People v Owens

[*1] People v Owens 2007 NY Slip Op 51913(U) [17 Misc 3d 1110(A)] Decided on July 24, 2007 Supreme Court, New York County Bartley, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2007
Supreme Court, New York County

People of the State of New York,

against

Michael Owens, Defendant.



06189/06

A. Kirke Bartley, J.

The defendant is charged with one count of Robbery in the First Degree and related charges. He moves to suppress statements made to police officers, a videotaped statement made to an Assistant District Attorney, and physical evidence recovered from him.

At a combined Huntley/Dunaway/Mapp hearing held on May 18, 2007, Police Officer Manuel Encarnacion and Detective Joseph Sanatora testified for the People; the defendant presented no witnesses. Both sides thereafter submitted memoranda of law in support of their positions. Based on the evidence and submissions by both parties, the court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

On November 11, 2006, Police Officer Manuel Encarnacion and his partner were on patrol assigned to the 25th Precinct. The officers were in uniform and were parked in a marked RMP on 125th Street between First and Second Avenues in New York County. At approximately 8:35 p.m., Officer Encarnacion saw a man run past his vehicle. He and his partner looked at one another and exited the vehicle. When Officer Encarnacion looked in the direction the individual had been coming from, he saw the defendant next to a livery cab. The defendant appeared to turn and lean as if he was about to run when he noticed the uniformed officers, threw up his hands and said "I didn't do anything."

At that moment the officer saw that complainant, who was behind the defendant, pointing at the defendant, saying "they robbed me." The defendant and the complainant walked towards the police vehicle. The complainant was yelling that they had robbed him and the defendant responded that he did not. The complainant then pulled down his collar displaying a long scratch on his neck and said, "you grabbed me by the neck." The officers handcuffed the defendant. The complainant told the officers that the defendant had been seated behind him in the taxi and had grabbed him by the neck while the other man displayed a gun, went into his pocket and took his cash. The defendant told the officers that the complainant had threatened him with a stick. The officers never saw a stick in the complainant's hands nor recovered a stick from the scene.

Officer Encarnacion's testimony demonstrated that his memory of what transpired after the defendant was arrested was at the very least somewhat unclear. In the RMP on the way to the 25th precinct, the defendant made statements to Officer Encarnacion. The officer was [*2]not consistent regarding whether the defendant's statements in the vehicle were in response to questions. Initially, his direct testimony was very clear that in the vehicle, prior to the defendant stating "it wasn't him. That he was sleeping in the back. That he didn't have anything to do with the robbery," the Officer asked him "[i]f he knew the other person" (T.p.12). Despite the clarity with which he testified about that exchange on direct examination, Officer Encarnacion contradicted his direct testimony when he stated on re-direct that he did not ask defendant any questions before the defendant "was basically in the back saying he didn't do anything. He was just there. He was just sleeping in the back. He didn't do anything" (T.p. 67). The officer conceded that he did not read the defendant Miranda warnings prior to questioning him in the vehicle, nor did he remember what words he used to question defendant about the other person.

The defendant was taken to the 25th precinct. While Officer Encarnacion was filling out the defendant's pedigree information at the front desk, the defendant was engaged in a conversation with the desk sergeant. Officer Encarnacion testified that "he was busy telling our sergeant that he didn't do anything. That he was sleeping in the back. He was talking with our sergeant" (T.p. 12). The officer stated that the defendant mentioned at the desk that he didn't know the other guy and just got into the cab with him (T.p. 69). Officer Encarnacion testified that the sergeant was not asking the defendant questions prior to his making the statements, and the only specific comment he remembered the sergeant saying was something to the effect of "if you're not guilty don't worry about it" (T.p. 69). Other than that, the officer stated that he generally remembered that the sergeant was responding to the defendant, but did not remember the words used by the sergeant or what the sergeant stated in response to the defendant's words (T.p.70).

Officer Encarnacion took the defendant up to the detective squad interview room on the second floor of the 25th precinct for the defendant to be debriefed by a detective. The officer could not remember the time he brought the defendant to be debriefed, conceding he had no idea when he brought the defendant to the interview room, and that it could have been any time between 9:00 p.m. and 1:00 a.m. The defendant and Officer Encarnacion were together in the room when Detective Sanatora and Police Officer Orange came into the interview room.

Officer Encarnacion testified that he did not remember everything that happened in the interview room, but when asked to summarize what happened, repeated what appeared to be his fallback response at the hearing, that the defendant stated "[b]asically the defendant was denying doing anything. He was saying it wasn't him. He was still sleeping" (T.p.15). Officer Encarnacion's characterization of the defendant actually discussing the robbery (and his lack of participation thereof) inside of the interview room to Detective Sanatora was in stark contrast to Detective Sanatora's description of defendant's complete and immediate unwillingness to speak in the interview room.

Detective Sanatora was assigned to interview the defendant and attempt to identify the second perpetrator. Appearing to have a very clear memory of what occurred, the [*3]Detective testified that when he entered the room, he sat at the table with defendant's rap sheet in front of him and asked the defendant if he wanted water and then asked defendant his name, to which the defendant replied "you already know my name, you know all about me, pointing to the paper on the table. And he said, I'm not something to the effect, I'm not telling you anything." (T.p. 74). Detective Sanatora stated he never had the opportunity to read the defendant Miranda warnings because "at that point the interview was over. I left the room" (T.p. 75). Detective Sanatora testified that he was in the interview room less than five minutes.

In contrast to that testimony, in response to the question whether he remembers if Detective Sanatora or Officer Orange were asking the defendant questions, Officer Encarnacion testified "I think she tried to, but he kept saying it wasn't him. He didn't do anything" (T.p.15). It should be noted that Detective Sanatora's references to Officer Orange indicated that Officer Orange's gender is male. The court therefore has no idea who Officer Encarnacion was referring to as engaging in that interrogation of the defendant. Notably, Officer Encarnacion did not testify about the defendant's refusal to speak. The court can only conclude from that omission that Officer Encarnacion did not remember, and hence that he did not grasp the significance of the defendant's refusal. The two issues about which both witnesses were consistent was that no one read the defendant Miranda warnings, and Detective Sanatora and Officer Orange could not have been in the interview room with the defendant for more than a few minutes.

Officer Encarnacion stated that afterwards he took the defendant downstairs for processing. He testified that the defendant was then placed in the precinct cell while Officer Encarnacion completed the arrest paperwork. After Officer Encarnacion refreshed his recollection with his memo book, he testified that he went home some time after 1:40 a.m. He was not with the defendant the whole time while the defendant was in the precinct cell.

The following day Officer Encarnacion spoke to ADA Gallo who indicated she wanted to speak with the defendant. He testified that he told the defendant the ADA wanted to speak with him, and that the defendant responded he would speak to the ADA, and described him as "jubilant" and curious about why the ADA wished to speak with him. Officer Encarnacion and the defendant arrived at 100 Centre Street at approximately 11:00 a.m.

The People introduced a videotaped statement of the defendant into evidence. In that statement, the defendant is interviewed by ADA Gallo, with Officer Encarnacion present in the room. The videotape includes the defendant making repeated references to a previous interrogation at the precinct. Those references begin after ADA Gallo read Miranda warnings to the defendant. She subsequently asked the defendant if he heard those same warnings previously at the precinct, to which the defendant indicated that he did not. She asked if detectives asked the defendant what happened back at the precinct, to which the defendant responded yes. She repeated, "you spoke to a police officer at the [*4]precinct - detectives?" And defendant responded, "yeah, two." She asked, "they interviewed you about what happened?" he responded "yeah" and then she asked again "did they read you the same rights?" To which the defendant responded "No, I don't remember - I don't recall that they did " and then looks to Officer Encarnacion for apparent affirmation, who presumably was there and who does not contradict him. The ADA persists and asks "is it possible that they did and you just don't remember?" to which the defendant responds "I doubt it."

The exchange that follows is particularly significant:

Q: And did you speak with them?

A: Yeah, I was sitting there, it was two of them and we were sitting down. And as I was explaining, one officer kept telling me "you're lying, look at your record." I said "I know my record. I was doing good now" you know, I know. Alright, he was telling me "I had to be [inaud] to just get in the cab." But I'm drinking, I get a free ride.

The defendant makes several other references to prior questioning. For instance, when the defendant was trying to describe the other person he stated "even the officers were asking me does he have hair? Did he ...I was like I wasn't really paying no attention to him." A few moments later he said "the officers asked did he have a black sweatshirt or a black hoodie. I was like [inaud] probably, but I didn't pay any attention to him." In response to the ADA's question "how many people hang out there" the defendant responded "oh, it was . . . they asked me that yesterday. I said it was about ten, twelve, it was probably like ten." He also mentioned "last night I was trying to remember the street" where the park was located, and also "this was all I was saying from yesterday. I was saying as long as you have a videotape."

When asked about a number of the references the defendant made to prior questioning, Officer Encarnacion testified that he either was not present for or did not remember the defendant being asked the number of people he had been hanging out with earlier that day. While the officer appeared to have a vague memory of the defendant being confronted with the fact that he had committed robberies in the past, he did not recall how the defendant's prior record was brought up or what defendant's response was (T.pp. 59-60). While Officer Encarnacion apparently remembered defendant being asked in the interview room whether he knows what he's there for and defendant responding "I didn't do anything," (T.p. 61) Detective Sanatora's description of the interaction in the interview room did not include that question and answer. According to Detective Sanatora, because the defendant immediately expressed his desire not to speak with the officers, the detective did not have the opportunity to speak to the defendant about his criminal history other than it being on the table. He did not ask the defendant questions about who he had been with before the incident, and had no opportunity to ask defendant about who the other person inside the taxi was. Nor did the detective ever tell the defendant he was lying about anything or ask the defendant anything about a videotape. [*5]The detective had no other contact with the defendant after he left the interview room.

After the videotaped statement, Officer Encarnacion recovered the defendant's hat at the request of ADA Gallo and vouchered it as arrest evidence.

CONCLUSIONS OF LAW

Huntley HearingStatements to police officers

Defendant's initial statements on the street were not the product of custodial interrogation. Before an individual can be subjected to custodial interrogation, he must be advised of his right to remain silent and other rights under Miranda v Arizona, 384 US 436. Miranda warning are not required, however, if a suspect is not being subjected to custodial interrogation (see People v. Cruz, 90 NY2d 961; People v. Goodings, 300 AD2d 50). The defendant made a number of statements on the street prior to his arrest that were not elicited by any questions or comments by either officer. Indeed, there was no testimony that the defendant was asked any questions prior to his arrest. Moreover, the defendant not only failed to argue for suppression of the statements made by the defendant on the street, but, by arguing that the arrest of the defendant was premature, effectively conceded that any questioning prior to the defendant's arrest would have been appropriate investigatory questioning which would not have required the administration of Miranda warnings (see People v. Morales, 65 NY2d 997; People v. Nesby, 161 AD2d 246, 247). The statements on the street are therefore admissible.

A different analysis emerges with regard to the statements the defendant made in the vehicle and at the precinct front desk. Once the defendant was handcuffed and placed in the police vehicle, he was in custody (see People v. Evans, 294 AD2d 918; People v. Rifkin, 289 AD2d 262). Thereafter, any questions posed to him about the incident should have been preceded by Miranda warnings (see People v. English, 73 NY2d 20; People v. Ramos, 27 AD3d 1073). While the People argue that the majority of those statements were spontaneous, they bear the burden of proof on this issue (see People v. Stoesser, 53 NY2d 648; People v. Lombardi, 97 AD2d 278).

First, with regard to the statements the defendant made in the vehicle, the People concede that Officer Encarnacion unlawfully questioned the defendant about the identity of the perpetrator without having first administered Miranda warnings. Their position, however, is that only defendant's statement that he did not know the perpetrator should be suppressed as the product of custodial interrogation. In apparent reliance upon Officer Encarnacion's re-direct testimony that the defendant was making statements prior to any questions posed by the officer, the People contend that the defendant's statements that he was sleeping and not involved in the robbery were spontaneous. However, Officer Encarnacion initially, and clearly, testified that he asked the defendant if he knew the other person prior to the defendant stating that he was sleeping in the back and had nothing to do with the robbery. As the officer provided no satisfactory explanation for his contradictory testimony, the court has no rational reason to credit the officer's second [*6]version over the first. Indeed, Officer Encarnacion's later contradictory testimony only served to highlight that the officer generally appeared to have an unclear memory about what occurred during the defendant's many hours in custody. Under similar circumstances, where a detective's testimony was "equivocal and inconsistent" with respect to a key issue, the Second Department found that the detective's "hearing testimony failed to satisfactorily reconcile his conflicting statements so as to provide a logical foundation [] to credit one particular [version] over another" (People v. Anderson, 178 AD2d 605, 607). Because Officer Encarnacion's direct testimony was that the defendant's statements were preceded by the Officer's question and no satisfactory explanation was provided for his inconsistency on the subject, the People failed to meet their burden that the defendant's statements in the vehicle were spontaneous and not the product of custodial interrogation.

Likewise, the People failed to prove that the defendant's statements to the desk sergeant were spontaneous and not the product of interrogation or its functional equivalent. That a statement is "volunteered or not made in direct response to questioning [] does not render it spontaneous" (People v. Grimaldi, 52 NY2d 611; see also People v. Lucas, 53 NY2d 678, 680; Stoesser, 53 NY2d at 650). A genuinely spontaneous statement cannot be "the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed" (People v. Maerling, 46 NY2d 289, 302-303). Any actions or words that are not in the form of a question can therefore constitute interrogation "if they are reasonably likely to elicit an incriminating response" (Rhode Island v. Innis, 446 US 291, 301; see also People v. Ferro, 63 NY2d 316, 321).[FN1]

Officer Encarnacion described that the defendant was talking with the sergeant at the front desk and described the sergeant as responding to the defendant. While Officer Encarnacion categorized the sergeant's participation in the conversation as responsive and not direct questioning, he could not remember what the sergeant actually said responding to the defendant, other than one of the sergeant's comments. The officer did describe a conversation taking place between the defendant and the sergeant, in that he stated the defendant was "talking with our sergeant," without being able to recall the content of the sergeant's words. His testimony on the subject leaves the court with a sparse record from which to ascertain whether the defendant's statements at the front desk were truly spontaneous or, instead, whether they were induced, however subtly, by the sergeant's words or actions. A statement is not considered spontaneous if it is "the product of an extended discussion' between defendant and the police officer" (People v. Lucas, 53 NY2d 678, 680). Because the officer could not recall most of what the sergeant said to the defendant, and the sergeant was not called to testify, the court cannot determine whether such an extended discussion occurred which would render the statements non-[*7]spontaneous.

While the People are not required to call all police officers who had contact with the defendant in order to satisfy their burden of proof (People v. Witherspoon, 66 NY2d 973), here, Officer Encarnacion established a bona fide factual predicate that the desk sergeant possesses material evidence on the question of whether the defendant's statements were the product of the functional equivalent of interrogation (id.). The desk sergeant's testimony would have been particularly significant in this case, where the one witness who offered testimony on this subject either could not remember or not hear the content of the sergeant's part of his conversation with the defendant. Without more information about what the sergeant was saying to the defendant, the People are unable to meet their burden of proving that the sergeant's words and actions were not the functional equivalent of interrogation. Hence, the People failed to prove that the defendant's statements at the front desk were spontaneous.

The statements in the vehicle and at the front desk are therefore suppressed.

Videotaped statement

Although ADA Gallo properly advised the defendant of his Miranda rights and there was no evidence that the videotaped statement was the product of express coercion, the admissibility of the videotaped statement depends on whether the statement resulted from a violation of the defendant's Constitutional right to remain silent. "[T]he People bear a heavy burden of showing that a defendant waived" his right to remain silent (People v. Jenkins, 85 AD2d 265). Moreover, the court is under an obligation "to indulge every reasonable presumption against waiver' of fundamental constitutional rights" (People v. Warren, 97 AD2d 486, 488).

When a suspect in custody "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease" (Miranda v. Arizona, 384 US 436, 473-474 [1966]). When a suspect exercises this right, "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning' was scrupulously honored'" (Michigan v. Mosley, 423 US 96, 104 [1975]). This means that the suspect "may not within a short period thereafter and without a fresh set of warnings be importuned to speak about the same suspected crime" (People v. Ferro, 63 NY2d 316, 322 [1984]).

It is clear that "I'm not telling you anything" was an express and unequivocal invocation of the defendant's right to remain silent inside the interview room of the 25th precinct detective squad. Indeed, Detective Sanatora properly treated it as such when he immediately ended the interview and left the room.

The People correctly concede that the defendant's refusal to speak was an unequivocal invocation of his right to remain silent. They argue, however, that the defendant's right to remain silent was "scrupulously honored" by the decision to cease questioning by Detective Sanatora and a break of at least ten hours between the [*8]defendant's invocation and the videotaped statement. The prosecution's contention is that the lengthy interval coupled with Miranda warnings at the outset of videotaped statement established a knowing and voluntary waiver of the defendant's right to remain silent. While those factors may be sufficient under certain circumstances (see, e.g., People v. Gary, 31 NY2d 68 [1972]), they are not so here where there is credible evidence of an interrogation on the subject matter about which the defendant invoked his right to silence, no evidence that he was ever administered Miranda warnings at any time during his many hours at the precinct, and no evidence indicating when, for how long, or by whom the interrogation at the precinct took place.

While the People contend that the description of the defendant as "jubilant" indicated his willingness to speak, the voluntariness of the defendant's statement is not the crux of the analysis in light of the defendant's prior invocation. "A statement may in fact be wholly voluntary and yet inadmissible because the police action after the suspect cut off questioning did not comply with required procedures" (Ferro, 63 NY2d at 322, n.3; see also People v. Grant, 45 NY2d 366; Mosley, 423 US 96, supra). Hence, while the defendant waived his right to remain silent in the videotaped statement, the statement's admissibility "does not depend solely on the voluntariness of the waiver in traditional terms' (citations omitted). The court must first determine whether the police complied with the second level procedures established in Miranda, by scrupulously honoring' the defendant's right to cut off questioning'" (Grant, 45 NY at 374).

The First Circuit explained,

Based on the assumption that repeated rounds of questioning' in the face of a decision to remain silent nearly always will undermine a suspect's will, [] a Fifth amendment violation is presumed unless the law enforcement officials have followed specified procedures. [] Thus, under Miranda and Mosley, a court need determine specifically whether there has been a valid waiver only after the government has carried its burden of showing that it complied with the required procedures.

(United States v. Barone, 968 F2d 1378, 1983-1984).

In order to determine whether the required procedures were followed, the Mosley court identified four factors courts must consider in determining whether law enforcement "scrupulously honored" a suspect's right to remain silent (423 US at 104-105). These factors are "the time that elapsed between interrogations, whether fresh warnings were provided, the scope of the second interrogation, and the intensity with which the officers pursued questioning after the suspect asserted his right to silence" (Barone, 968 F2d at 1384; Mosley, 423 US at 104-105).

The factors which rendered the defendant's confession admissible in Mosley are notably absent from this record. Here, there is no evidence regarding how long any interrogation lasted, whether there were numerous attempts to importune the defendant to change his mind to speak, or how long a break, if any, there was between the invocation [*9]and any subsequent interrogation. What is clear is that no Miranda warnings were ever administered during any interrogation at the precinct. Whatever interrogation occurred was about the robbery - the exact subject matter about which the defendant had invoked his right to silence. And the only evidence available about that interrogation - which came from the defendant's references on the videotape - indicated that there were two officers, that the defendant was accused of lying, and that he was questioned about detailed aspects of what occurred the day of the robbery (e.g. how many people were hanging out in the park prior to the defendant leaving with the unapprehended man). The People therefore failed to prove that any of the proper procedures under Mosley were followed after the defendant's invocation.

The government's two contentions - that there is no credible evidence that an interrogation occurred at the precinct, and that even if one credits the defendant's references to prior questioning, there is no evidence that such an interrogation was subsequent to the defendant's invocation - are both unavailing in light of the People's burden of proof at the hearing.

First, the court finds that the defendant's statements on the videotape in which he references being previously questioned about the incident are inherently reliable. In addition to the credible quality of the actual references themselves, the court can conceive of no reason for the defendant to have lied about the subject of a prior interrogation at the time he made the videotaped statement. As defendant points out, it is implausible that the defendant would have made up such statements for the purpose of providing a basis for suppression in the future. Not only is it unlikely that his knowledge of the law was so advanced that he would have recognized the significance of making references to prior interrogation. If the defendant had contemplated future suppression at all, he simply would have refused to make the videotaped statement.

His references on the videotape are also arguably more reliable than his live testimony at the hearing would have been, because they invite no claim that his statements were tailored to meet the exigencies of the hearing. That he made those statements in the presence of the arresting officer, who was likely present for such questioning, invests his references with even more credibility. The defendant even turned to Officer Encarnacion at one point for apparent confirmation that no Miranda warnings were ever read to him, which the officer did not contradict. That also supports a finding that the references to prior questioning are reliable because it is unlikely that the defendant would risk being contradicted (which he notably was not) by the one person who presumably could contradict him.

Second, on this record, there is no information from which to ascertain when the prior interrogation referenced by the defendant took place. The People contend that the fact that the detective ceased questioning established that once the defendant invoked his right to silence, the defendant's invocation was "scrupulously honored." However, "an earlier respect of a suspect's right to remain silent does not alleviate the effect of a [*10]subsequent violation of that right" (Campaneria v. Reid, 891 F2d 1014, 1021; see also Anderson v. Smith, 751 F2d 96, 102-103 ["Scrupulously honoring a suspect's rights for a few hours does not lessen the impact of subsequent coercive questioning. The police must honor the suspect's rights at all times"]).

The prosecution maintains that because the defendant's references to prior questioning do not indicate when they occurred, there is no evidence that he was interrogated after the invocation. However, the defendant credibly refers to a prior interrogation about which neither prosecution witness testified. Neither hearing witness could even supply an approximate time of the defendant's interaction with Sanatora (and his invocation) other than providing a four hour window. The People cannot provide an incomplete record on the key issues of the time of the invocation and the police interrogation, and then argue that there is no evidence that the interrogation occurred after the invocation. That the court is left to speculate when both the invocation and the police interrogation took place results from an insufficiency of proof. It is the People, upon whom the burden lies, who are ultimately disadvantaged by this incomplete record. They can not satisfy the burden without providing reliably accurate evidence tending to prove that no interrogation occurred after the defendant's invocation. As both prosecution witnesses could only provide a four hour interval during which the invocation occurred, and neither testified that they remembered or were present for any interrogation at the precinct, that burden was not met. In any event, based upon the hearing testimony, the most probable time for the interrogation to have occurred would have been after the defendant's invocation, during the many hours that the defendant remained in custody at the precinct.[FN2]

Assuming that the interrogation followed the defendant's invocation, absent from the record is any indication about how long a break, if any, there was between the invocation and the interrogation, or how long a break, if any, there was between the interrogation and the subsequent videotaped statement. Even if the videotaped statement took place hours after the unlawful interrogation ceased, that break would not necessarily purge the taint of a failure to scrupulously honor the defendant's invocation. In People v. Kollar, the First Department held that the detective failed to scrupulously honor the defendant's right to silence by deliberately engaging the defendant in conversation for the express purpose of changing the defendant's mind about his unwillingness to speak (305 [*11]AD2d 295, 298). The court not only suppressed the written statement that arose from that unlawful conversation, but also the subsequent videotaped statement because it was not attenuated from the initial unconstitutional taint. Significant were the fact that the ADA who took the videotaped statement referred to and held a copy of the written statement in her hand, and the detective who engaged in the previous unlawful questioning remained at the defendant's side throughout the ADA's questioning (id. at 299). Likewise, in this case, the ADA expressly asked the defendant about the prior interrogation and, as a result, the defendant repeatedly referenced that questioning. Moreover, Officer Encarnacion, who testified he was with the defendant most of the previous night (although he did not provide a reliably accurate account of what occurred at the precinct) and who defendant even turned to on the video for confirmation that he had not previously received Miranda warnings, was the only other person present during the videotaped interrogation.

Similarly, in Westover v. United States, 384 US 436, a companion case to Miranda, subsequent warnings failed to purge the taint of several hours of unwarned interrogation. The Supreme Court found that belated warnings given by federal authorities were not sufficient to protect Westover's Fifth Amendment rights because "the warnings came at the end of the interrogation process" (384 US at 496-497). The Supreme Court in Mosley emphasized that "[t]he cardinal fact of Westover" was "the failure of the police to give any warnings whatever to the person in their custody before embarking on an intense and prolonged interrogation of him" (423 US at 107).

Likewise, no Miranda warnings were ever administered to the defendant at the precinct and there is credible evidence that there was a combative and detailed interrogation by two officers. Without any indication of when and for how long that interrogation took place, the court cannot find that the police scrupulously honored his invocation, or that the subsequent waiver was not tainted by the Fifth Amendment violation. Under similar circumstances, the Second Department found a subsequent Mirandized statement inadmissible where the prosecution failed to prove that the procedures in place to honor a suspects invocation were adequately followed (People v. Pugh, 70 AD2d 664). Like in Pugh, "here there is no evidence that the detectives suspended questioning for any length of time or that they readvised defendant of his Miranda warnings" (id. at 666).

In this case, where the record fails to indicate when the prior interrogation took place and for how long the defendant was questioned, even under the Chapple line of cases relating to Miranda violations, it is impossible for the court to determine whether there was a "pronounced break" in the interrogation so that "the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning" (People v. Chapple, 38 NY2d 112, 115 [1975]; see also People v. Bethea, 67 NY2d 364 [1986]). Under similar circumstances, where the record failed to establish when such unwarned questioning occurred, the Second Department held that "[i]nsofar as the detective's testimony discloses, the interrogation could have occurred minutes before [*12]the warnings were finally administered or hours prior to their issuance. As a consequence, and even crediting the assertion that only 30 minutes of questioning occurred during the entire eight-hour period, it is impossible to conclude that the requisite pronounced break' in questioning occurred before the defendant's inculpatory statements were made" (Anderson, 178 AD2d at 607). Likewise, here, without any testimony regarding when the police interrogation occurred, the People have not proven that there was a sufficient "pronounced break" between any police interrogation and the subsequent videotaped interrogation.

Even if the unlawful interrogation was not prolonged, or if there was a break of many hours between the precinct interrogation and the videotaped statement, the defendant's lengthy incarceration prior to the videotaped statement could have had a coercive affect on the defendant's ultimate decision to waive his Fifth Amendment rights. "The length of time that a suspect remains in custody before the police reinitiate questions can cut both ways under Mosley. On one hand, if the police recommence interrogation too soon after the suspect invokes the right to silence, it may suggest that the police attempted to badger the suspect out of his silence. [] On the other hand, if the police detain a suspect for too long prior to questioning, a court may concluded that the police utilized the coercive effect of incarceration to convince a suspect to speak" (US v. Reid, 211 FSupp2d 366, n.7). Hence, based on the sparse hearing record, the court cannot ascertain whether the defendant's agreement to speak to the ADA was borne out of a desire to end his lengthy incarceration at the precinct or out of a true desire to waive his fifth amendment rights (see Reid, supra; Barone, 968 F2d at 1385-86).

Given the defendant's uninterrupted custodial status, the People failed to prove that the defendant's Fifth Amendment rights were scrupulously honored, or that there was any break that would sufficiently purge the taint of the prior violation.

The motion to suppress the videotaped statement is therefore granted.

Mapp/Dunaway Hearing

On a motion to suppress physical evidence and testimonial fruits, the People have the burden of going forward to show the legality of police conduct in the first instance. Once they have made this showing, the defendant bears the ultimate burden of proving that the conduct was illegal (People v Berrios, 28 NY2d 361, 367 [1971]).

In determining whether the People have satisfied their burden, the analysis focuses on "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place" (Terry v Ohio, 392 US 1, 20 [1968]).

Here, the officers' suspicions were aroused when they initially saw a man running past their police vehicle. When they looked in the direction from which he came, they saw the defendant appearing as if he was about to run, and then stopping upon seeing the officers and throwing his hands up and saying "I didn't do anything." Immediately the complainant, a taxi driver, pointed at the defendant and states "they robbed me." While [*13]the defendant denied it, the complainant showed a scratch on his neck where he said the defendant grabbed him around the neck. Several factors existed during those first moments on the scene to raise the officers' level of suspicion to establish probable cause to arrest the defendant for robbery. Primarily, the complainant, a known civilian informant, identified the defendant as robbing him with another person. Defendant's protestations to the contrary notwithstanding, the complainant's claims were corroborated both by the fact that the police had seen another individual running from the scene who was presumably the other person involved in the robbery (since the complainant said "they"), and the complainant showed a scratch on his neck that was consistent with his description of the defendant's actions during the alleged robbery. That the officers saw the defendant appear as if about to run until he saw the officers, only heightened their suspicion that he was a perpetrator about to flee the scene of a crime. The police therefore had probable cause to arrest the defendant.

The defendant's motion to suppress the hat is therefore denied.

Conclusion

The motion to suppress statements made to police officers in the police vehicle and the precinct front desk, and to the ADA in the videotaped statement, is granted. The motion to suppress physical evidence is denied.

This constitutes the decision and order of the court.

DATED:July 24, 2007

New York, NY____________________________

JUSTICE, SUPREME COURT Footnotes

Footnote 1:The Innis Court defined "incriminating response" as "any response whether inculpatory or exculpatory that the prosecution may seek to introduce at trial" (446 US at 301, n.5).

Footnote 2:While it was not evidence at the hearing, it is noted that the People's Voluntary Disclosure Form notified the defendant of an additional statement under the discovery heading that the defendant made a substantive statement about the incident to Detective Sanatora and Officer Encarnacion at the 25th precinct at 9:15 p.m. on November 11, 2006. While neither officer testified about this statement, the timing of the notice indicates that Detective Sanatora's initial contact with the defendant (and presumably the defendant's almost immediate invocation) took place at the very beginning of the defendant's lengthy incarceration, within one hour of his arrest.