §1233 subd. 2. It is also illegal for a vehicle operator to knowingly permit any person to attach himself to the operator's vehicle. See, VTL §1233 subd. 3. Since Sergeant Vargas had observed a person riding outside of the SUV, he had probable cause that a traffic infraction had been committed and therefore was entitled to stop the vehicle. Id. The stop is lawful even though the traffic infraction may not have been the primary motivation for the stop. People v. Robinson, supra. The stop is also lawful even though it was effected at gunpoint. See, People v. Livigni, 88 AD2d 386 (2d Dept 1982), affd 58 NY2d 894 (1983). As previously discussed, having just heard gunshots coming from the same direction that the SUV was traveling, by itself constitutes good reason for Sergeant Vargas and his partner to have drawn their weapons as a precautionary safety measure.

When, as here, a vehicle is lawfully stopped, the police may open the doors of the vehicle while the occupants are inside, see, People v. David L., 56 NY2d 698 (1972); People v. Edwards, 222 AD2d 603 (2d Dept 1995), as well as lean into the vehicle to speak to an occupant, see, People v. Vasquez, 106 AD2d 327 (1st Dept 1984), affd. 66 NY2d 968 (1983). The police may also direct the driver to turn off the ignition, see ,People v. Diaz, 41 NY2d 876 (1977), and step out of the vehicle. People v. [*9]Robinson, 74 NY2d 773 (1989), cert. denied, 493 US 966 (1989). In fact, the police have the right to order all of the occupants to exit the vehicle without any articulable belief that there is a weapon inside. Maryland v. Wilson, 519 US 408 (1997); People v. Robinson, 74 NY2d 773, 774, supra; People v. Alvarez, 308 AD2d 184 (1st Dept 2003). These authorized actions by the police may be done with weapons drawn where circumstances make it reasonable for the police to take precautionary measures to assure their safety. See e.g. People v. Livigni, supra; People v. Dunnigan, 1 AD3d 930 (4th Dept 2003).

The actions of Sergeant Kourakos and Inspector Spinella were in accordance with these well established rules of law. Although Sergeant Kourakos did not give any testimony about seeing the man on the running board, the record permits the inference that he did since Sergeant Kourakos testified that upon hearing the gunshots, he saw the white SUV behind him, traveling hastily away. Thus, his vantage point gave him the opportunity to see the same traffic infraction that Sergeant Vargas had observed. See, Matter of Jose R., 88 NY2d 863 (1996). In any event, it is clear from the record that both Sergeant Kourakos and Inspector Spinella had seen Sergeant Vargas make a gunpoint stop of the SUV, within seconds of the gunshots. As such, it was not unreasonable for them to have come to his assistance and detain the car occupants until Sergeant Vargas returned to the scene. See, People v. King, 235 AD2d 227 (1st Dept 1997); People v. Youmans, 228 AD2d 345 (1st Dept 1996). Since both Sergeant Kourakos and Inspector Spinella knew that shots had been fired [FN5], it was completely reasonable for both of them to have had their guns drawn when they approached the SUV as a safety, precautionary measure.

The fact that the driver and front passenger were made to exit the SUV and to lie face down on the ground did not transform the encounter into an arrest. See, People v. Johnson, 253 AD2d 677 (1st Dept 1998). These actions taken by Sergeant Kourakos with respect to the driver, and, as the evidence indicates circumstantially, by Inspector Spinella with respect to the front seat passenger, were completely lawful and constituted further, reasonable, self-protective, precautionary measures. As previously discussed, the Officers had the right to have all the occupants exit the lawfully stopped SUV. It was additionally legal for Sergeant Kourakos to direct the driver to turn off the ignition. The driver's failure to initially comply with Sergeant Kourakos's lawful commands justified a heightened level of concern. The police were not required to take the driver at his word that the shots were coming from the people behind them. In sum, the actions taken by the police with respect to the driver and front seat passenger at that point in time constituted reasonable steps to address legitimate safety concerns, [*10]particularly since another person was still in the vehicle.

Once Sergeant Kourakos heard Inspector Spinella yell "gun" it provided him with sufficient heightened reason to fear for his safety and the safety of others. It further provided him with sufficient grounds to believe that there was a gun in the vehicle or in the possession of one of the occupants. Under these circumstances, it was entirely reasonable for Sergeant Kourakos to grab the outstretched hands of the backseat passenger as a "reflexive protective measure," see, People v. Henson 21 AD3d 172, 176 (1st Dept 2005), to prevent him from getting access to the gun.

The subsequent actions that were then taken with respect to the backseat passenger, including handcuffing him, as well as the driver, were reasonable safety measures. Furthermore, at that point there was clearly, at the very least, reasonable suspicion of a crime by the occupants sufficient to support the forcible detention.

After Sergeant Vargas approached the SUV and saw the weapon in plain view in the vehicle, probable cause existed for the arrest of all the occupants. Thus, at that point, the handcuffing of the individual who was lying on the ground on the passenger side of the SUV and the continued detention of the other occupants was justified.

The defendants appear to argue that once all the occupants had been secured, the police could not search the vehicle. In support of this proposition the defense cites People v. Torres,74 NY2d 224 (1989). I find the argument without merit. In contrast to Torres, the gun in this case was in plain view in the vehicle as evidenced by Sergeant Vargas' testimony. Sergeant Vargas did not have to enter or lean into the vehicle to view the gun. Furthermore, both Sergeant Kourakos and Sergeant Vargas had heard Inspector Spinella yell gun. It is further known from Sergeant Vargas' testimony that Inspector Spinella was situated on the passenger side of the SUV when he was yelling, "gun..." and that Inspector Spinella never entered the vehicle. Inspector Spinella had a legal right to be standing on the passenger side of the SUV and could lawfully view the interior of the vehicle from that vantage point, particularly since at the time, the back seat passenger was still in the SUV. Sergeant Vargas' viewing of the interior of the vehicle while standing on the street was similarly permissible. In short, neither conducted an illegal search of the vehicle.

The recovery of the gun by Officer McKenna was lawful. While it is true he entered the SUV and then saw the gun and magazine in plain view on the back seat, he merely retrieved the gun that had been previously lawfully sighted in plain view by both Inspector Spinella and Sergeant Vargas.

The final issue to be addressed with respect to the physical evidence is whether the People have come forward with sufficient proof to establish that the sighting of the gun by Inspector Spinella did not arise from an unlawful search of the SUV. I find that they have.

As an initial matter, I reject the defendants' claim that the fact that Inspector Spinella was heard to have yelled "gun" does not permit an inference that he actually had seen a gun. It is unreasonable to think that a police officer who has achieved Inspector level status would be alerting his brother officer to the presence of a gun if, in fact, he had not observed a gun in the SUV or in possession of one of the [*11]occupants. In this Court's view, the inference that Inspector Spinella saw a gun is the only logical inference to be drawn from the evidence.

Contrary to defendant's contention, the fact that Inspector Spinella did not testify at the suppression hearing does not preclude such a finding. It similarly does not preclude a finding that the sighting of the gun did not result from an illegal search of the car. It is well settled that the People are not required to produce any particular witness at a suppression so long as the witnesses that they do call suffice to meet their burden of going forward. See, People v. Parris, 83 NY2d 342 (1994). It is also well settled that police officers are deemed to be reliable informants. Id. The law also provides that hearsay is admissible at a suppression hearing. Id; CPL 710.60 (4). Courts of this State have recognized that at a suppression hearing proof of what a non-testifying officer observed may be established through the testimony of other witnesses who were present at the scene or otherwise have a demonstrated basis of knowledge. See, e.g. People v. Jose R., supra; People v. Norman, 304 Add 405 (1st Dept 2003), lv denied 100 NY2d 623 (2000); People v. Remy, 7 Misc 3d 1002 (A) (Rockland County Court 2005). Courts are permitted to make reasonable inferences based on the evidence that is adduced at a suppression hearing. The case on which the defendant's rely, People v. Onnie Canady, 9/21/89 N.Y.L.J. p. 26, col.2 (Supreme Court, Queens County) does not hold otherwise. In that matter it was determined that the People had failed to establish the basis for the information submitted by the non-testifying sending officer. That is not the situation here.

In this case, the actions and statements of Inspector Spinella are detailed by other witnesses who personally observed the events. Especially important is Sergeant Vargas' testimony that he saw Inspector Spinella standing on the passenger side of the SUV at the time he heard Inspector Spinella yell "gun..." Further, that he never saw Inspector Spinella enter the SUV and that right after the Inspector had yelled gun, Sergeant Vargas approached the SUV and also saw the gun in plain view while standing outside of the vehicle. This testimony was alone sufficient to meet the People's burden of going forward since it supports the inference that Inspector Spinella had made a plain view sighting of the gun from a lawful vantage point. The burden then shifted to the defense to establish that an illegal search occurred. The defense did not meet that burden in this case. They did not present any evidence or testimony to support the claim that Inspector Spinella or any other officer had acted illegally in the sighting and/or recovery of the gun and/or magazine. In fact, all of the evidence adduced by the People was not contradicted or disputed by the defense.

Based on the uncontradicted, credible proof presented by the People at the suppression hearing, and the reasonable inferences that can be made from said proof, I find the entirety of the police conduct to have been legal and not in violation of any constitutional safeguards. Accordingly, defendants' motions to suppress the physical evidence are denied.

Since the Court concludes that the stop and subsequent recovery of the physical evidence from the vehicle was lawful, suppression of the statements made by defendants A.J. and Andrews as fruit of the poisonous tree is denied.

Suppression of the statements on the ground that defendants [*12]A.J. and Andrews were not adequately advised of their rights is also denied. The law does not require a "talismanic incantation" of a precise formula when the warnings are administered so long as the rights under Miranda are conveyed to the defendant. See e.g., California v. Prysock, 453 U.S. 355 (1981); Duckworth v. Eagan, 492 US 195 (1989); People v. Parker, 258 AD2d 479 (2nd Dept 1999). The evidence presented by the People in this case establishes beyond a reasonable doubt that defendants A.J. and Andrews were adequately advised of their rights, indicated that they understood them, and that they made an intelligent, knowing and voluntary waiver of those rights.

Therefore, in accordance with the ruling rendered from the bench on a prior court date, the motions to suppress physical evidence and statements are denied.

The foregoing is the decision and order of the court.*

Dated: December 28, 2005

_______________________________

Arlene D. Goldberg, J.

*This decision has been modified for publication purposes to the extent that initials are used instead of the names of two of the defendants since their cases were subsequently dismissed and sealed.

Footnotes

Footnote 1:Defendant D.W. also moved to suppress statements. However, his motion was moot since the evidence showed that he had refused to speak to the police.

Footnote 2:Sergeant Vargas never learned the name of the person that he had handcuffed and could not identify any of the defendants as being that person.

Footnote 3:It is unclear from the testimony if Sergeant Kourakos physically placed the driver on the ground or if the driver went to the ground at his direction. See T at 148, 149, 150 and 164.

Footnote 4:The individual who had been riding on the running board was also arrested and taken to the precinct. The case against him was dismissed after a preliminary hearing in the Criminal Court.

Footnote 5:Although there is no direct evidence that Inspector Spinella heard the gunshots since he did not testify, one can infer that he did since their was evidence that the windows were down in the vehicle that he occupied with Sergeant Kourakos and he brought the vehicle to a stop immediately after the shots had rung out. See, Matter of Jose R., supra. In any event, it is clear from the evidence that, at the very least, Inspector Spinella knew that Sergeant Kourakos had heard gunshots.