People v Simmons

[*1] People v Simmons 2017 NY Slip Op 51392(U) Decided on April 13, 2017 County Court, Monroe County Valleriani, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2017
County Court, Monroe County

The People of the State of New York, Plaintiff,

against

Silvon S. Simmons, Defendant.



2016-0404



For the People:

SANDRA DOORLEY, ESQ.

Monroe County District Attorney

BY: JULIE HAHN, ESQ.

KEVIN FITZGERALD, ESQ.

Assistant District Attorneys

47 S. Fitzhugh Street

Rochester, New York 14614

For the Defendant:

TIMOTHY P. DONAHER, ESQ.

Monroe County Public Defender

BY: ELIZABETH RILEY, ESQ.

KATIE HIGGINS, ESQ.

Assistant Public Defenders

10 N. Fitzhugh Street

Rochester, New York 14614
Sam L. Valleriani, J.

I. Motions to suppress tangible and statement evidence

As a result of defendant's motion to suppress tangible evidence and his alleged statements as set forth in the People's Criminal Procedure Law (CPL) § 710.30 notice, the Court conducted a suppression hearing. The hearing spanned four separate dates — February 2, 2017, February 3, [*2]2017, February 8, 2017, and concluded on April 4, 2017. At the conclusion of the hearing,[FN1] the Court reserved decision in order to review all the evidence, to include defendant's electronically recorded interrogation, which was received at the hearing as People's exhibit 4.[FN2] The Court has reviewed the hearing transcript, to include the testimony elicited during the re-opened portion of the hearing, the admitted exhibits, and the defendant's recorded interrogation, and now makes the following findings of fact and conclusions of law based upon the evidence the Court credits in all meaningful respects.

1. Findings of Fact

In March of 2016, Officer Joseph Ferrigno of the Rochester Police Department (RPD) became aware of a menacing investigation regarding a suspect named Ivory Golden. Officer Ferrigno became aware of this investigation through roll call, internal briefings, the RPD "wanted board," and information obtained from his partner Officer Sam Giancursio. Golden was wanted for allegedly menacing an individual named Shamarra Baxtrom with a handgun. Baxtrom told Officer Giancursio in March of 2016 that Golden was armed with what appeared to be a handgun and that he drives a silver or grey Chevrolet Impala in the vicinity of Jay Street and Child Street in the City of Rochester.

On April 1, 2016, Officer Ferrigno discussed with Officer Giancursio patrolling the area of Jay Street and Child Street in search of the silver or grey Impala that Golden was said to be driving. At approximately 8:10 p.m., Officer Ferrigno was on duty in his patrol car when he received a dispatch call for shots fired and a vehicle fleeing the scene on Immel Street, which is located in the Jay Street and Child Street vicinity. No description of the vehicle was given by the caller. When Officer Ferrigno arrived on scene, other officers were already present, attempting to gather evidence and locate any witnesses that may have observed the shooting. Officer Giancursio, in a separate patrol car, responded to the scene as well. The officers did not observe anyone on foot, nor did they see any vehicles leaving the area near Immel Street.

Upon learning that the other officers on scene had not been able to locate any evidence or witnesses related to the shots fired call, Officers Ferrigno and Giancursio left the scene and [*3]continued their routine patrol for the evening. They proceeded to Lyell Avenue where they made an unrelated traffic stop. After the traffic stop, Officer Giancursio proposed going back to the area of Jay Street and Child Street to look for the Impala that Golden reportedly drives. Officer Giancursio suspected that the shots fired call from earlier that evening may have involved Golden and another individual from that vicinity with whom Golden was feuding.

At approximately 9:00 p.m., Officers Ferrigno and Giancursio, still in separate patrol cars, returned to the area of the shots fired call. They traveled eastbound on Jay Street, with Officer Giancursio's patrol car in the front. Just before the intersection of Jay Street and Child Street, Officer Ferrigno observed a grey colored Impala heading westbound on Jay Street. Officer Ferrigno communicated to Officer Giancursion by police radio that he just observed a grey Impala heading westbound on Jay Street, and both officers U-turned their patrol cars to pursue the grey Impala. Officer Ferrigno's patrol car was now in the lead position as the officers traveled westbound on Jay Street. Officer Ferrigno testified that he observed the Impala accelerate and then make a sharp turn onto Immel Street. He communicated his observations by radio to Officer Giancursio. Officer Ferrigno followed the grey Impala down Immel Street where it came to an abrupt stop and backed into the driveway of 9 Immel Street. Neither officer activated his patrol car lights during the pursuit.

Officer Ferrigno stopped his patrol car in front of the driveway, and radioed to Officer Giancursio that he would be on foot. Officer Ferrigno shined his patrol car spotlight on the grey Impala and observed a driver and front seat passenger in the car. Both occupants appeared to be reaching downward while still seated in the Impala. Officer Ferrigno testified that he observed the interior dome light of the Impala illuminate immediately followed by the front driver's side and passenger's side doors of the Impala being opened. He testified that upon exiting his patrol car his service weapon was drawn because he suspected that Golden may be one of the two occupants of the Impala and armed with a firearm. At that moment, Officer Ferrigno shouted, "Police, stay in the vehicle, don't move!" The driver complied with Officer Ferrigno's order, but the passenger alighted the Impala and ran up the driveway toward the backyard of 9 Immel Street. Officer Ferrigno ran after the fleeing passenger (suspect). Upon pursuing the suspect into the backyard, which had no artificial lighting, the suspect slowed his flight as he tried to cut through a small fence to the adjoining backyard of 5 and 7 Immel Street (a duplex). The fence was positioned between a tree and a shed. Officer Ferrigno was approximately ten feet behind the suspect at that point. The suspect then turned his body toward Officer Ferrigno. Simultaneous with that motion, Officer Ferrigno heard the sound of a gun blast and saw the emission of a muzzle flash. The officer's testimony established that the gun blast and related muzzle flash emanated from the suspect's immediate position.

Officer Ferrigno instinctively sought cover behind a tree in his immediate vicinity. He quickly re-emerged and fired four consecutive shots from his service weapon in the direction of the muzzle flash, before again taking cover behind the same tree. No more shots were fired. Officer Ferrigno turned on the flashlight affixed to his service weapon and saw the suspect on the ground in the backyard of 5 and 7 Immel Street. The suspect stated, "All right. You got me. I'm done." Officer Gianursio, who was running up the driveway during the exchange of gun fire, had finally reached the backyard and asked Officer Ferrigno if he (Officer Ferrigno) was shot. Officer Giancursio quickly checked Officer Ferrigno for any bullet wounds, preliminarily [*4]determined that he had not been shot, and directed Officer Ferrigno to cover him as he approached the suspect. Officer Ferrigno engaged the flashlight attached to his service weapon to illuminate the area, and both officers approached the suspect, still laying on the ground in the backyard. Officer Ferrigno testified that he observed a handgun on the ground near the suspect's feet. Officer Ferrigno stood next to the handgun for officer safety as Officer Giancursio handcuffed the suspect. Officer Ferrigno testified that he observed no other individuals in the backyard prior to the exchange of gunfire. Nor did he observe or hear any other individuals in the back yard after the exchange of gunfire, prior to Officer Giancursio's arrival, which was almost simultaneous to the shots fired exchange. Backup officers started to arrive on scene, one of whom relieved Officer Ferrigno of his position where the handgun was found. Officer Ferrigno had no further contact with the suspect.

Officer Ferrigno's cross-examination testimony revealed that he has been out of work on medical leave since the above shooting because he is "struggling with [Post Traumatic Stress Disorder] from this incident." He further testified on cross-examination that the medical leave is voluntary but through a doctor's order, and that he was placed on medical leave by his superior officers. The prosecutor's follow-up questions yielded that the officer's medical leave was determined by the police department's physician. Before the officer may return to duty as a road patrol officer, he would have to be cleared by the "department doctor" and RPD administration.The People's next witness was RPD Officer Sam Giancursio. Officer Giancursio testified that on March 23, 2016 he went to 18 Kondolf Street in the City of Rochester to investigate the report of an alleged menacing. Upon arriving at the location, Officer Giancursio spoke to a female named Shamarra Baxtrom. Baxtrom reported that one Ivory Golden had been in a dispute with her boyfriend Rashad Johnson, who lives on Cameron Street, just a few blocks north of Baxtrom's house. Baxtrom told Officer Giancursio that during a confrontation between her and Golden, Golden lifted up his shirt revealing a handgun in his waistband and made a threatening comment about Baxtrom's boyfriend Johnson. Baxtrom reported that Golden drives a silver Impala which he regularly drives in and around the neighborhood of Jay Street and Child Street. After speaking to Baxtrom, Officer Giancursio completed a "wanted package" for Golden for menacing Baxtrom with a handgun. This included preparing a crime report and drawing up an accusatory instrument charging Golden with the crime of menacing in the second degree. Once the wanted package was completed, notification that Golden was wanted for menacing Baxtrom with a handgun was disseminated throughout the RPD.

Officer Giancursio's investigation of the alleged menacing continued. On March 27, 2016, he observed Baxtrom exiting her vehicle in the area of Jay Street and Child Street and stopped to talk to her. Baxtrom told Officer Giancursio that she saw Golden's vehicle — a silver Chevrolet Impala — at 18 Kondolf Street. Baxtrom said that she always sees Golden driving between Ames, Child and Jay Streets, but was uncertain where he lived. Based upon this information, Officer Giancursio patrolled the area of Ames Street, Child Street, and Jay Street, as well as various other streets in the same general vicinity. Officer Giancursio was unable to locate Golden on March 27, 2016.

On April 1, 2016, at approximately 8:10 p.m., Officer Giancursio was on duty in a marked patrol car when he received a dispatch call that a citizen called 911 to report gunshots in the area of Jay Street and Immel Street. The caller reported that a vehicle sped off in relation to [*5]the gun shots, but provided no vehicle description. Officer Giancursio responded to the area of Jay Street and Immel Street to investigate the allegation. Fellow officers were already on scene when Officer Giancursio arrived. Officer Giancursio exited his car and surveyed the area for shell casings or other evidence of recent gunshots. He was unable to find any evidence or locate any potential witnesses to the shots fired incident. Officer Giancursio testified that another officer was able to make contact with the civilian 911 caller, but no additional information was obtained. As a result of there being no further information, Officer Giancursio left the area.

Approximately thirty to forty minutes later, Officer Giancursio performed an unrelated traffic stop (the substance of which is discussed above) in the vicinity of 1300 Lyell Avenue. Officer Ferrigno assisted Officer Giancursio on that traffic stop. After the traffic stop was complete, Officer Giancursio had a brief discussion with Officer Ferrigno about the wanted package regarding Golden, as well as the dispute between Golden and Johnson. It was Officer Giancursio's belief that the shots fired on Immel Street and prior menacing charge involving Golden and Baxtron may be related. Officer Giancursio explained to Officer Ferrigno that Batrom had told him that Golden drives a silver Impala, and that she always sees him driving in the area of Jay Street and Child Street. Consequently, Officer Giancursio and Officer Ferrigno drove (in separate patrol cars) back to the Jay Street vicinity in search of the silver Impala.

Officer Giancursio testified that as he was driving eastbound on Jay Street, he observed a silver Impala heading westbound in the opposite direction on Jay Street. He observed two people in the Impala — a driver and front seat passenger. Officer Giancursio and Officer Ferrigno communicated their observation of the Impala to one another via secure channel radio. Officer Giancursio testified that he turned his car around on Jay Street to pursue the silver Impala. Officer Giancursio was now driving behind Officer Ferrigno. Officer Giancursio testified that he observed the weight of the Impala transfer back as it accelerated at a high rate of speed westbound on Jay Street and made sharp right turn on Immel Street. Officer Giancursio changed course from Jay Street to pursue the Impala from another direction, but received a radio transmission from Officer Ferrigno that the Impala was stopped on Immel Street. Officer Giancursio quickly made his way to Immel Street to assist Officer Ferrigno. He testified that as he turned down Immel Street, Officer Ferrigno radioed that the silver Impala was backing into a driveway and the occupants were "bailing." Officer Giancursio testified that at that point he could see Officer Ferrigno's patrol car spotlight shining on the Impala and Officer Ferrigno exiting his patrol car. Officer Giancursio observed both the driver and the passenger exiting the Impala. He stopped his patrol car as he observed Officer Ferrigno pursuing the fleeing passenger up the driveway behind the Impala and toward the backyard of 9 Immel Street. He then observed the driver take flight in the opposite direction.

Officer Giancursio quickly exited his patrol car. As he ran past Officer Ferrigno's patrol car in the direction of the pursuit, he heard the sound of a gunshot and saw the flash of what appeared to be a gun discharging in the backyard where the passenger had fled with Officer Ferrigno pursuing him. Officer Giancursio next observed what appeared to be the faint flash of the strike of a round from behind the Impala in the driveway. Then, as Officer Giancursio ran up the driveway toward the back of 9 Immel Street to assist Officer Ferrigno, he heard another gunshot. Office Giancursio testified that upon hearing the second gun shot, Officer Ferrigno's body was lit up from the muzzle flash of his (Officer Ferrigno's) weapon, which was pointed [*6]outward toward the backyard of 5 and 7 Immel Street. Officer Giancursio testified expressly that he never saw the suspect fire a gun.

As Officer Giancursio finally reached Officer Ferrigno, Officer Ferrigno yells, "I'm hit, I'm hit, shots fired!" Officer Giancursio immediately checked Officer Ferrigno to ascertain whether he had been shot. After concluding that Officer Ferrigno had not been shot, Officer Giancursio directed Officer Ferrigno to cover him so that he could proceed into the backyard of 5 and 7 Immel Street to handcuff the suspect. Officer Giancursio testified that Officer Ferrigno illuminated the area which revealed the suspect laying flat on his face with his hands out away from his body. Officer Giancursio testified that the suspect stated, "I ain't dead. I ain't have no gun." Officer Giancursio handcuffed the suspect, rolled him over and patted him down. Officer Giancursio visually scanned the immediate area and saw a handgun laying three to four feet from the suspect's right foot. Officer Giancursio wanted to create space between the suspect and the handgun, so he put his hands under the suspect's armpits and pushed him away from the handgun. The officer relayed to dispatch what had transpired, and requested an ambulance for the suspect. Officer Giancursio remained with the suspect until he was relieved by another officer.

The People's next witness was Registered Nurse Jodi Alexander. Nurse Alexander testified that on April 4, 2016 she was working as a Registered Nurse at Strong Memorial Hospital (SMH) in the Burn, Trauma and Intensive Care Unit (ICU). Nurse Alexander testified that she has worked in the ICU at SMH for sixteen years. On April 4, 2016, she was the defendant's nurse for the duration of her shift, 7:00 a.m. to 7:30 p.m. The pertinent portions of Nurse Alexander's testimony follows. She testified that the defendant communicated appropriately with her, that he was responsive and alert and in their discussions throughout the day. She explained that the defendant was oriented to both place and time, coherent and awake, and sitting up in his bed. At around noon that day, Nurse Alexander received a phone call from the front desk that there were some police officers that wanted to speak with the defendant. Nurse Alexander went into the defendant's room to apprise him and assess his condition. The defendant was sitting up in his bed, and seemed alert and in no visible distress or discomfort. Having made these observations, the nurse asked the defendant if it was okay to allow the officers to enter his room to speak with him, to which the defendant responded it was. The investigators entered the defendant's room and closed the door. Nurse Alexander was still able to view the defendant and the investigators through a window in the defendant's room. She observed the defendant sitting up in bed during the interview. He continued to appear in no obvious discomfort as he spoke to the investigators. Nurse Alexander testified that she would not have allowed the investigators access to the defendant if she believed he was not in a condition to speak to them. She also testified that the defendant had a patient controlled analgesic pump that he was permitted to self-administer (with pre-programmed limitation) for pain management, and that he received 5 milligrams of Oxycodone from hospital staff that morning at around 11:00 a.m.

The People's next witness was Investigator Galetta. Investigator Galetta testified that on April 4, 2016 he and Investigator Brennan interviewed the defendant at SMH regarding the instant offenses. Upon his arrival at the hospital, Investigator Galetta met with officials from the SMH Public Safety Department, who escorted Investigators Galetta and Brennan to the [*7]defendant's floor. Upon arrival at the ICU, the investigators spoke to an individual at the information desk, who directed them to room 11. Once outside room 11, the investigators spoke to some staff members that were treating the defendant. Investigator Galetta spoke to Nurse Alexander to ask if the defendant was capable of being interviewed, and she indicated that he was. With Nurse Alexander's permission, Investigators Galetta and Brennan entered defendant's room to speak with the defendant. Defendant's room was guarded around the clock by an armed RPD officer.

Investigators Galetta and Brennan identified themselves as members of the RPD and explained to the defendant the reason they were there.[FN3] Investigator Galetta testified that the defendant indicated that he understood the investigators were there to discuss the events surrounding the instant offense. The investigator also testified that the defendant appeared to be in no physical distress, and that he (the defendant) had no issues communicating. A recording of the entirety of defendant's interrogation was admitted at the hearing as People's exhibit 4, the pertinent portions of which follow:

Inv. Galetta: Are you able to talk ok?Defendant: Yeah. Inv. Galetta: Okay.Defendant: Before we do this I need to call my dad and have him send my lawyer up here.Inv. Brennan: Okay. Do you want a lawyer before talking to us?[FN4] That's your right. Defendant: Yeah.Inv. Brennan: I didn't hear you sir.Defendant: Yeah.Inv. Brennan: OkayInv. Galetta: Alright, that's fine.Defendant: Let's see how far this goes.[FN5] Inv. Brennan: Okay. Who is your lawyer?Defendant: That's why I gotta (sic) call my dad.Inv. Brennan: Okay. Alright, you go ahead and...call your dad, we'll wait.Defendant: I can't make any phone calls.Inv. Brennan:You can't?Defendant: Yeah (inaudible)Inv. Galetta: Oh, oh, that's right.Inv. Brennan: Oh, oh, okay.Inv. Galetta: Alright, well, you know what? ...[I]f you...want to discuss that with your dad and your lawyer, we can come back and talk to you another time. But frankly we can't go [*8]any further right now if that's what you wish to do.Defendant: Alright. Let's go ahead.Inv. Galetta: I'm sorry.Defendant: Proceed.Inv. Galetta: You want to go ahead?Defendant: Yeah.

Investigator Galetta then read the defendant his Miranda warnings from his Miranda card, a copy of which was admitted at the hearing as People's exhibit 8. Investigator Galetta's testimony as well as the recorded interview reveal that the defendant was never threatened or promised anything to get him to talk. Investigator Galetta testified that the defendant appeared to be in a bit of discomfort, but was otherwise alert and conversational, and provided intelligent answers to the questions posed. Investigator Galetta ended the interview approximately twenty minutes after it began when the defendant again, following the above exchange, referenced wanting to speak with an attorney.

The People's next witness was RPD Investigator Chris Muscato. Investigator Muscato testified that on April 1, 2016 he became involved in a shots fired investigation on Immel Street, in the City of Rochester. He arrived at the scene approximately two minutes after he heard the shots fired call over the radio. Upon arrival, other officers on scene directed him to the driveway of 9 Immel Street. Investigator Muscato proceeded up the driveway and into the adjoining backyard of 9 Immel Street and 5 and 7 Immel Street. Upon entering the backyard, he observed the suspect lying in a prone position on the ground, handcuffed and bleeding. Investigator Muscato searched the suspect for weapons or contraband, and located his New York State driver's license inside a wallet located in his (the suspect's) back pocket. The investigator's testimony revealed that the name on the license was "Silvon Simmons" and that the suspect matched the person depicted on the license. Investigator Muscato identified the defendant in court as the person he searched that evening. The investigator testified that the defendant stated that he was having trouble breathing and that his legs hurt and he wanted to take off his boots. Investigator Muscato checked the defendant for wounds, and then placed him on his right side in a rescue position, to take pressure off of his heart. The investigator next secured the defendant's airway and maintained that position until the fire department and ambulance arrived approximately two or three minutes later.

When the fire department and ambulance arrived, Investigator Muscato removed the defendant's handcuffs so that ambulance personnel could remove his clothing to locate his wounds. Investigator Muscato subsequently re-secured the defendant in handcuffs, and he (the defendant) was placed on a gurney and transported by ambulance to SMH.

The defense called two witnesses. The first defense witness was the defendant's next door neighbor, Jonathan Henderson. Henderson testified in pertinent part as follows. Henderson lives at 3 Immel Street, and has known the defendant for five or six years. Henderson observed defendant and fellow neighbor, Detron Parker, who lives at 9 Immel Street, pull out of Parker's driveway. They were in Parker's Impala with Parker driving. Henderson observed them drive down Immel Street toward Jay Street. Henderson was standing on his front porch approximately fifteen to twenty minutes later when he observed Parker and the defendant return. Henderson testified that Parker was driving his Impala down Immel street at a normal rate of speed and [*9]backed into his (Parker's) driveway at 9 Immel Street. He heard no screeching of any tires or sirens at that time. Almost immediately after Parker's car stopped after backing into the driveway, Henderson observed a police car traveling at a high rate of speed down Immel Street in the direction of Parker's house. He observed the police vehicle come to an abrupt stop before Parker's driveway, immediately followed by an officer exiting the driver's side door of the police car. The officer's hand was on his firearm removing it from the holster while moving at a "fast long stride" toward the front of Parker's Impala. Henderson's line of sight to the Impala was limited; he testified that he could not see the doors of the Impala from his porch. The pursuing officer was out of Henderson's view after the officer took approximately four steps toward the Impala. Henderson testified that the officer yelled, "Don't run!" followed by the sound of three gunshots and the defendant yelling "Okay, okay, okay!" Henderson was uncertain whether a second police vehicle had arrived at the time he heard the gunshots.

The second witness called by the defense was Legal Nurse Consultant Kelly Layland. Nurse Layland is employed as a Registered Nurse at Highland Hospital as a Sexual Assault Nurse Examiner. Nurse Layland was certified as a legal nurse consultant in 2007. Nurse Layland testified in pertinent part as follows. She reviewed the defendant's medical records pertaining to the injuries he sustained in this incident. She also reviewed the defendant's interrogation. Nurse Layland summarized the defendant's injuries as four puncture wounds from gunshots, a collapsed lung, a rib fracture, a fracture of the acetabulum, and a pseudoanurysm in the right groin. She confirmed that the defendant's medical treatment included surgery, intubation, use of a ventilator, and the infusion of several units of blood. Nurse Layland further confirmed that the defendant's treatment regimen required daily doses of Dilaudid, Versed, Oxycodone and Valium as prescribed. Nurse Layland testified that the treatment and medications received by the defendant can generally cause lethargy, confusion and memory loss. Her testimony established that given the severity of the defendant's injuries, the various medications he was taking to mitigate his pain and discomfort at the time of his interrogation may have impaired his state of mind such that he was unable to knowingly, voluntarily, and intelligently waive his Miranda rights. Nurse Layland's conclusions were based on her education, training and experience, as well as her review of the defendant's medical records. Nurse Layland had no interaction with defendant during the course of his treatment and hospitalization, and she has never met the defendant otherwise.

2. Conclusions of Law

A. Suppression of tangible evidence

Defendant argues that the gun seized pursuant to his arrest should be suppressed as the fruit of an unlawful seizure. The Court disagrees. The seizure of a vehicle is lawful if the police have reasonable suspicion to believe that one of its occupants has committed a crime (see People v Spencer, 84 NY2d 749 [1995]). Here, Officer Ferrigno's action of parking his patrol car in front of the driveway of 9 Immel Street after the grey Impala backed into it constituted a seizure (see People v Cantor, 36 NY2d 106, 111 [1975] ["Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment]). The Court finds that the seizure of the Impala was lawful. The Court finds, based upon the above applicable facts, that Officer Ferrigno had reasonable suspicion to believe that the [*10]driver of the grey Impala, which noticeably accelerated after the officers u-turned their patrol cars to pursue it down Jay Street, was Ivory Golden who was wanted for reportedly menacing another person with a handgun and known to drive a silver or grey Impala in and around the Jay Street area (see generally People v Sobotker, 43 NY2d 559 [1978]).

However, even where law enforcement has reasonable suspicion to believe that the driver of a vehicle has committed a crime, the facts here trigger the more narrow question of whether Officer Ferrigno's reasonable suspicion extends to the fleeing passenger. "[T]he police may pursue a fleeing defendant if they have reasonable suspicion that defendant has committed or is about to commit a crime" (see People v Martinez, 80 NY2d 444, 446 [1992]; see People v Cady, 103 AD3d 1155, 1156 [4th Dept 2013]; People v Riddick, 70 AD3d 1421, 1422 [4th Dept 2010], lv denied 14 NY3d 844 [2010]). "A defendant's flight in response to an approach by the police, combined with specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit" (Cady at 1156 [internal citations and quotation marks omitted]). The proof here fell short of providing reasonable suspicion that criminality was afoot as to the fleeing passenger (see e.g. People v Lopez, 20 Misc 3d 737, 745-747 [Sup Ct, Kings County 2008], affd 67 AD3d 708 [2nd Dept 2009], lv denied 14 NY3d 772 [2010] [and cases cited therein]). Where, as here, Officer Ferrigno had no reported information whatsoever, much less reasonable suspicion to believe, that suspected criminal Golden was the passenger of the grey Impala or, alternatively, that the passenger of the grey Impala, if not Golden, had committed or was committing a crime, the passenger's flight alone, without more, did not generate founded suspicion of criminality, "the necessary predicate for police pursuit" (see Martinez at 1072; People v De Bour, 40 NY2d 210, 216 [1976]). While the Court credits Officer Ferrigno's testimony that he observed the passenger appearing to engage in movements toward his feet before fleeing the Impala, such did not warrant Officer Ferrigno's pursuit, for actions that are "at all times innocuous and readily susceptible of an innocent interpretation...may not generate a founded suspicion of criminality" (Riddick at 1422 [citation and internal quotation marks omitted]; see De Bour at 216).

Be that as it may, the Court rejects defendant's contention that suppression of the weapon seized consequent to the unlawful foot pursuit is warranted. It is well settled that "'a person who is stopped or detained illegally is not immunized from prosecution for crimes committed during his...detention period'" (People v May, 100 AD3d 1411, 1411 [4th Dept 2012], quoting United States v Garcia-Jordan, 860 F2d 159, 160 [1988]; see People v Rogers, 52 NY2d 527, 533-534 [1981], rearg denied 54 NY2d 753 [1981, cert denied 454 US 898 [1981], reh denied 459 US 898 [1982]). Here, the credible hearing evidence established defendant's commission of an intervening illegal act, namely, that he fired a shot from a gun at Officer Ferrigno during the course of the pursuit.[FN6] Inasmuch as defendant's response to Officer Ferrigno's pursuit was "unjustified and criminal in nature...and unrelated to the initial... unlawful action on the part of the police" (May at 1412), suppression of the subsequently recovered handgun is unwarranted [*11](see People v Townes, 41 NY2d 97, 102 [1976] [holding that the defendant's "free and independent action of pulling and attempting to fire the gun...[at] a police officer, serves to render any connection between the lawless conduct of the police and the discovery of the challenged evidence so attenuated as to dissipate the taint] [citations and internal quotation marks omitted]).

Moreover, because the credible hearing evidence established that defendant's intervening illegal act was not "spontaneous and precipitated by the illegality [of Officer Ferrigno's foot pursuit] [but] was a calculated act not provoked by the unlawful police activity and thus attenuated from it" (People v Fox, 124 AD3d 1252, 1252 [4th Dept 2015] [citations and internal quotation marks omitted]), that calculated act provided reasonable suspicion to pursue and seize the defendant in the backyard of 5 and 7 Immel Street. After the police lawfully seized the defendant and recovered a handgun near his right foot, they had probable cause to arrest him. Thus, the fruits of the defendant's arrest, to include the recovered handgun and his pre-arrest statement, are admissible at trial.

B. Suppression of statement evidence

A confession or admission is admissible at trial only if its voluntariness is established beyond a reasonable doubt (see People v Yarter, 41 NY2d 830 [1977]; People v Valerius, 31 NY2d 51 [1972]). Miranda warnings are required when a person is subjected to custodial interrogation (see Miranda v Arizona, 384 US 436 [1966]; People v Berg, 92 NY2d 701 [1999]). Whether a suspect is in custody is generally a question of fact (see People v Centano, 76 NY2d 837 [1990]), and the standard to be applied is whether a reasonable person, innocent of any crime, would have believed he was not free to leave (see People v Yukl, 25 NY2d 585 [1969]).

There is no real dispute in this case that defendant was ultimately subjected to custodial interrogation. There was an armed police officer at the hospital around the clock assigned to guard the defendant. The defendant was not allowed to leave, nor was he allowed any visitors, including family members. Further, the defendant was prohibited from making telephone calls or possessing his own phone. Mindful of this factual backdrop and the above applicable law, there is no doubt that the defendant was in custody. The question thus becomes whether the defendant's statements were taken in violation of his Miranda rights, particularly his right to counsel, and whether his consumption of the various prescription drugs administered as part of his treatment regimen rendered him incapable of making a knowing, voluntary, and intelligent waiver of his Miranda rights.

Defendant contends that he unequivocally invoked his right to counsel. The Court agrees. "A suspect in custody who unequivocally requests the assistance of counsel may not be questioned further in the absence of an attorney" (People v Grice, 100 NY2d 318, 320-321 [2003]). Nor may a suspect in custody who unequivocally invokes the right to counsel "subsequently waive the right to counsel unless...in the presence of an attorney representing that defendant" (People v Harris, 93 AD3d 58, 66 [2nd Dept 2012], affd 20 NY3d 912 [2012], citing Grice at 320-321; see People v Cunningham, 49 NY2d 203, 205 [1980]). The above excerpt of defendant's recorded interrogation shows that he unequivocally requested the assistance of counsel. In response to Investigator Galetta's question, "Are you able to talk ok?" defendant stated, "Yeah. Before we do this I need to call my Dad and have him send my lawyer up here." Then, in response to the very next question, posed by Investigator Brennan, "Do you want a [*12]lawyer before talking to us? That's your right[,]" defendant responds, "Yeah." And when Investigator Brennan immediately responded, "I didn't hear you sir[,]" the defendant again, without hesitation, responded, "Yeah." While defendant may not have been voluble in his request, a suspect's desire for the assistance of counsel need not be couched "with the discrimination of an Oxford don" (see Davis v United States, 512 US 452, 459 [1994] [internal quotation marks omitted]; see Harris at 70), and his language here, albeit subdued, sufficiently clearly expressed his desire for the assistance of counsel. "By expressing his desire for the assistance of counsel, the defendant...gave voice to his belief that without the benefit of legal counsel, he could not deal with the police alone" (id. [string citations omitted]). "Since the defendant unequivocally invoked his right to counsel while in police custody, it indelibly attached[,]...[and] the police were prohibited from questioning [him further] without first obtaining a waiver of his right to counsel in the presence of an attorney" (id.). Accordingly, the statements attributed to the defendant following his invocation of counsel are inadmissible at trial in the People's case-in-chief.[FN7]

However, the Court rejects defendant's further contention that the People should be precluded from utilizing his statements even for impeachment. More specifically, defendant argues that the investigators deliberately violated his Miranda rights, particularly, his right to counsel, by knowingly continuing to question him after he invoked. The Court disagrees.[FN8] The Court finds that here, as in People v Wilson (28 NY3d 67 [2016], affg 120 AD3d 1531 [4th Dept 2014], rearg denied 28 NY3d 1158 [2017]), "there is nothing in the record to support defendant's contention...that [the investigators] consciously circumvented defendant's invocation of his Fifth Amendment rights [to garner impeachment evidence] or otherwise rendered [his] statements involuntary as a matter of law" (id. at 73). Thus, should the defendant choose to exercise his right to testify at trial, his suppressed statements may be utilized by the People for impeachment [*13]purposes or on rebuttal (see generally id.; People v Harris, 25 NY2d 175 [1969], cert granted 398 US 937 [1970], affd 401 US 222 [1971]).

II. ShotSpotter

Defendant has also filed a motion seeking preclusion of "ShotSpotter" evidence, or, in the alternative, a hearing on the issue pursuant to Frye v United States (293 F 1013 [DC Cir 1923]). The Court, having considered the defendant's written submission and the People's oral response, finds that defendant's request for a Frye hearing is without merit, and thus, it is hereby denied. The Court also finds that defendant's arguments against the ShotSpotter evidence are probative of weight, not admissibility. Therefore, defendant's motion to preclude ShotSpotter evidence is also denied. Defendant may challenge the reliability of any evidence presented on this issue through cross-examination.

III. Sandoval

The Court has also reviewed the People's application pursuant to People v Sandoval (34 NY2d 371 [1974]) seeking to cross-examine defendant, should he testify at trial, on his prior conviction for assault in the third degree. The Court, having reviewed the People's application as well as the defendant's written response thereto, will allow the People to ask defendant, should he testify at trial, whether he has been convicted of a misdemeanor crime. The People are precluded from cross-examining defendant on the specific nature of the crime, i.e. that he was convicted of assault in the third degree, the underlying facts of the crime, or the sentence imposed.

For all the above reasons, it is hereby

ORDERED, that the branch of defendant's omnibus motion seeking suppression of tangible and statement evidence obtained as a result of his arrest is denied; and it is further

ORDERED, that the branch of defendant's omnibus motion seeking suppression of his statements as set forth in the People's CPL § 710.30 notice is granted insofar as the People are precluded from utilizing said statements in their case-in-chief; and it is further

ORDERED, that the People may utilize the defendant's suppressed statements for impeachment purposes or on rebuttal; and it is further

ORDERED, that defendant's motion regarding preclusion of ShotSpotter evidence, or, in the alternative, a hearing on the issue, is denied in its entirety; and it is further

ORDERED, that the People may cross-examine the defendant, should he exercise his right to testify at trial, on the fact that he has been convicted of a misdemeanor crime, but not on the nature of the conviction, the underlying facts of the conviction, or the sentence imposed.

Dated: April 13, 2017

Rochester, New York

__________________________________

HON. SAM L. VALLERIANI

Monroe County Court Judge Footnotes

Footnote 1: Proof was closed at the conclusion of the hearing on February 8, 2017. Both counsel thereafter filed written submissions, and the Court's written decision and order was filed on March 28, 2017. Based on the Court's subsequent ruling on a separate issue pursuant to People v Rosario (9 NY2d 286 [1961]), the Court granted defendant's request to re-open the hearing to continue his cross-examinations of Officer Joseph Ferrigno and Officer Sam Giancursio. The People did not oppose. The lion's share of the balance of both cross-examinations endeavored to showcase inconsistencies between the officers' respective prior suppression hearing testimony and their respective testimony before the Professional Standards Section of the Rochester Police Department regarding the underlying arrest. To the extent that any new pertinent facts were elicited, they are incorporated herein.

Footnote 2: Although the transcript reveals that the prosecutor sought to introduce defendant's recorded interview as People's exhibit 9, it was marked received at the hearing as People's exhibit 4. Thus, to save from confusion, defendant's recorded interrogation is subsequently referenced in this opinion as People's exhibit 4.

Footnote 3: Only Investigator Galetta testified at the hearing.

Footnote 4: The recording reveals that the next utterance, which immediately precedes Investigator Brennan stating, "That's your right," sounds as though it comes from the defendant but is inaudible.

Footnote 5: The recording reveals that this statement and Investigator Galetta's preceding statement, "Alright, that's fine," are uttered at virtually the same time.

Footnote 6: The Court's finding that the defendant committed an intervening illegal act is based upon the credible hearing evidence and, as such, squarely confined to its suppression analysis. The Court presumes the defendant innocent of the charges contained in the instant indictment, each and every element of which the People bear the burden of proving beyond a reasonable doubt at trial.

Footnote 7: Inasmuch as defendant's invocation of counsel preceded his Miranda waiver, the Court need not decide whether the prescription medications defendant was taking during his hospitalization compromised the validity of the waiver. In any event, defendant's medication regimen notwithstanding, the credible hearing evidence does not establish that "he was under the influence of medication at the time he waived [his Miranda] rights to the degree of mania, or of being unable to understand the meaning of his statement" (People v Tracy, 125 AD3d 1517, 1518 [4th Dept 2015], lv denied 27 NY3d 1008 [2016] [citations and internal quotation marks omitted).

Footnote 8: The defendant's reliance on People v Nelson (189 Misc 2d 362 [Monroe County Ct 2001, Connell, J.]) in support of this contention is misplaced. In Nelson, the investigator persisted in questioning the defendant after he invoked solely for the purpose of developing rebuttal evidence for the People (see id. at 363). Here, Investigator Galetta's testimony and the Court's review of the pertinent portions of defendant's recorded interview collectively establish that the investigators considered defendant's pre-Miranda requests for counsel less than unequivocal. While the Court disagrees with that determination for the reasons expressed in this opinion, the record falls short of establishing that the investigators knowingly questioned the defendant in violation of his constitutional right to counsel.