People v Smith

[*1] People v Smith 2018 NY Slip Op 50814(U) Decided on May 29, 2018 Supreme Court, Bronx County Best, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2018
Supreme Court, Bronx County

The People of the State of New York,

against

David Smith, Defendant.



377-2016



Terri Rosenblatt, Esq.

Michael Murphy, Esq.Attorneys for DefendantAssistant District Attorney Elizabeth KamensAssistant District Attorney Meghan O'Malley
Miriam R. Best, J.

For the reasons that follow, defendant's motion to suppress a firearm, statements and a saliva sample for a Fourth Amendment violation is denied. Defendant's motion to suppress his post-arrest statements to a detective for a Fifth Amendment violation is granted to the extent indicated below.

Background

Defendant is charged with Criminal Possession of a Weapon in the Second Degree (PL § 265.03[3]) and related crimes. The People allege that on January 17, 2016, at approximately 12:40 am, police observed defendant operating a scooter on a public roadway in the vicinity of Bussing and Edson Avenues in Bronx County, crossing over double-yellow lines into the opposing traffic lane and failing to stop for a stop sign. The People further allege that defendant refused to pull over when directed to so by police, then removed a loaded, operable, unlicensed .38 caliber revolver from his waist area, threw it underneath a parked vehicle, and fled (Criminal [*2]Court Complaint, pp 1-2).[FN1] When the People filed the indictment here, they gave notice of two statements in the Voluntary Disclsoure Form ("VDF"). First, they noticed an oral statement defendant allegedly made to P.O. Patrick Jean on January 17, 2016 at 12:40 am, when opposite 4224 Edson Avenue in the Bronx, in which he said, in sum and substance, "I just got off of work. I work at a Chinese restaurant on White Plains Road. What's going on? This is my scooter. I don't have paperwork for it. I don't know why it's not registered." The People also noticed a videotaped statement defendant allegedly made to Detective Christan Jimenez at the 47 Precinct at 11:30 am that same day, when he said, in sum and substance, "I work as a tailor on 214 Street. I arrived in the U.S. in October 2010. I didn't know they were officers. I was coming from my girlfriend's house on Gun Hill Road with a stop at 214. At 12:30 I was at Edenwald and Bussing. I didn't know they were cops. I had been robbed previously in that area, that's why I didn't stop. They told me that they found a gun and that there was shots fired in the area. They didn't see me throw anything."

A Mapp/Dunaway/Huntley hearing was ordered regarding the firearm, statements and a saliva sample that defendant gave while in custody. This court conducted the hearing on May 1, 2018. The People called Police Officer Jean and Detective Jimenez, whom the court found to be credible. The defense called no witnesses. Based on the testimony at the hearing, I make the following findings of fact and conclusions of law.

Findings of Fact

Police Officer Patrick Jean has been a New York City police officer for 13 years. He has worked in the 47 Precinct since leaving the police academy (H 4-5).[FN2] On January 17, 2016, he was working from 8:00 pm to 4:35 am with a partner, Officer Palmerini; they were assigned to anticrime and were in plain clothes in an unmarked police car (H 5, 6-7). At about 1:15 am, Jean was on White Plains Road when he got a call on his cell phone from his sergeant, Sgt. Barberis, who told him that he had stopped an individual who had thrown a firearm (H 8-9, 17, 33-34, 41, 43). Sgt. Barberis told Jean to come to the location, 4224 Edson Avenue (H 7, 43). It took Jean "[t]wo minutes, tops" to arrive at the scene (H 40). When he got there, Jean saw Barberis next to a parked Suburban SUV and saw defendant up the block on Edson Avenue with Officer Maldonado. A two-wheel motorized scooter was a couple of feet away from defendant, who was already under arrest (H 17, 23, 24, 35).[FN3] Palmerini went up the block where Maldonado was (H 35). Jean stayed in the area of the SUV; using his flashlight, he saw a firearm under the SUV (H 24, 25-26, 35, 42 and People's Exhibit 1).

Barberis told Jean that he and Maldonado were traveling [FN4] eastbound on Edenwald Avenue when they saw in their rearview mirror [FN5] that defendant was operating a two-wheel motorized scooter. These officers watched defendant for half a block as he was swerving from the left to the right lane across the double-yellow lines. When defendant turned left to go north on Edson Avenue, these officers turned north on Baychester Avenue, which they chose as "a faster route to try to catch up to" defendant (H 9). At the intersection of Baychester and Boston Avenues they turned west on Boston Avenue, where they saw defendant still operating the scooter and failing to stop at the stop sign at the intersection of Boston and Edson Avenues (H 9). At that time, these officers put on their lights and sirens to stop defendant, but he did not stop (id). The officers then rolled down their windows and identified themselves as police, but defendant still did not stop (H 9-10). Instead, using his right hand, defendant removed a silver firearm from his waist and threw it to the left across his body and under a vehicle. When the firearm fell Barberis heard "a metal hitting the ground" (H 10, 13, 21, 22, 23). The officers stopped defendant "further north on Edson," where Maldonado arrested him and Barberis went back to safeguard the firearm (H 19-20, 24).

Barberis and Maldonado told Jean that defendant made a statement when they stopped him, telling Maldonado that he worked for a Chinese restaurant doing deliveries, that he had just gotten off work, and that he did not have any paperwork for the scooter (H 29). Defendant was not handcuffed or under arrest when he made this statement (id.). According to Jean, these officers told him that they did not use any force or coercion or make any promises to defendant to make this statement (H 30-31).

Jean photographed the firearm in place under the SUV and safeguarded it until officers from the Evidence Collection Team ("ECT") arrived about an hour later (H 24, 26, 37, 42). An ECT officer, who was wearing gloves, unloaded the firearm, which was a revolver, fumigated it and swabbed it for DNA (H 31, 32, 37-38, 42).[FN6] Then the officer gave the firearm to Jean, who took it back to the precinct and vouchered it (H 31-32, 42-43).

Other officers transported defendant to the 47 Precinct, where he was put in a holding cell and his pedigree information was obtained (H 32).

Detective Christan Jimenez has been employed by the New York City Police Department for 13 years. For approximately the past three years, she has been assigned to the 47th Precinct Detective Squad (H 47-48, 56). On January 17, 2016, she took a videotaped statement from defendant (H 50-51). Before doing so, she reviewed arrest paperwork and did a search for warrants (H 51, 65-66). Based on her review of those materials, Jimenez knew that defendant was 20 years old and did not have a "long rap sheet" (H 65-66).

Jimenez's interview of defendant was recorded on People's Exhibit 2, which was received in evidence without objection (H 53-53A; H 74-75). The videotape shows that when she and defendant entered the interview room at 11:34 am, she removed the handcuffs from defendant and he asked how he could get a voucher for his property. She and defendant then sat at a table and she asked defendant his name, date of birth and address. Jimenez then asked defendant questions about his education, his work, where he was born, when he came to the United States, and whether he had any problems or "beefs" with anyone. Jimenez then asked defendant if he knew who his arresting officer was. Defendant said that he "didn't even know they was officers" (PX A, p ACT11; DX A, p 8).[FN7] Jimenez asked what made him say that and defendant answered in part by saying, "Because I was riding, right, tell me now, you're on the road, right? Two guys . . ." (PX 2; H 59, 80).[FN8]

Up to this point, Jimenez had not read defendant his Miranda rights.[FN9] At this point, she said to him, "All right, you want to tell me what happened last night, alright. So let's do it the right way, okay?" Defendant said, "Yeah," and Jimenez said, " I'm going to read you your rights" (PX 2; PX A, p ACT 11; DX A, p 8). She also told defendant to "answer clearly, no nodding." She told defendant that he had the right to remain silent and refuse to answer any questions, and asked if he understood. Although defendant's answer was unintelligble to me, Jimenez's response was clear: she asked defendant if he wanted her to read it again; he said yes, and she did so. He then answered yes to that question and each of the other standard Miranda questions (PX 2; H 70). Defendant then agreed to answer questions. Among other things, he said that he was at his girlfriend's on Gun Hill Road the night before; that he was tipsy; that he was riding a blue moped, which was confiscated; that he had been robbed "like two weeks back" but had not reported it and that was why he did not stop; that the officers who stopped him told him they had found a gun and there were "shots fired." Defendant also said that he saw the police car before they saw him, made a turn and asked himself "why this car slow down?" Defendant denied that he had a gun and said the police did not see him throw anything. He also said that an officer "came back" and told him his fingerprints were on the gun when they did not even fingerprint him. Jimenez asked defendant if he was willing to do a DNA test so the police could "make sure it's not yours." Defendant said yes (PX 2). She agreed that she questioned defendant "for about 20 minutes before [she] asked him to give a DNA sample" (H 62).

Jimenez left defendant alone in the interview room for several minutes and returned with an envelope from which she took out gloves, a cotton-tipped swab and a tube. During her absence, defendant yawned, fidgeted, appeared to be talking (unintelligibly) to himself, put up his hood and leaned back in the chair. When Jimenez returned, defendant asked her for some water; she left and returned with a cup of water, which she gave him. Jimenez then read to defendant from a consent form. She told him that he was consenting to give a DNA sample to the New York State police for analysis; that he had a right to refuse;[FN10] that he understood that a DNA profile would be prepared and that it might be compared to other DNA profiles and used for investigative purposes; that defendant was giving his consent knowingly, voluntarily and intelligently. After reading all of this from the form, Jimenez told defendant where to sign, which he did. She then gave him the cotton-tipped swab and instructed him on how to swab his own cheek (PX 2; H 67, 71-72, 78).[FN11]

On cross-examination, Jimenez agreed that she was trying to "gain some sort of rapport" with defendant (H 57). She was questioning defendant because he had been arrested for possession of a gun, a serious felony (H 66). She agreed that she generally takes DNA samples only from people charged with serious felonies (H 67). She also agreed that defendant told her three times "that was not his gun" (H 68).

Defendant did not testify at the hearing and called no witnesses.

The Parties' Contentions and the Court's Analysis as to Mapp/Dunaway

With respect to the Mapp/Dunaway portion of the hearing, defendant argues that the gun and his statements should be suppressed because the People failed to meet their burden of coming forward with credible evidence establishing the legality of the initial police contact (H 84). This is so, according to defendant, because Jean had no firsthand knowledge of why he was pursued, stopped, taken off his motor scooter and arrested by the police (H 84, 85). Relying on People v. Gonzalez, 80 NY2d 883 (1992), People v. Rojas, 163 AD2d 1 (1st Dept 1990), People v. Barreto, 161 AD2d 305 (1st Dept), lv denied, 76 NY2d 852 (1990), People v. Roman, Ind. No. 2528-2012 (Sup Ct, Bronx County 2014) (Marvin, J.), and People v. Mejia, 21 Misc 3d 1147(A) (Sup Ct, Bronx County 2008) (Dawson, J.), defendant argues that the People can never meet their burden of going forward at a suppression hearing when they rely solely on hearsay testimony.

The People oppose suppression, arguing that Jean's testimony was reliable and credible; therefore, the People met their burden in the first instance of establishing the legality of the police conduct. The People argue that when Barberis and Maldonado saw defendant commit numerous traffic infractions, they had the legal authority to stop him (H 102, 105, 106). When they saw him remove a firearm from his waist and throw it across his body, they had probable cause to arrest him (H 106, 107). Relying on the fellow officer rule, the People argue that "even if the arresting officer lacks personal knowledge sufficient to establish probable cause, an arrest would be lawful if an officer acts upon the direction of, or as a result of communication with a [*3]superior or fellow officer or another police department, provided that police as a whole were in possession of information sufficient to constitute probable cause to make an arrest" (H 103).

In rebuttal, defendant argues that the fellow officer rule is inapplicable here, because Jean did not act on the information he received from Barberis and Maldonado (H 121). Defendant also argues that even if the People met their burden of going forward, the police conduct was illegal, because there was no basis to detain him and no basis to believe that Barberis and Maldonado could recognize a gun (H 89).

Where a defendant challenges the legality of a search and seizure, the People have the burden of going forward, in the first instance, with credible evidence tending to show the legality of the police conduct. See People v. Berrios, 28 NY2d 361, 367 (1971). Once the prosecution has met this burden, defendant has the ultimate burden of proving by a preponderance of the evidence that the officers acted illegally. People v. Bogan, 15 Misc 3d 1109(A), *2 (Sup Ct Bronx County 2007) (Dawson, J.); see also People v. Bulgin, 29 Misc 3d 286, 294 (Sup Ct Bronx County 2010) (Best, J.). For the reasons that follow, the People have met their burden of going forward, and defendant has failed to meet his burden of showing that his arrest was unlawful.

At a suppression hearing, "hearsay evidence is admissible to establish any material fact," CPL § 710.60[4]. Indeed, "the prosecution may satisfy its burden even with 'double hearsay,' or 'hearsay-upon-hearsay,' so long as both prongs of Aguilar-Spinelli [FN12] are met at every link in the hearsay chain," People v. Ketcham, 93 NY2d 416, 421 (1999), citing People v. Parris, 83 NY2d 342, 347-48 (1994). "[T]he People are not obligated to produce any particular witness [at a suppression hearing], provided they sustain their burden of coming forward with evidence showing that there was probable cause for the arrest," Parris, 83 NY2d at 346, citing People v. Petralia, 62 NY2d 47, 52, cert. denied, 469 US 852 (1984).

Although it has been said that the People fail to meet their burden of going forward "should they fail to call any witnesses with firsthand knowledge of the circumstances of the defendant's apprehension," Kamins, 1 New York Search & Seizure § 7.03[3][b][I] (LexisNexis 2018) (emphasis in original), case law establishes that this is not always so. People v. Mitchell, 124 AD3d 912, 913-14 (2d Dept 2015) (reversing suppression; officer who testified, who was called to scene only after defendant was stopped, established that arresting officer observed defendant driving at 110 miles per hour and then followed and pulled vehicle over; testifying officer then observed that defendant exhibited signs of intoxication); In the Matter of Derek G., 25 AD3d 553, 553-54 (1st Dept) (Family Court properly denied suppression, where officer who arrived after appellant was under arrest and detained in principal's office testified about receiving information from arresting officer that "two shot" pistol had been recovered from appellant's bookbag which had been lying at his feet in classroom; this "unchallenged account of the discovery of the pistol, derived from presumptively reliable information provided by fellow officers, was sufficient to establish probable cause for the appellant's arrest" [citations omitted]), lv denied, 7 NY3d 707 (2006); People v. Caceres, 52 Misc 3d 1212(A), **1-3 (Crim Ct, Bronx County 2016)(Montano, J.) (People established validity of initial vehicle stop through testimony of officer who was called to scene after it occurred, who testified to fellow officer's firsthand [*4]observations of defendant speeding at about 70 miles per hour in 30 miles per hour zone, changing lanes without signaling, and cutting off other motorists; hearsay testimony and testifying officer's own observations also established that defendant exhibited signs of intoxication).[FN13]

On the other hand, the People will fail to meet their burden of going forward at a suppression hearing where they rely exclusively on hearsay evidence but fail to demonstrate the legality of police conduct, or where the defense challenges the sufficiency of the evidence, whether by cross-examining the People's witness or putting on a defense case. Gonzalez, 80 NY2d at 884-85 (hearsay testimony of People's only witness at hearing insufficient, standing alone, to establish that defendant went to precinct with three detectives voluntarily, where witness's hearsay account was disputed by defendant's wife, who testified that detectives told defendant they would arrest him if he did not come to precinct voluntarily; also, witness's "knowledge concerning the disputed events was fortuitous. He happened to observe the defendant when he arrived at the precinct and to be told by the detectives of what had transpired at defendant's home."); People v. Moses, 32 AD3d 866, 867-68 (2d Dept) (People failed to meet initial burden of showing defendant was lawfully stopped before being identified, where they did not call either plainclothes officer who stopped defendant, and "vague and equivocal hearsay testimony of the arresting officer concerning a statement made by one of the plainclothes officers was inadequate to demonstrate that the defendant's presence at the scene was lawfully obtained"), lv denied, 7 NY3d 927 (2006); Rojas, 163 AD2d at 1-2 (People failed to demonstrate legality of police conduct; only officer who testified arrived at scene after defendant and three others were already being held at gunpoint by the undercover officer who did not buy the drugs or transmit description of suspects; witness's "testimony gave no indication whether [arresting] undercover . . . had witnessed the drug transaction, nor . . . whether [arresting] undercover . . . had had the sellers described to him by the undercover who purchased the drugs"); Barreto, 161 AD2d at 306-07 (People failed to meet burden to establish reasonable suspicion for stop; only officer who testified saw defendant run across the street holding his waist and enter movie theatre, but did not see outline of gun and testified that bulge could have been weapon or "bag of dope;" testimony did not establish basis to conclude that non-testifying officer, who stopped defendant and immediately grabbed his waist, had reasonable suspicion that defendant was engaged in criminal activity or that officer feared for his safety); Roman, Slip Op at **1, 4 (ordering suppression, [*5]where People's only witness at hearing did not establish how or when police came to detain defendants, or when or where crime occurred); Mejia, 21 Misc 3d 1147(A), * 3 (ordering suppression, where court was "left to speculate as to who placed defendant in custody and what observations justified that police action. . . . '[s]ummary statements that the police had arrived at a conclusion that sufficient cause existed will not do.' [Citation omitted.]"); People v. Lanier, 8 Misc 3d 1017(A), *1-2, 5-6 (Sup Ct, Bronx County 2005) (Farber, J.) (ordering suppression; cross-examination of People's only witness at hearing established that other officers had already detained defendant before witness arrived on scene, but People called no witness "to explain even by hearsay what the officers who held the defendant knew at the time they stopped and physically restrained him;" "[t]he People presented no evidence on what information was available to the apprehending officers that would have permitted the detention or arrest of defendant.") (emphasis supplied); People v. Ventura, 196 Misc 2d 989, 991-92 (Sup Ct, New York County 2003) (Weinberg, J.) (People failed to meet initial burden of justifying arrest, where they relied exclusively on officer with no firsthand knowledge of basis for arrest and "those hearsay details had been adequately challenged by the defendant so as to require the testimony of the arresting officer").

The facts established here contrast with those cases where suppression was required. Unlike the detective in Gonzalez, Jean's knowledge of events was not fortuitous; rather, the sergeant who made the observations of defendant's driving and throwing of the firearm specifically called Jean to the scene, and Jean saw, photographed and vouchered the revolver. Unlike the witness in Moses, Jean's testimony was not vague or equivocal. Unlike the witnesses in Rojas, Barreto and Roman, here Jean recounted Barberis's description of the events leading to defendant's stop and arrest.

Finally, unlike Gonzalez, Lanier, Mejia and Ventura, defendant's cross-examination of Jean did not present substantial questions regarding the legality of the conduct of the non-testifying officers. To the contrary, it established only that Jean had no firsthand knowledge of what happened before he got there (H 39, 40, 41). Accordingly, defendant's claim that "there were substantial questions about the legality of the police conduct that Officer Jean, as [an] officer who only had secondhand knowledge, simply couldn't testify to and couldn't be challenged on and couldn't be tested" (H 87), fails. Defendant did not ask Jean any substantive questions about the information provided to him by Barberis and Maldonado. Moreover, his argument that what Jean testified they saw in the rearview mirror was "illogical," because "[a]nyone who's driven a car knows that a driver and a passenger can't see the same thing out of a rearview mirror at the same time" (H 88), is simply not enough render Jean's account either incredible or legally insufficient to establish the legality of the police conduct. Finally, his claim that there is no basis to believe that Barberis and Maldonado could recognize a gun (H 89) is meritless.

"Probable cause to believe that a person has violated a provision of the Vehicle and Traffic Law provides an '"objectively reasonable basis"' for the stop of a vehicle [citations omitted]." People v. Anderson, 118 AD3d 1138, 1140 (3d Dept 2014), lv denied, 24 NY3d 1117 (2015). Here, Maldonado and Barberis observed defendant operating a motorized scooter, swerving from the left to the right lanes, across the double-yellow lines for approximately a half of a block. At that point, they had probable cause to believe that defendant had committed a [*6]traffic infraction. People v. Robinson, 97 NY2d 341, 349 (2001); see also People v. Safarty, 291 Ad2d 889 (4th Dept 2002) (officer was authorized to pull defendant over after he observed him driving down the center of the road); People v. Ogden, 250 Ad2d 1001 (3d Dept 1998) (where officer observed defendant, in his rearview mirror, straddling double-yellow line, stop of defendant's vehicle was permissible). After Maldonado and Barberis observed defendant commit a second traffic infraction by failing to stop at a stop sign, they activated their lights and sirens, identified themselves as police officers and lawfully pursued defendant when he failed to stop. Accordingly, defendant's claim that there was no basis to stop him fails.

Defendant plainly abandoned the firearm when he threw it on the street as he continued to ignore their attempts to pull him over. While this Court is mindful that "[t]he law creates a strong presumption against abandonment of property, with the People bearing the burden of proving a defendant's intentional relinquishment of possession (citation omitted)," People v. Pirillo, 78 AD3d 1424, 1425 (3d Dept 2010), the People met that burden here. Defendant demonstrated a clear intention to abandon the firearm by throwing it into the street in response to the officers' lawful attempts to pull him over for traffic infractions. People v. Jackson, 158 AD2d 545 (2d Dept) (hearing court properly denied motion to suppress gun and drugs defendant abandoned during high speed flight from police), lv denied, 76 NY2d 737 (1990); People v. Wood, 125 AD2d 823 (3d Dept 1986) (defendant abandoned cocaine by throwing it out of car window as he fled police trying to execute search warrant).

For all of these reasons, defendant's motion to suppress the firearm, statements and his DNA sample for a Fourth Amendment violation is denied.

The Parties' Contentions and the Court's Analysis as to Huntley [FN14]

After the hearing, defendant moved to suppress "all of the statements that were made before timestamp 11:44:22 in the video, because all of those statements were made during a custodial interrogation before [he] was read his Miranda waivers, and the People did not meet their burden of showing that the statements were voluntary" (H 100). Defendant "submits that the entire conversation [with Jiminez] was designed to elicit an incriminating response" (H 117) and that "except for some very basic pedigree questions, that should be suppressed" (H 119). Moreover, while "agree[ing] that pedigree information is not custodial interrogation, . . . the principles that animate the reason for pedigree information don't apply as strongly in this situation where pedigree had already been taken" (H 120). At oral argument, defendant had no specific arguments as to "the remainder of the statement," presumably meaning what he said after [*7]having been Mirandized, or as to the voluntariness of his consent to give a DNA sample, stating that he would "rest on the record as to those" (H 100). Subsequently, in response to the court's request for additional briefing, defendant now argues that Jiminez's questions regarding his immigration status, whether he had any "problems" or "beef" with anyone and whether he knew who his arresting officer was, were questions that were likely to elicit an incriminating response and therefore constituted interrogation (Def Supp Mem, pp 10, 11). Therefore, because he was subjected to custodial interrogation without having been advised of the Miranda warnings, those statements must be suppressed. He also argues that his post-Miranda statements must also be suppressed, because there was no break between the pre-Miranda and post-Miranda questioning (id., pp 13, 14).

The People argue that defendant knowingly, intelligently and voluntarily waived his Miranda rights and knowingly, intelligently and voluntarily consented to give a DNA sample. At oral argument, the People claimed that "Miranda was given and should apply to the entire conversation," meaning that "it relates back to the beginning before Miranda was given" (H 114). They also argued that custodial interrogation began only after defendant was Mirandized; the pre-Miranda portion of Jiminez's conversation with him was not custodial interrogation, but merely "basic niceties" (id.), "background information . . . and getting to know the defendant" (H 115). In their written submission, the People argue that the pre-Miranda conversation was simply Jiminez's attempt to establish a rapport with defendant, not custodial interrogation (H 114, 115). They argue that Jiminez's question about where defendant was born came in response to his statement that he learned tailoring from his mother in Jamaica; therefore it is "illogical to find that this question would be reasonably likely to elicit an incriminating response when the Defendant is simply talking about his upbringing and trade" (Peo's Opp, p 6). They also argue that Jiminez's question regarding any "beefs" defendant might have does not "rise to the level of interrogation as a person under suspicion for possession of a firearm would not reasonably believe he was being interrogated for this crime" (id. p 7). Alternatively, the People argue that the pre-Miranda and post-Miranda questioning was not part of a single continuous chain of events. The People concede that there was no "break in time, location, or personnel" (id. p 9), but argue that because defendant did not make any incriminating statements during pre-Miranda questioning, which lasted only nine minutes, there was no "systematic, long term questioning." Therefore, suppression of his post-Miranda statements is unwarranted (id. pp 8-9).

For the Huntley portion of the hearing, the People had the burden of proving beyond a reasonable doubt that defendant's statements were voluntary. People v Huntley, 15 NY2d 72, 78 (1965). "The voluntariness of an inculpatory statement must be evaluated by examination of the totality of the circumstances under which it was made. People v. Anderson, 69 NY2d 651 (1986)." People v. Thomas, 20 Misc 3d 1108(A), *5 (Sup Ct, Bronx County 2008) (Sonberg, J.). Because defendant was interrogated while in custody, the People must also establish, beyond a reasonable doubt, that he knowingly and voluntarily waived his Miranda rights. People v. Hawkins, 254 AD2d 96 (1st Dept), lv denied, 92 NY2d 982 (1998). For the reasons that follow, all of defendant's statements to Detective Jiminez following her question "when did you come to the States?"(PX A, ACT 7; DX A, p 5) must be suppressed.

Miranda warnings are required whenever a person in custody "is subjected to either express questioning or its functional equivalent." Interrogation "refers not only to express [*8]questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response," Rhode Island v. Innis, 446 US 291, 300-01 (1980); People v. Ferro, 63 NY2d 316, 322 (1984). Here, the People concede that defendant was in custody when Jiminez started speaking with him. For the reasons that follow, the court holds that all of her questions beginning with "when did you come to the States?" constituted custodial interrogation.

As defendant correctly argues, in determining whether the police interrogated a suspect, the "question is not what was the subjective intent of the police but rather what words or actions, in light of their knowledge concerning the suspect, they 'should have known were reasonably likely to elicit an incriminating response' [citations omitted]." People v. Ferro, 63 NY2d 316, 232 (1984). Accordingly, Jiminez's testimony that she was being "personable" and trying to get to know defendant "as a person, not as a suspect" before administering Miranda warnings (H 57-58) cannot and does not end the court's inquiry. Although Jiminez did not specifically ask defendant about "the details of the incident" (H 58) until she asked him why he said he did not know the people trying to pull him over were police officers, all of her questions beginning with "when did you come to the States?" were reasonably likely to elicit incriminating responses. While a question about where defendant was born may be considered a pedigree question, Jiminez's follow-up questions about when defendant moved back and forth between Jamaica and the United States had nothing to do with pedigree. They could, however, have resulted in incriminating responses, such as why defendant had fled from the police. See People v. Ervin, 57 AD3d 1398 (4th Dept 2008) (lower court should have suppressed statements defendant made while in custody about his life and church, as well as post-Miranda statements, where People did not establish that arresting officer's questions did not constitute interrogation or functional equivalent, and there was no pronounced break in the interrogation). Jiminez then began asking repeated questions about whether defendant had "problems" or "beefs" with anyone, either while growing up or now. These questions were also reasonably likely to elicit an incriminating response, such as a motive for defendant to carry an unlicensed firearm or his intent to use one unlawfully against another (see PL § 265.03[1][b]). See People v. Summers 55 Misc 3d 1219(A), ** 6-7 (Sup Ct, Kings County 2017) (Shillingford, J.) (asking whether defendant was "on the run because he had beef on West 2-4" was "investigating a possible motive for the shooting"). Jiminez then asked defendant if he knew who his arresting officer was. When he replied that he did not even know that "they was officers," she asked a question specifically about the facts of the incident: "Why, what makes you say that?" Only then did Jiminez advise defendant of his Miranda rights.

It is well established that "[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a 'single continuous chain of events', there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed" [citations omitted]. In determining whether a subsequent statement made after Miranda warnings were given was part of a "single continuous chain of events," the court considers various factors including "whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether prior to the Miranda violation, [*9]defendant had indicated a willingness to speak to police" [citations omitted]. The purpose of the inquiry is to determine whether there was a "definite, pronounced break in questioning to return the defendant to the status of one who is not under the influence of questioning" [citations omitted].

People v. Rodriguez, 132 AD3d 781, 782-83 (2d Dept 2015), lv denied, 27 NY3d 968 (2016), habeas denied, 2017 WL 2838144 (EDNY 2017). Here, there was no "definite, pronounced break in the interrogation [such] 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). Indeed, there was no break in the questioning at all. Contrast People v. White, 10 NY3d 286, 288, 289, 292 (defendant's post-Miranda statements to police, made after he was subjected to brief period of un-Mirandized custodial interrogation or its functional equivalent, did not have to be suppressed, where initial exchange lasted no longer than five minutes, 15 to 20 minutes separated those statements from post-Miranda admissions, and defendant drank a soda and smoked a cigarette before being read and waiving his rights), cert denied, 555 US 897 (2008), habeas denied, 2011 WL 6780995 (EDNY 2011), app dism'd (2d Cir 12-353, May 10, 2012). Therefore, all of defendant's videotaped statements made after Jiminez asked him when he came to the United States must be suppressed for a Fifth Amendment violation.

However, because this court also finds that the People established beyond a reasonable doubt that defendant's statements were voluntary, that is, not the product of police coercion, the statements may be used for impeachment purposes. The entire questioning lasted approximately 30 minutes. Jiminez never threatened defendant or raised her voice at him, and she immediately brought him a beverage when he asked for one. Moreover, I watched the entire videotaped statement and observed defendant's demeanor during the interrogation. I conclude from that evidence that defendant was entirely cooperative and indeed appeared totally at ease with Jiminez. Therefore, while the People may not use the bulk of the videotaped statement on their direct case, they may cross-examine defendant about any part of it if he chooses to testify. See Harris v. New York, 401 US 222, 226 (1971) ("The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances."); see also People v. Tavarez, 16 AD3d 164 (1st Dept) (where hearing evidence did not support defendant's claims that he was subjected to threats or an unduly lengthy interrogation, lower court properly found that defendant's statements made after Miranda violation were voluntarily given and properly used for impeachment), lv denied, 5 NY3d 770 (2005), habeas denied, 2008 WL 2775810 (SDNY 2008).

Defendant Voluntarily Consented to Give a DNA Sample

Although defendant's Miranda rights were violated, it does not follow that the results of the testing of the DNA swab that he consented to provide must be suppressed. Reading from a consent form, Jiminez advised defendant that he had a right to refuse to provide a DNA sample, that a profile would be prepared from the DNA swab and might be compared to other DNA profiles and used for investigatory purposes, and that defendant was giving his consent knowingly, voluntarily and intelligently. Defendant then signed the consent form and personally swabbed the inside of his cheek. Under the totality of the circumstances, defendant's consent to provide DNA was entirely voluntary and not the product of coercion, see People v. Dail, 69 [*10]AD3d 873 (2d Dept) (consent to provide DNA sample was voluntary where, inter alia, defendant signed a consent form informing him of his right to refuse and was fully cooperative with police), lv denied, 14 NY3d 839 (2010).

Moreover, "'the voluntariness of a consent to search is not vitiated . . . by the failure to give Miranda warnings to an accused while subject to custodial interrogation,'" People v. Miller, 159 AD3d 1053, 1054 (3d Dept 2018) (court properly denied suppression of physical evidence; even though handcuffed in a vehicle with investigators and not Mirandized, defendant voluntarily consented to the search and facilitated it), quoting People v. McCray, 96 AD3d 1480, 1481 (4th Dept), lv denied, 19 NY3d 1104 (2012).

Here, for the reasons set forth above, the People have met their "heavy burden of establishing voluntary consent," People v. McCray, supra at 1481. The motion to suppress the results of the DNA sample that defendant consented to provide is denied.

This opinion constitutes the decision and order of the court.

Dated:Bronx, New York

May 29, 2018

Miriam R. Best

Acting Justice of the Supreme Court Footnotes

Footnote 1:Although defendant was also initially charged with failing to have a valid driver's license that night (VTL § 509), the indictment does not charge him with that traffic infraction.

Footnote 2:Parenthetical references preceded by a "H" refer to the hearing minutes.

Footnote 3:Jimenez later reviewed a three-page document and testified that defendant was arrested at "midnight 50 hours" (H 61). The defense did not question Jean about this discrepancy regarding the time of defendant's arrest.

Footnote 4:Sgt. Barberis was in the front passenger seat and Maldonado was driving (H 10).

Footnote 5:Although the transcript says they observed defendant "in the bridge of the mirror" (H 9, line 9), this court heard the witness say "in the rearview mirror." Defense counsel also clearly understood the testimony that way (H 88, lines 2-3). Accordingly, I believe that this is an error in the transcription.

Footnote 6:The ECT officer removed five bullets from the firearm (H 32, 38).

Footnote 7:PX A and DX A are transcripts of approximately the first 11 minutes of PX 2 and were submitted by the People and defendant, respectively, with their post-hearing memoranda.

Footnote 8:The parties disagree with each other on what defendant said next (compare PX A, p ACT 11 with DX A, p 8), and the court heard something else. For the reasons that follow, however, I need not make a finding about what defendant said here before Jimenez spoke again.

Footnote 9:On cross-examination, Jimenez agreed that she spoke with defendant for almost ten minutes before Mirandizing him (H 57, 58). She testified that "[t]here was nothing deliberate about me getting to know him as a person, not as a suspect" and that at this point "[i]t wasn't me questioning him about the details of the incident" (H 58). She told defense counsel that he might "perceive it" as her "trying to get his trust" and said they were "conversing" (id.).

Footnote 10:Because of what is shown on PX 2, I conclude that Jimenez was mistaken when she testified on cross-examination that she did not believe she told defendant he had a right to refuse a DNA sample (H 70).

Footnote 11:The People did not offer the DNA consent form as an exhibit at the hearing (H 78).

Footnote 12:Aguilar v Texas, 378 US 108 (1964); Spinelli v United States, 393 US 410 (1969).

Footnote 13:The Fourth Department held in People v. Roach, 265 AD2d 855 (1999), lv denied, 94 NY2d 906 (2000), that the People did not demonstrate probable cause for the defendant's arrest when they "failed to present any witness with first-hand knowledge of the circumstances of defendant's apprehension." While it appears from the cases cited there that Roach was stopped at one location and transported to another to be identified, the court did not set out what facts were established by the officer who testified or when that officer became involved in the case. If Roach stands for the proposition that the People can never meet their initial burden of going forward without calling a witness with firsthand knowledge of the defendant's detention, it appears to be contrary to the holding of Matter of Derek G., a more recent First Department case which is binding on this court, see Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664 (1984).

Footnote 14:Defendant moves to preclude the statements he made at the scene of his arrest, arguing that the notice in the VDF was inadequate because the statement was made to Maldonado, not Jean (H 99). Defendant concedes that he has no case for this proposition (H 100), and it fails. People v. Falkoff, 12 Misc 3d 1151(A), * 3 (Sup Ct, Kings County 2006) (Goldberg, J.) ("[People v.] Lopez[, 84 NY2d 425 (1994),] held, at 428, that a CPL 710.30[1][a] notice is sufficient if it specifies the evidence intended to be offered and contains the time, place, and manner of the statement and the sum and substance of the statement. There is no requirement that the statement notice also contain additional information . . . such as . . . who was present when the statement was made."). Defendant did not otherwise move to suppress defendant's statements to Maldonado.