People v Abreu-Nunez

[*1] People v Abreu-Nunez 2012 NY Slip Op 51962(U) Decided on October 18, 2012 Supreme Court, Queens County Knopf, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2012
Supreme Court, Queens County

The People of the State of New York, Plaintiff,

against

Luis Abreu-Nunez, Defendant.



3407/11



The defendant is represented by David Jadidian, Esq. and Robert Goldstein, Esq. The People are represented by Alexander Gilbert of the Queens District Attorney's Office.

Stephen A. Knopf, J.

The defendant, Luis Abreu-Nunez, moves to suppress physical evidence and his statements. He is charged in two (2) indictments as follows: In Indictment No.3407/11, the defendant is charged with the crimes of burglary in the second degree (PL 140.25-2), grand larceny in the fourth degree (PL 155.30-1), petit larceny (PL 155.25) and criminal possession of stolen property in the fifth degree (PL 165.40). In Indictment #3431/11, the defendant is charged with the crimes of burglary in the second degree (PL 140.25-2), grand larceny in the fourth degree (PL 155.30-1)and criminal mischief in the fourth degree (PL 145.00-1). A combined Mapp/Huntley/Dunaway hearing was held before this Court on July 24, 2012 and August 3, 2012. Detective James Murray, Police Officer Christopher Williams and Queens District Attorney Interpreter Juan Carlos Perez testified on behalf of the People. The defendant testified on his own behalf. This Court determines that the People's witnesses gave credible testimony. On the other hand, the testimony of the defendant appeared to be tailored to fabricate suppression issues, leading this Court to find his testimony less than credible.

Accordingly, this Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

On October 19, 2011 Detective James Murray, of the 104th Precinct Detective Squad, a nineteen (19) year veteran of the NYPD and a detective for almost thirteen (13) years, was assigned [*2]to investigate a burglary that took place at 69-35 62nd Avenue, in Middle Village, Queens. Police Officer Christopher Williams, an eight (8) year veteran of the NYPD and also working with the 104th Precinct Detective Squad, was assigned to investigate a burglary that took place a day earlier; at 77-23 66th Road, in Middle Village, Queens. They worked together on these cases.

On October 19, 2011, Det. Murray placed a telephone call to the defendant and speaking in English, asked him to come to the precinct and speak with him. The defendant spoke to him in English. They scheduled an appointment for October 21, 2011, two (2) days later, at 9:00 a.m.. Det. Murray did not recall telling the defendant why he needed to speak to him. Det. Murray did not tell the defendant that he would be coming in to surrender. Det. Murray had been given the defendant's name, address and telephone number by the co-defendant Kevin Concepcion, who had been arrested earlier that day. Co-defendant Concepcion had told the detective that the defendant was with him when he committed the burglaries and that he had driven the defendant Concepcion's minivan during the burglaries.

The defendant insists that Det. Murray told him that he had his friend Kevin and to go to the 104th Pct rather than him come look for him at his place of employment, his job, or his house. The defendant testified that he believed he was going to be arrested because the detective told him he already had his friend Kevin and that he otherwise would go get him at his house or job.

From the time of the telephone call from the detective on October 19, 2011 until the defendant's appearance at the 104th precinct, no law enforcement personnel attempted to contact the defendant. (However, the defendant claims that his neighbor, Marlena, told him someone came to his house looking for him the following day. The defendant states that the detective did not go to his job.)

On October 21, 2011, the defendant testified that he arrived at the precinct at approximately 8:30 a.m.. He agrees that he was not escorted to the precinct. (Det. Murray told this Court that the defendant traveled to the police precinct, by himself, using public transportation. The defendant said he traveled by taxi.) The defendant testified that he waited about twenty (20) minutes for the detective who had not appeared and that he left the precinct to go to a store to buy cigarettes. The defendant further testified that as he exited the precinct, he passed by Det. Murray, actually bumping into him, not knowing who he was at the time. He further testified that he walked to the middle of the block and heard the detective call out to him from the second floor and saw him wave to him, beckoning him to return and that he then did so without getting the cigarettes.

The defendant insists he was escorted up to the detective squad by Det. Murray. The detective did not recall how the [*3]defendant came upstairs. The defendant met with Det. Murray and Officer Williams in an interview room on the second floor of the 104th precinct. They sat at a table. The room had a window, and two (2) doors. Det. Murray and Officer Williams were in plain clothes. Officer Williams recalls that his gun was in his waistband and that the butt of his gun was showing. The defendant recalls that both the detective and the officer had the butts of their guns visible from their waistbands. The detective spoke to the defendant in English and the defendant responded in English. (Det. Murray advised this Court that the defendant did not ask for a Spanish interpreter. The defendant insists that he did, but was told no, that he had to do it in English.) It is not clear if the door remained open or closed. Officer Williams was present for the interview; but left the room at some point. The defendant was not handcuffed or placed in a cell during this interview. He was not told he was under arrest. He was not advised of his Miranda rights at this time. Det. Murray does not recall asking the defendant for identification. Det. Murray does not recall asking the defendant to empty his pockets. According to Det. Murray the defendant was free to leave at this time.

The detective told the defendant that he wanted to speak to him about break-ins. The defendant replied that he was aware that his friend Kevin had been arrested and he knew why. (The defendant testified that he didn't feel that he was free to leave the precinct but he agrees that he was never handcuffed.)

The defendant then related to the detective, in sum and substance, that on October 18, 2011, he and his two friends had been smoking "weed" in Corona, and one of his friends, Kevin Sassone (hereinafter Kevin "SOS") said he needed some money and wanted to go rob some houses. The defendant agreed to go; he said that he didn't want his friend Kevin Concepcion to get into trouble. He went along with them. They got into Kevin Concepcion's minivan and started driving around; the defendant driving the vehicle. Kevin "SOS" was giving him directions and said let's go to Middle Village, "a rich neighborhood". They pulled up to a house, in Middle Village (77-23 66th Road) and Kevin "SOS" told him to stop the car. Kevin Concepcion got out of the minivan, rang the doorbell and nobody answered the door. Kevin "SOS" went around the back of the house; the defendant heard what he thought was a door being kicked in. Kevin "SOS" opened the front door of the house and Kevin Concepcion went in. The defendant told the detective he waited in the minivan the whole time. About ten (10) minutes later Kevin Concepcion and Kevin "SOS" came out of the house with a TV, two (2) laptops and a speaker system. They drove back to Corona and placed the property in Kevin "SOS"'s red Honda. The defendant stated that about an hour and one half (1 ½) later Kevin "SOS" returned and gave Kevin Concepcion $160. [*4]

The defendant then discussed 69-35 62nd Avenue, in Middle Village. He told the detective and police officer that the next day, they returned to the same area and the defendant was once again driving Kevin Concepcion's minivan. Kevin "SOS" was giving directions and told him to stop at a particular house. Kevin Concepcion got out and knocked on the front door. No one answered. Kevin "SOS" then went around the back and shortly thereafter, opened the front door from inside and let Kevin Concepcion inside. The defendant said he waited in the minivan and that he saw a car pull up; then called Kevin Concepcion on his cell phone, telling him "let's get out of here." Shortly thereafter, the two co-defendants exited the residence, carrying two (2) televisions. They put them in the minivan, and drove back to Corona. They put the televisions in Kevin "SOS"'s red Honda. Kevin "SOS" then left with the televisions. The defendant stated that he and Kevin Concepcion ran into Kevin "SOS" two (2) hours later and that Kevin "SOS" gave Kevin Concepcion $100. The defendant stated that he never received any money for either incident but that Kevin "SOS" would smoke "weed" with him for free.

Det. Murray showed the defendant a photograph of each house that had been burglarized. (These photographs were admitted into evidence at this hearing). (People's #1 in evidence was the house located at 69-35 62nd Avenue; People #2 was the house located at 77-23 66th Road). When the detective showed the defendant photograph number #1, the defendant told him that was the house they broke into on Wednesday, the day it was raining. (This was the incident that took place on October 19, 2011). The detective wrote on the first photograph "Wed when it was raining." He also wrote 10/21/11 and 950 hours. The detective showed the defendant a second photograph. (People's #2 in evidence.) The defendant indicated this was the house that was broken into on Tuesday (October 18, 2011); where he heard Kevin "SOS" kicking in the door. The detective wrote on the photograph the date and time, and that this was "the house Kevin kicked in door."

After showing the defendant these two (2)photographs, the detective placed the defendant under arrest telling him that he was being arrested for burglary for each house. The defendant agrees that it was at this time that he was told he was under arrest. He proceeded to read him Miranda warnings from a form. The detective read the defendant his rights in English. The defendant responded "Yes", that he understood each of his rights and that he was willing to speak to him. The defendant placed his initials next to each answer. The detective signed the form. The time was 10:30 a.m. (This form was admitted into evidence at the suppression hearing.) (The defendant claims he was never verbally advised of his Miranda rights; Det. Murray just told him to write "Yes" and sign his initials after each question.) (Det. Murray [*5]told this Court that he, the detective, wrote the word "Yes" after each warning). The defendant denies being advised that he had the right to an attorney; that if he couldn't afford an attorney that one would be provided to him at no expense; that he had the right to remain silent and refuse to answer any question; that anything he said may be used against him in a court of law and that if he did not have attorney available, he had the right to remain silent until he had the opportunity to consult with one.

The detective asked the defendant if he'd like to make a written statement. The defendant said: "Yes". The defendant then wrote out a statement. (The defendant's statement was admitted into evidence at the suppression hearing.) The defendant completed his statement at 11:00 a.m.. The defendant's written statement was in Spanish, which was translated into English at this hearing by the official court interpreter. In sum and substance, the statement as translated into English was as follows: we went for a turn so that Kevin and Kevin "SOS" were going to go into a house to rob things to sell. I drove the van of Kevin when we stopped at a house and Kevin "SOS" went in together with Kevin and they came out with TV and other things. And other things. And later Kevin "SOS" was in charge of selling them... the next day I was driving when...

The defendant admits that he wrote out this statement himself.

At approximately 3:15 p.m., the detective told the defendant that they had received information that there was some stolen property in the defendant's apartment. (The source of this information was the co-defendant Kevin Sasssone.) The defendant responded that there was a speaker system inside of his apartment from one of the houses that they stole from on Tuesday. Det. Murphy then asked the defendant for his consent to search his apartment. This conversation was conducted in English.

Det. Murray then gave the defendant an NYPD consent to search form. This form was pre-printed and was in Spanish. The form permitted the police to search the defendant's apartment. The defendant read the form and signed it. He gave the detective keys to his apartment and for the front door. The detective dated the form and wrote the time on the form. The form was signed at 3:15 p.m.. (After this form was translated into English at this hearing by People's witness Juan Carlos Perez, Spanish interpreter, it was admitted into evidence.)

This consent form allowed the police to enter the defendant's apartment, located at 103-17 52nd Avenue, in Queens to search for articles of contraband. The form advised the defendant that he could refuse to consent, in whole or in part. [*6]The defendant himself admits he read this form before he signed it.

The detective and police officer arrived at the defendant's apartment located in a multi-dwelling single room occupancy ("SRO") house. The front door was open. They entered the defendant's apartment with the key he had given them; the defendant's apartment was a small one room apartment. The detective observed what he believed to be proceeds of the burglary; including a Citizen watch, an external hard drive, a computer screen and a portable DVD player. The detective believed that these items had something to do with the burglaries. The detective removed the items. From outside the house they also recovered a Samsung television, a LG television and a canvas bag containing Halloween candy. Officer Williams explained that the Citizen watch, the external hard drive and one TV that was recovered related to the incident he was assigned to investigate (77-23 66th Road, Queens). At some point Officer Williams showed the external hard drive, the Citizen watch and one of the televisions to his complainant who identified these items as his.

The detective and police officer took these items back to the precinct. They showed these items to the defendant. The defendant told them the Samsung TV was from the first house.(77-23 66th Road was the house that was burglarized on October 18, 2011). The defendant added that the other TV was from the second location (69-35 62nd Avenue) in Queens. This was the LG TV.

The defendant testified that he has been in the United States approximately two and one half (2 ½) years, and was originally from the Dominican Republic. He also testified that he can speak the English language but cannot read it.

Additionally, the defendant stated that he had his interview with the Criminal Justice Agency (CJA) in Spanish. This Court took judicial notice that the official court records, specifically, the copy of the CJA interview sheet, reflects this interview was conducted in English.

It was agreed and stipulated by the parties at this hearing that an intake report of the Queens District Attorney's Office in relevant part based upon information relayed by Det. Murray, contained the notation "detective contacted defendant to come in and surrender himself".

CONCLUSIONS OF LAW

The Supreme Court of the United States recognized, in Miranda v Arizona, 384 US 436 (1966), the potential coercive nature of custodial interrogation. This principle was recently illustrated and re-affirmed in J.D.B. v North Carolina, ____US____, 131 S. Ct. 2394 (2011). The J.D.B. Court held that "...this Court in Miranda adopted a set of prophylactic measures designed to safeguard the constitutional guarantee against self-[*7]incrimination. Prior to questioning, a suspect must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed'." J.D.B at 2401, citing Miranda at 444. These warnings are required only when a suspect is in custody.

If a suspect makes a statement while he or she is in custody, it is incumbent upon the People to show, as a predicate to admissibility on the People's direct case, that the suspect voluntarily, knowingly and intelligently waived these rights. See, JDB, supra; Miranda supra.

The test for determining whether a suspect is in custody remains an objective one. " Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave'." J.D.B. at 2402, citing Thompson v Keohane, 516 U.S. 99, 112 (1995).

Turning to the New York standard, it has long been held that: "In deciding whether a defendant was in custody prior to receiving his warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position." People v Yukl, 25 NY2d 585, 589 (1969). See also, People v Carrier, 248 AD2d 628 (2d Dept. 1998), applying the Yukl test and holding that the issue of whether a suspect is in custody is generally a question of fact.

In determining whether a reasonable person, innocent of any crime would have believed he was in police custody "...the factors to be considered include the amount of time the individual spent with police, whether his freedom of action was significantly restricted, the location of the questioning and atmosphere under which he was questioned, his degree of cooperation, whether he was advised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature...". People v Macklin, 202 AD2d 445, 446 (2d Dept 1994). See also, People v Petrovich, 202 AD2d 523 (2d Dept 1994) and People v Bailey, 140 AD2d 356,358 (2d Dept 1988) as to whether "...a reasonable person, in the defendant's position, innocent of any crime, would have believed he was free to leave the presence of the police."

In determining whether the defendant was actually in custody, this Court first considers the amount of time the defendant spent with the police. The record reflects that while the defendant arrived at the precinct early,(according to his own testimony) he did not begin speaking with Det. Murray and Officer Williams until 9:00 a.m. Within minutes of his arrival, the [*8]defendant began to recount the specific details about the two (2) burglaries. After identifying the houses that had been broken into, the defendant wrote out a statement. This was accomplished by 11:00 a.m. By 3:15 p.m. he signed a consent to search form and handed the detective the key to his apartment. This was all accomplished within several hours of the defendant's arrival at the police station. From the moment the defendant first sat down with police until he was placed under arrest, the time he had spent with the police was less than two (2) hours.

This Court must consider whether the defendant's freedom of action was significantly restricted. The record shows that upon his arrival, the defendant was not handcuffed or placed in a cell. Indeed, he testified that he left the precinct to buy cigarettes - through he returned when the detective hailed him. He was not escorted to the precinct by a police officer, instead, he arrived on his own. Of note, he was not asked to appear at the precinct until two (2) days after the detective telephoned him. There was no urgency in his appearance. When he arrived at the precinct, and than met with the detective and police officer, he was not advised that he was under arrest. He did not ask if he was under arrest. Under these facts and circumstances, the defendant's freedom of action was not restricted in any significant way.

Next, the Court must evaluate the location of the questioning and the atmosphere under which the defendant was questioned. The questioning took place at the 104th Precinct Detective Squad, in an interview room. The testimony of the detective and police officer, as well as the defendant, reflect that the atmosphere in the interview room was non-threatening. The defendant immediately told his story. The record reflects that no threats were made. There is no credible evidence that the detective and police officer raised their voices or banged the table or that there was any yelling whatsoever. While the police officer(and detective according to the defendant) both in plain clothes, were wearing weapons on their waistbands, they were only partially visible and never drawn. Thus, the defendant's statement was not made in a coercive environment.

The next factor this Court must determine is the defendant's degree of cooperation. It is clear from the testimony adduced at this hearing that the defendant was very cooperative; almost immediately relating his story to the police and minimizing his involvement in the crimes. After signing the consent to search form, the defendant even provided police with keys to his residence.

The next consideration is whether the defendant was advised of his constitutional rights. The record reflects that immediately after identifying the photographs of the houses that had been burglarized, the defendant was fully advised of his [*9]Miranda rights. The defendant's assertions to the contrary are simply not credible.

The final factor this Court must consider as to whether the defendant was in custody is whether the questioning of the defendant was investigatory or accusatory in nature. Based on the lengthy response to the detective's initial question, this Court concludes that the defendant's recitation of the events of the burglaries, which was detailed and specific, was initially prompted by a single investigative question of the detective, to wit: that the detective wanted to speak to him about the break-ins.

Thus, under the facts and circumstances surrounding this interrogation, the brief amount of time the defendant was with police, the minimal restriction of his freedom, the non-threatening atmosphere - in spite of the fact that the questioning took place at a police station, the cooperative nature of the defendant, and the less than accusatory manner in which the detective posed his initial question, leads this Court to conclude that the circumstances surrounding the interrogation were not so coercive and overbearing to support a finding by this Court that the defendant was in an custodial environment.

The second part of the analysis this Court must consider in determining if the defendant was in custody is whether the defendant - standing in the shoes of a reasonable man innocent of any crime, would have thought he was not free to leave. See Yukl, supra.

At the outset, this Court notes that the initial contact with the defendant was initiated by telephone call, with an invitation to appear at the precinct two days later. No one accosted the defendant at his work or his home. No law enforcement agent came by to drag him to the precinct. (The defendant's claim that some person came looking for him is not substantiated). The defendant, upon his arrival at the precinct, was not immediately handcuffed, placed under arrest or placed in a cell, but instead according to the defendant advised at the precinct to take a seat because the detective had not yet arrived. In fact, according to the defendant the defendant left the precinct to purchase cigarettes - only returning when hailed by the detective who had just arrived which is strong evidence that the defendant felt that he was free to leave at that time. This Court has taken judicial notice of a DA Intake Form' which related that the detective stated that the defendant was to surrender himself. Despite that notation, this Court determines that there simply is no credible evidence that the detective used these words with the defendant. However, the focus of the Yukl test is not what was in the detective's mind, or even the defendant's - it is what a reasonable person, in the defendant's position, innocent of any crime, would have felt. See, Yukl [*10]supra.

Under the facts and circumstances provided herein, it is clear that a reasonable man, in the position of the defendant, innocent of any crime, would not have had reason to believe that he was not free to leave.

While not controlling authority for this Court, a persuasive case with remarkable similarly to the facts of this case is People v Pena, 23 Misc 3d 1122 (A) (District Court, Nassau County 2009). In that case, the investigative detective called the defendant on the telephone, actually informing him that he was investigating a case involving the defendant and threatening phone calls at which point the detective and the defendant arranged for the defendant to come to the precinct two days later. Two days later, the defendant arrived at the precinct, where he had an interview with the detective in an upstairs office. At that time, the defendant was not given Miranda warnings. During the interview, the defendant was not in handcuffs and had not been told he was going to be arrested. In that interview, the defendant made inculpatory statements. Following this interview, the defendant was placed under arrest and read his Miranda rights. The Court held that: "It cannot be overlooked that the Defendant came into the station house voluntarily to speak with Detective Pollack, without counsel after having been contacted by the detective (2) days earlier, and specifically apprised of what the detective wished to discuss ...When Detective Pollack finally sat down with the Defendant, ...the Defendant was not restrained in any fashion, had not been made any promises and was not threatened or coerced in any way... While the Defendant was again advised of the subject of the investigation, the Defendant's desire to cooperate with the police in order to maintain his facade of innocence, ...does not require that [the court] find him to have been in custody.'" Citing People v Yukl, supra.

This Court has examined the two cases the defendant has offered in support of his claim that he was in custody. Unlike the scenario here, People v Lee, 96 AD3d 1522 (4th Dept. 2012) involved a street encounter and 24 minute detention of the defendant while conducting common-law inquiry based only on the police officer's founded suspicion that criminal activity was afoot. The court held that this seizure escalated into an investigatory detention that required reasonable suspicion that the suspect had committed a crime and that a reasonable person in defendant's position would not have felt free to leave. In People v Tavares-Nunez, 87 AD3d 1171 (2d Dept. 2011), the critical difference here is that the detective actually went to the defendant's house to retrieve him and the court held that under the totality of the circumstances the defendant was in custody at the time he made his inculpatory statements. Here the defendant [*11]came to the police station voluntarily by himself after Det. Murray told him that he wanted to speak to him.

The defendant was not in custody at the time he offered his initial oral statements. As such, Miranda warnings were not required prior to the time Det. Murray advised the defendant that he was being placed under arrest.

After the defendant was arrested, he was advised of his Miranda warnings. They were read to him in English. All of the credible evidence presented at the suppression hearing indicates that the defendant spoke and understood English. The detective then asked the defendant if he wanted to make a written statement; the defendant agreed and wrote out a statement, in Spanish. While the defendant asserts that he was never advised of his Miranda warnings, and only told to initial the Miranda form, this Court finds the defendant's assertion incredible, self-serving and unsupported. Based on the all the evidence adduced at this hearing, this Court finds the defendant's written statement to be admissible as it was made "...following his intelligent, voluntary and knowing waiver of his Miranda rights...". People v Vidal, 44 AD3d 802 (2d Dept. 2007). There is nothing in this record to reflect that the defendant's will was overbourne at any time during questioning so as to render his statements involuntary. See, People v Andujar, 267 AD2d 467 (2d Dept. 1999), citing People v Anderson, 42 NY2d 35,41 (1977).

The defendant claims that his subsequent written statement should be suppressed because it was made after improper pre-Miranda questioning. The defendant claims there was no attenuation that would purge the taint of this prior unlawful questioning. However, as the defendant's initial oral statements were not unlawfully obtained, attenuation is not an issue herein. See, eg People v Chapple, 38 NY2d 112 (1975).

This Court now turns to the determination of the lawfulness of the recovery of the physical property from the defendant's house and yard.

"Governmental intrusion into the privacy of the home is, with limited exceptions, prohibited by constitutional limitations in the absence of a valid search warrant... One of the limited exceptions to the warrant requirement, and indeed, to the requirement of probable cause, is voluntary consent to search...". People v Gonzalez, 39 NY2d 122,127 (1976).

There is a heavy burden on the People to prove the voluntariness of a waiver of constitutional rights and consent to a search. People v Kuhn, 33 NY2d 203 (1973); see also, People v Zimmerman, 101 AD2d 294 (2d Dept. 1984). The question of the voluntariness of a consent to search is a question of fact. "Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official [*12]coercion, actual or implicit, overt or subtle...". Gonzalez at 128. " Where there is coercion there cannot be consent'". Gonzalez at 128, citing Bumper v North Carolina, 391 US 543, 550 (1968).

No one fact or circumstance is determinative of the voluntariness of consent. See, Gonzalez, generally. Here, the defendant was provided with a written consent to search form, in Spanish. The form clearly advised him of his right to refuse to consent, in whole or in part. The defendant read and signed the form. He voluntarily offered the detective keys to the front door of his building and his apartment. There is no evidence in the record to suggest that there were any threats by police coercing the defendant into signing the consent form. The defendant signed the consent to search form freely and voluntarily in a knowing and intelligent manner. See, Gonzalez, supra. The People have established that the defendant consented to the search of his premises. See, Kuhn supra.

Turning to the Dunaway aspect of this suppression hearing, the defendant's initial pre-Miranda statements cannot be viewed as the fruit of an unlawful arrest as this Court has held that the defendant was not in custody at this time and the police clearly had probable cause to arrest the defendant after he identified the houses he had helped burglarize, following his initial oral statements to them. As such, the defendant's statements and consent were not the product of an unlawful arrest. See, Dunaway v New York, 442 US 200 (1979).

For the reasons previously enumerated, the defendant's motion to suppress his statements and physical evidence is denied in all respects.

The foregoing constitutes the order, opinion and decision of this court.

_________________________

STEPHEN A. KNOPF, J.S.C.