People v Lopez

[*1] People v Lopez 2007 NY Slip Op 51254(U) [16 Misc 3d 1104(A)] Decided on June 1, 2007 Supreme Court, Kings County Sullivan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2007
Supreme Court, Kings County

The People of the State of New York

against

Gary Lopez, Defendant.



3998/06

James P. Sullivan, J.

The defendant is charged with criminal possession of a weapon in the third and fourth degree. A Dunaway-Mapp-Huntley hearing(Dunaway v. New York, 442 U.S. 200 (1979); Mapp v. Ohio, 367 U.S. 643 (1961); People v. Huntley, 15 NY2d 72 (1965)) was conducted before this court on May 23 and 24, 2007. Police Officers Brian Tiernan and Peter Rubin testified on behalf of the People.

From the credible evidence adduced at the Huntley hearing, I make the following findings of fact:

Findings of Fact

On May 23, 2006, at approximately 6:50 p.m., Officers Tiernan and Rubin received a radio run of a man with a gun, with a clothing description, at Covert Street and Evergreen Avenue in Brooklyn. When they arrived at that location, they observed the defendant, who matched the description, standing with two other men next to a playground. Officer Tiernan observed the defendant put his hand to his waist area twice, and then saw the outline of a gun under his shirt. The officers got out of their car and approached the defendant, as Officer Tiernan told the defendant not to move. The defendant turned and ran, with Officer Tiernan in pursuit. The officer saw the defendant drop the gun under a piece of plywood. Officer Tiernan retrieved the gun, while Officer Rubin, who was following in the police car, apprehended the defendant after he ran into a building.

Officer Rubin spoke to the defendant at the precinct at about 9:30 p.m. that night. After the Miranda warnings were read to him, the defendant answered yes to each question, and the officer placed a check next to each warning, indicating that the defendant had been advised of his rights and understood them. The defendant then signed the Miranda warnings, which were introduced into evidence at the hearing. The defendant wrote out a statement which he signed and dated. In essence, the defendant stated that the police had chased him, that he had gotten tired, and they caught him. The defendant also wrote that the police had accused him of shooting someone in another location, which the defendant stated was impossible because he had been playing ball in the park. The statement was also introduced into evidence.

Approximately three hours later, Officer Rubin told the defendant that a detective from the [*2]Trigger Lock unit wished to speak with him, and the defendant agreed. Officer Rubin brought the defendant to the detective squad and into a room with Detective McCormick. The officer was in a viewing room and watched the interview through a one-way mirror. The detective's back was to him, and he could not hear any of the interview. However, he observed the defendant writing a statement, and the detective showed him the statement once the interview was concluded, which the officer quickly skimmed. Officer Rubin identified a photocopy of the statement as the statement that defendant had written and signed, and it was introduced into evidence at the hearing. In sum, the defendant wrote that he had a fight with another boy earlier in the week, that this boy had dropped a gun, and that the defendant picked it up. On the day he was arrested, he heard that the boy was coming after him, so he went to get the gun, and the police chased him and he threw the gun.

Conclusions of Law

Based upon the foregoing findings of fact, I make the following conclusions of law:

An anonymous tip of a man with a gun, even with a description, does not provide reasonable suspicion for a stop. Florida v. J.L., 529 U.S. 266 (2000); People v. Moore, 6 NY3d 496 (2006). However, the radio run coupled with the officer's observations at the scene, justified, at the least, a common-law inquiry. See People v. De Bour, 40 NY2d 210 (1976). Once the defendant began to run, the officer had reasonable suspicion to pursue the defendant, and probable cause to arrest after the defendant dropped the gun. See Moore, 6 NY3d at 501. Therefore, the defendant's motion to suppress the physical evidence is denied.

With respect to the voluntariness of the statements, the People bear the burden of proving, beyond a reasonable doubt and from the totality of the circumstances, that the statements were voluntarily made. See People v. Huntley, 15 NY2d at 78. Having listened to the testimony of Officer Rubin and reviewed the documentary evidence, this court is satisfied that the People have met their burden of proving, beyond a reasonable doubt, that defendant's first statement, elicited by Officer Rubin, was voluntarily made. The defendant was properly advised of his Miranda rights before any questioning, he indicated that he understood those rights, and he answered "yes" that he was willing to answer questions. There is no evidence that threats, coercion or trickery were used to obtain the statement.

A different result must be reached as to the second statement allegedly made to Detective McCormick. The fact that it cannot be established that Miranda warnings were given a second time is not fatal, as Miranda warnings are not required where the questioning occurs within a reasonable time after the first interrogation, and the defendant remains in continuous custody. See People v. Pierre, 300 AD2d 324 (2d Dep't 2002); People v. Thomas, 233 AD2d 347 (2d Dep't 1996). However, Miranda warnings are "simply a prerequisite' to the admissibility of any statement made by a defendant;" the question of voluntariness remains. See People v. Leonard, 59 AD2d 1 (2d Dep't 1977) (citing Miranda v. Arizona, 384 U.S. 436, 476 (1966)). Here, the People did not meet their burden of establishing the voluntariness of the statement beyond a reasonable doubt. The People did not establish that the statement was given without threats or coercion. See People v. Wilson, 259 [*3]AD2d 508 (2d Dep't 1999); People v. Sakadinsky, 239 AD2d 443 (2d Dep't 1997). While Officer Rubin could have testified to the circumstances surrounding the statement had he been present in the room or at least able to hear the conversation, that did not occur here. See People v. Holloway, 16 AD3d 1062 (4th Dep't 2005) (partner of officer could testify to defendant's statement as he was in partner's presence when statement was made). In general, the People do not need to produce every officer who came in contact with a defendant before a statement is elicited. See People v. Witherspoon, 66 NY2d 973 (1985). However, the People must produce some evidence, generally testimony from the officer who elicited the statement, in order to meet their burden. See Witherspoon, 66 NY2d at 974 ("People could meet their burden through the testimony of the officer who elicited the confession"); People v. Caballero, 23 AD3d 1031 (4th Dep't 2005) (same); People v. Wilson, 143 AD2d 786 (2d Dep't 1988) (testimony of detective who elicited the statement sufficient for People to meet their burden); People v. Lofrese, 15 Misc 3d 134, 2007 WL 1039092 (NY Sup. App. Term 2007) (People failed to meet their burden of proving statement's voluntariness by not presenting testimony of trooper who questioned the defendant; statement should have been suppressed but error found to be harmless). The court finds that under the totality of the circumstances, the People did not meet their burden at the hearing of establishing that the statement to Detective McCormick was voluntary. Therefore, the defendant's motion to suppress is granted to the extent that the People may not introduce evidence of the second statement. In addition, because the People have failed to establish voluntariness, should the defendant testify, the People will not be permitted to use the statement for impeachment purposes.

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

E N T E R,

______________________

James P. Sullivan, J.S.C.