People v Creary

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[*1] People v Creary 2022 NY Slip Op 22138 Decided on May 5, 2022 Supreme Court, Queens County Kirschner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 5, 2022
Supreme Court, Queens County

The People of the State of New York

against

Brandon Creary and Dylan Hamilton, Defendants.



Ind. No. 1365/2020



Camille Russell, Esq., for Brandon Creary
516-876-9300
camilleorussell@gmail.com

Scott Dufault, Esq., for Dylan Hamilton
718-261-3047, X513
sdufault@queensdefenders.org

Paige Nyer
Assistant District AttorneyOffice of the Queens District Attorney
718-286-6010
plnyer@queensda.org

David J. Kirschner, J.

I. Background and Procedural History

Defendants are charged by indictment filed January 12, 2021, with two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1][b], [3]), both class "C" violent felonies. Defendant Creary is also charged with one count criminal possession of a firearm (Penal Law § 265.01 [b]), a class "E" felony, and one count menacing in the second degree (Penal Law § 120.14 [1]), a class "A" misdemeanor. These charges stem from events alleged to have occurred December 21, 2020, between approximately 4:00 a.m. and 9:30 a.m., at 219-49 141st Road in Queens County.

Defendants move to suppress a loaded firearm recovered from defendant Creary's vehicle on the grounds it was obtained without requisite probable cause and, therefore, the fruits of an unlawful search. Defendant Creary also moves to suppress statements made by him to arresting [*2]officers on the same grounds and further claims that they were otherwise involuntarily obtained.

By decision and order dated August 5, 2021, the Hon. Michael Yavinsky ordered that a Mapp/Dunaway hearing be conducted with respect to both defendants and a Huntley hearing as to defendant Creary. On February 17, 2022, this court commenced a combined Mapp/Huntley/Dunaway hearing.[FN1] It concluded on March 11, 2022, and, after receiving robust oral arguments, reserved decision. The parties subsequently filed supplemental memoranda of law, which are made a part of the record before this Court. Based upon the evidence presented, the parties' arguments, prior court proceedings and documents on file with the court, this Court, by its April 27, 2022, Decision and Order GRANTED defendants' motion to suppress the loaded firearm and DENIED defendant Creary's motion to suppress his statements. That Decision and Order is recalled and replaced herein.

II. Findings of Fact

At the hearing, the People called four witness: New York City Police Department (NYPD) Sergeant Crystal Collins (Sgt Collins), formerly a police officer of the 105 Precinct; Police Officer Daniel Rodney (PO Rodney) of the 105 Precinct; Detective James Fleming (Det Fleming) of the 105 Detective Squad; and Police Officer Timothy O'Connell of the 105 Precinct. Defendants did not call any witnesses. This Court finds the testimony of all witnesses credible to the extent indicated and is summarized as follows. Issues necessitating suppression are decided as a matter of law.

Sgt Collins, an eleven-year veteran of the NYPD, testified that on December 21, 2020, at approximately 9:20 a.m., while assigned to the 105 Precinct, she responded to a radio run for menacing that allegedly occurred several hours earlier (tr at 9, lines 15-16). Sgt Collins stated that upon arriving at 219-49 141st Road, in Queens County, she spoke with Ashley, the complainant, who had called 911. Ashley reported to Sgt Collins that Brandon Creary, her ex-boyfriend, "pulled a gun on her" at approximately 4:00 a.m. (tr at 14, lines 6-25; tr at 15, lines 1-2). She further indicated to Sgt Collins that Creary then left the house in his car and his bedroom door was open. At approximately 9:00 a.m., when leaving her room, she observed Creary's bedroom door to be closed and heard his cell phone inside leading her to believe Creary was also inside (tr at 15, lines 23-25; tr at 16, line 1).

Sgt Collins testified that after Ashley provided a description of Creary's vehicle, she began to canvas the area but did not locate any vehicles matching that description (tr at 16, lines 11-22). At approximately 9:50 a.m., however, Ashley pointed out Creary's vehicle, which was across the street several car lengths from the residence. In so doing, she explicitly indicated the person asleep inside (in the driver's seat) was Creary's friend, Dylan Hamilton (tr at 18, lines 9-25).

At the same time, Sgt Collins testified that NYPD's Emergency Service Unit (ESU) was entering the premises to open Creary's bedroom door where he was thought to be located (tr at 22, lines 1-5). Nevertheless, Sgt Collins explained that because since she did not know for certain where the gun was located and tinted windows precluded her from seeing who, if anyone, was in the back seat (tr at 19, lines 9-22), she knocked on the window and instructed Hamilton to [*3]open the door for her and the other officers' safety. When he complied, Sgt Collins observed a firearm in the driver's side door pocket (tr at 20, lines 10-25) and directed PO Rodney's attention to it (tr at 50, lines 7-15). Sgt Collins removed Hamilton from the vehicle and placed him under arrest (tr at 21, lines 8-13). PO Rodney then removed the firearm from the door and handed to PO O'Connell (tr at 51, lines 1-4). PO Russo testified that being arrested, he transported Creary to the precinct, obtained his pedigree information and lodged him (tr at 100, lines 1-6).

Det Fleming testified that at approximately 4:30 p.m., at the 105 Detective Squad, he read Creary his Miranda rights, after which he obtained a videotaped statement from him (tr at 57, lines 9-11; tr at 59, lines 20-23). PO O'Connell testified that on December 21, 2020, at the 105 Precinct, he performed an inventory search of Creary's vehicle, which resulted in the recovery of several miscellaneous items (tr at 71, lines 11-25; tr at 72, lines 1-13).

A DVD of both Sgt Collins's and PO Russo's body-worn camera video recordings, as well as a DVD of Creary's videotaped interview were received in evidence without objection and played in open court.



III. Conclusions of Law
A. The Loaded Firearm

1 .The DeBour Conundrum

Initially, the People have the burden of commencing a suppression hearing by presenting evidence of probable, or reasonable, cause to show the legality of the police conduct (People v Baldwin, 25 NY2d 66 [1969]; People v Malinsky, 15 NY2d 86 [1965]). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct (People v Berrios, 28 NY2d 361 [1971]; People v Baldwin, 25 NY2d 66 [1969]).

In sustaining their burden of establishing reasonable cause, the People must demonstrate that the attendant circumstances, coupled with defendant's behavior, justified the arresting officers' intrusion. Such intrusion, of course, must comport with the four-tier approach articulated in People v DeBour (40 NY2d 210, 223 [1976]). DeBour's first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so, not necessarily indicative of criminality. The second level, the common-law right of inquiry, permits a momentary stop when there is a "founded suspicion that criminal activity is afoot" (DeBour, 40 NY2d at 223). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has been involved in criminal activity. Finally, an officer may affect a full-blown arrest when there is probable cause to believe that an individual has, is or is about to commit a crime (DeBour at 223).

Though DeBour clearly outlined four levels of street encounters, wading through its' levels has long been observed as thorny. In fact, one Justice of the Appellate Division, Second Department, commented in dissent that even her colleagues had conflated the DeBour delineations: "the majority is sanctioning a fifth level of police intrusion, somewhere between the common-law right of inquiry and the forcible stop, not justified by the DeBour analysis" (People v Abdul-Mateen, 126 AD3d 986, 992 [2d Dept 2015] [Hinds-Radix dissenting]). And while the Court of Appeals has continually upheld its use, even expanding it to encompass traffic [*4]stops (People v Garcia, 20 NY3d 317 [2012]), the High Court has acknowledged that "[t]here are no bright lines separating various types of police activity" (People v Bora, 83 NY2d 531, 535 [1994]). Some Appellate Courts have taken such criticism a step further noting that "seemingly similar face patterns sometimes result in different outcomes and lead to confusion" (People v Cartegena, 189 AD2d 67, 69 [1st Dept 1993]).

Among the issues perplexing courts when applying DeBour is where an officer is conducting a common-law right of inquiry and believes her safety is at risk. DeBour clearly limits a frisk by law enforcement to a level-three encounter. What has confounded courts is determining if, and when, police officers may take some other action during a level-one or level-two encounter to protect themselves if they fear for their safety. (See Does DeBour Permit a Fifth Level of Police-Citizen Encounter?, NYLJ, June 1, 2015, Kamins, B.). This is the issue that must be tackled.

Often cited when determining the critical, indeed indispensable, matter of officer safety is People v Benjamin (51 NY2d 267 [1980]). Authored by the same judge who penned DeBour, Former Chief Judge Sol Wachtler, it employs extensive and formidable language supporting the right of a police officer to take "due precaution for his own safety" (id. at 271). And, it is frequently cited for its poignant maxim, "[i]t would be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety" (id.). What is often overlooked, however, is that Benjamin did not extend the right to frisk to common law inquiries. Rather, it held that a "pat-down" frisk of the defendant was justified because the totality of the circumstances presented reasonable suspicion—a level-three encounter (id.).


1. Officer Safety

In the context of motor vehicle stops, an officer's request that the operator exit their vehicle is usually permitted to ensure the officer's safety (see People v Robinson, 74 NY2d 773, 774 [1989]; see also Pennsylvania v Mimms, 434 US 106 [1977]). Relying on multiple cases, particularly People v David L. (56 NY2d 698 [1982]) and People v Edwards (222 AD2d 603 [2nd Dept 1995]), the People argue that based on the totality of circumstances, it was reasonable for Sgt Collins and her fellow officers to attempt to open the driver's side door and, being locked, request that Hamilton do so. Citing David L., which held that the totality of circumstances surrounding a search must be considered when determining its unreasonableness, the Court reasoned that since opening a car door substantially lessens the degree of injury risk to a police officer, it cannot be said that the 'search' (i.e., the mere opening of a door) is unreasonable (David L. at 699). The People highlight that because expectations of privacy of a passenger in an automobile fall considerably below the expectations of privacy of an occupant of a dwelling, opening the car door was a minimal intrusion into defendants' expectations of privacy and therefore justified under the necessity of securing the officer's safety (id.).

Further relying on Edwards, the People note that here, like Edwards, Sgt Collins' conduct was reasonable due to the safety concern presented by the vehicle's tinted windows and active search for Creary. But Edwards was different. There, officers stopped a vehicle having tinted windows. During the officer's interactions with the driver, his attempts to observe the back seat passengers' activities were obstructed by the tinted windows. More importantly, that officer further observed the driver repeatedly glance back at the passengers who appeared to be moving about. This, combined with the tinted windows, justified the officer's opening of the rear door and shining in his flashlight for safety concerns. (Edwards, 222 AD2d 603).

Whilst still heavily relying on these cases, the People, for their part, recognize the salient distinction between stopping a moving vehicle for a traffic-related reason and approaching one already parked. As such, they concede that because this was not a traffic stop, they must demonstrate Sgt Collins had a founded suspicion to believe that criminal activity was afoot inside the vehicle—a level-two intrusion. But in so doing, they rely on the dubious assumption that the officers had reason to believe Creary may have been inside thus posing a danger to their safety. This possibility, the People claim, justified the officers opening the car door or having Hamilton do the same. Nevertheless, they argue that even if this Court finds otherwise, Sgt Collins still had a founded suspicion to believe that criminal activity was afoot inside the vehicle—a claim the record simply does not support.



2. Parked Vehicles

Under the first level of DeBour, the right to approach a parked car is analogous to the right to approach a citizen on the street to request information. Thus, an officer may approach a parked car for an objective, credible reason, not necessarily indicative or criminality (People v Harrison, 57 NY2d 470, 475-476 [1982]; People v Karagoz, 143 AD3d 912, 913 [2d Dept 2016]). The difference is that where the vehicle has not been lawfully stopped but rather legally parked, confining a person inside no matter how temporary represents the constitutional equivalent of a stop (see People v Spencer, 84 NY2d 749, 753 [1995]). Such a stop has been held to include even asking an occupant to "place their hands where they could be seen for officer safety" (People v Clay, 147 AD3d 1499, 1500 [4th Dept 2017]). Likewise, a police officer's order to exit a lawfully parked vehicle is of a similar nature and must be considered the legal equivalent of a stop (see Clay, 147 AD3d 1499; see also People v Creary, 61 AD3d 887 [2d Dept 2009]). This, therefore, triggers a level-two intrusion, which requires a founded suspicion that criminal activity is afoot. If an officer escalates the encounter by restraining the occupants of the car, the individuals have been "seized," and the officer's action must then be based on reasonable suspicion (a level-three intrusion).

Defendants contend that since the vehicle was lawfully parked, Sgt Collins' attempt to open the door or request that Hamilton do so was unjustified because there was no evidence of suspected criminality either by Hamilton or others inside the vehicle. In support, Defendants heavily rely on the Second Department's decision in People v Eugenio (185 AD3d 1050 [2d Dept 2020]). There, officers observed the defendant unconscious behind the wheel of a parked car with the engine running. The officer approached the driver's side of the vehicle and observed him hunched over the steering wheel. The officer repeatedly knocked on the window to wake the defendant. Upon waking, he directed defendant to open the door and exit the vehicle (id.). The Court held that "where a vehicle is lawfully parked on the street, and neither it nor its occupant is under any restraint, and the police have no grounds to suspect the occupant of criminality at that point, requesting the occupant to step out of the vehicle creates a new, unauthorized restraint" (id. at 1051). "Thus, an officer's directive to a defendant to exit a lawfully parked vehicle must be based upon a 'reasonable belief that [the] defendant was, in fact, 'involved in criminal acts' or that he 'posed some danger to the [officer]" (id. at 1052, citing People v Larkin, 62 Misc 3d, 66-67 [App Term, 2d Dept, 9th & 10th Jud Dists], quoting Creary, 61 AD3d at 889; see People v Hollman, 79 NY2d 181, 185 [1992]).

Here, as in Eugenio, upon observing Hamilton sleeping behind the wheel of a parked car—identified as belonging to Creary—Sgt Collins had an objective, credible reason not [*5]necessarily indicative of criminality to approach, an undisputed proposition. This authorized her to request basic information from Hamilton (i.e., questions concerning the driver's identity, address, and destination) (Karagoz, 143 AD3d 912; People v Ocasio, 85 NY2d 982 [1st Dept 2011]). Ashley identified the sleeping occupant to Sgt Collins as Hamilton, Creary's friend. She also informed Sgt Collins he was not the person who had earlier menaced her with a gun. Nevertheless, without requesting any information from him, Sgt Collins knocked on the driver's side window then attempted to open the door. When discovering they were locked, she immediately directed defendant Hamilton to unlock the doors, triggering the second level of Debour. As such, it required a "reasonable belief that defendant was, in fact, involved in criminal acts or that he 'posed some danger to the [officers]'" (Eugenio, 185 AD3d 1050, 1051). In other words, at the time Sgt Collins attempted to open the door, what mattered was whether Hamilton was involved in any criminality—not Creary.


3. Criminal Activity Afoot

A meticulous review of the copious testimony elicited both on direct and cross-examination reveals it is entirely devoid of even a hint that Hamilton either posed a danger to the officers or was engaging in any criminal acts. In fact, both Sgt Collins and PO Rodney independently testified that they had no reasonable belief Hamilton, or Creary's vehicle were actively involved in or being used as an instrument of criminality.

Q: Did Ashley tell you that that was not Mr. Creary in the car?

A: Yes.Q: As far as you know, was the car involved in any crime whatsoever?A: As far as I know, the owner of the vehicle was in possession of a firearm a few hours earlier.Q: But as you approached the car you had no information that the car was an instrumentality of the crime?A: The only thing I knew is that it was Brandon [Creary]'s vehicle.Q: Did you have any information that there was any evidence of a crime inside the car?A: Can you restate the question.Q: Did you have any information that there was any evidence of crime inside the car?A: No.

(Collins Cross - tr at 26, lines 12-25; tr at 27, lines 2-9)

Q: As far as you know, Sergeant Collins, Dylan [Hamilton] wasn't wanted for any crime that you know of before you approached the vehicle? A: No.

(Collins Cross - tr at 28, lines 19-22)

Q: The only information that you had about this car which didn't match the description of the initial description by Ashley, the only information that you had was that it was an individual who was sleeping in the car, right? A: Yes.Q: He was not a suspect, right?A: No.Q: You have no information that there was a gun in the car, did you?A: No.

(Collins Cross - tr at 33, lines 1-14)

Q: Did you have any information that the person sitting in the car was a suspect? A: No.Q: Did you have any information that there was any evidence of a crime inside the vehicle?A: No.

(Rodney Cross - tr at 51, lines 18-23)

As for Creary, the People argue that because Sgt Collins and her team did not know where he was, her belief that approaching his vehicle posed some danger to them was reasonable. But this is belied by the testimony indicating that, if anything, they had a reasonable belief Creary was located inside of the house.

Q: When Ashley called for the police to come back to the house at 9:20 a.m., did she tell you whether she physically saw or heard Brandon Creary? A: She didn't physically see him.Q: Did she tell you that she heard anything?A: Yes.Q: What did she hear?A: She heard his cell phone ringing in his room.Q: Did she tell you whether the doors in the room were open or closed at the time?A: She said the door was closed.Q: Did she tell you whether the door was open or closed when he left the home at four a.m.?A: Yes, she said the door was open.

(Collins Direct - tr at 17, lines 12-25)

Q: Did she say whether anyone was inside the vehicle that she observed?

A: Yes.Q: Did she say whether it was Brandon or not Brandon?A: She said it was not Brandon [Creary].

(Collins Direct - tr at 18, lines 17-21)

Q: When you could be seen in the body worn camera, I think around 9:48 a.m. you saw what appeared to be people holding shields walking down the driveway of the location, who were those people? A: Emergency service unit.Q: What were they there to do?A: To open the door where Brandon [Creary] was suspected to be.[emphasis added]Q: While they were going back there to do that, is that the time you guys were walking toward the car that the victim identified as being Brandon's?A: Yes. (Collins Direct - tr at 22, lines 21-25; tr at 23, lines 1-6) Q: I want to go to your concern for your safety. You said that's why you wanted to open the door, correct? A: Yes.Q: As you approached the vehicle you did know ESU was approaching the house, correct?A: Yes.Q: Did you voice your concern for your safety to ESU?A: No.Q: Did you voice your concern for your safety to any of your fellow officers?A: It happened so fast, no.Q: Did you see Officer Rodney, I believe his last [sic] name is D A N I E L, did you see him on the footage we just watched put his face right up on the tinted glass of the rear glass of the rear driver's side door? Did you see that?A: Yes.Q: Did you as your fellow officer, did you warn him not to do that?A: No.Q: By the way, you pull on the car handle of the door initially, correct?A: Yes.Q: Let's pause this for a second. You said you were concerned for your safety?A: Yes.Q: If the door was open and you pulled it and it flew open, you could have been shot, right?A: YesQ: But you pulled it open anyway?A: Yes.

(Collins Cross - tr at 27, lines 14-25; tr at 28, lines 1-18)

Q: But that that time you didn't feel concern for your safety, correct?

A: Correct.Q: Do you see ESU approaching?A: Yes.Q: At that point did you approach the vehicle yet?A: No.Q: You know ESU was going into actually look for Brandon Creary, correct?A: Yes.

(Collins Cross - tr at 30, lines 2-4, 8-14)

Q: When you were told to approach the vehicle, which you admitted didn't match the description which you had before, right? A: Yes.Q: Then the individual in the vehicle was asleep, right?A: Yes.Q: That was Mr. Hamilton that you saw in there, right?A: Yes.Q: Mr. Hamilton was not a suspect in any crime, was he?A: No.Q: Mr. Creary. You admit there was no one else, no other passenger in the car. Mr. Creary was not there, correct?A: From what I saw at that moment, no.Q: Mr. Creary was the subject of a swat team search, invasion, search and seizure, whatever the operation would be called, but he was in his apartment; is that correct?A: Yes.Q: It's a fact that Mr. Creary lived in the same building as Ashley?A: Yes.

(Collins Cross - tr at 32, lines 6-25)

This testimony clearly demonstrates that while Creary's vehicle was lawfully parked on the street, he was believed to be inside his residence. But as the Emergency Services Unit (ESU) was approaching the house to extract him from inside, Sgt Collins and her team were heading [*6]toward his vehicle in which his friend—not suspected of any criminality—was sleeping. While this Court has no doubt that at that moment, the officers' may indeed have felt their safety was at risk, it is simply not supported as a matter of law. Had they questioned Hamilton before attempting to open the door, and subsequently observed him engage in any additional conduct that would have heightened their suspicion, perhaps it may have been justified. But that did not happen.

Nor was it reasonable to suspect criminal activity was actively afoot inside Creary's vehicle while responding to a radio run for a crime allegedly committed occurred hours earlier. Of course, it was possible both Creary and the gun were inside. And from a practical perspective, it was not unreasonable for officers to investigate there. But this, too, is unsupported as a matter of law given that the testimony demonstrates it was more likely he was in the house, not in the car.



Q: This was five hours after the initial 911 call which was at about 4:00 a.m., right? A: Yes.

Q: Actually almost six hours, right?

A: About, yes.Q: And as far as you knew Mr. Creary was probably in the apartment which was thesame building where the swat team was going up, right?A: Yes. Q: You know — I believe you testified on cross or direct before, I think direct, that you didn't see any passengers in the car other than Dylan Hamilton sleeping in the drivers seat, correct? A: Yes.Q: Again he was not a suspect, was he?A: No.

(Collins Cross - tr at 41, lines 2-17)

Q: Officer Rodney, do you recall how long after the initial call for the family assault that you and your fellow officer opened the door to the car that Mr. Hamilton was sleeping? A: Which call? Because the first call was on the midnight tour so the call that I responded to was a perp from the past, meaning the perpetrator had come back to the scene.Q: Do you know if the initial call was made approximately six hours prior to the time you ordered Mr. Hamilton out of the car?A: I can't say I know the exact time when it was made, I just know it wasn't on my tour.Q: And your tour started at 7:05; correct?A: Correct.

(Rodney Cross - tr at 52, lines 4-10; 17-23)



[*7] 4. Automobile Exception

The People also rely on the automobile exception to justify the officers' intrusion into Creary's vehicle. Generally, there are two situations where the automobile exception applies: 1) when probable cause to search exists independent from an arrest, and 2) when there is a nexus between the probable cause to search and the arrest. The first, where officers acquire probable cause independent from an arrest, normally occurs when an officer approaches a vehicle without a basis to arrest but during such approach observe evidence of criminality giving them probable cause to search the vehicle. For example, when officers observe a quantity of drugs, a weapon, or evidence of a crime in plain view, they gain probable cause to search the entire vehicle including any closed or locked containers attached to the outside of a vehicle (see United States v Ross, 456 US 798 [1982]; People v Francois, 138 AD3d 1165 [3d Dept 2016]; People v Dixon, 107 AD3d 530 [1st Dept 2013]; People v Howard, 81 AD3d 404 [1st Dept 2011]; People v Jamison, 265 AD2d 198 [1st Dept 1999]; People v Britz, 239 AD2d 428 [2d Dept 1997]; People v Bonilla, 199 AD2d 519 [2d Dept 1993]; People v Peterson, 173 AD2d 574, [2d Dept 1991]).

This exception also applies where a nexus is established between the probable cause to search a vehicle and the crime for which an arrest is being made. In this scenario, a vehicle may be searched without a warrant if there is probable cause to believe it contains evidence of the offense for which the defendant is being arrested. (Davis v United States, 564 US 229, 235 [2011]; Arizona v Grant, 556 US 322, 351 [2009]; People v Blasich, 73 NY2d 673 [1989]; People v Singletary, 156 AD3d 731 [2d Dept 2017]; People v Washington, 108 AD3d 578, 579 [2d Dept. 2013]).

Neither scenario applies here. Sgt Collins and PO Rodney both testified they observed no evidence of criminality. Only until after having exposed an area of the vehicle not otherwise readily observable from outside did they observe the firearm. Nor did they have probable cause to search Creary's vehicle because all they were entitled to do vis-à-vis Hamilton was conduct a level-one inquiry. Even assuming the People are correct that criminal activity was afoot, which they are not, absent additional circumstances escalating to a level-three intrusion, the automobile exception is inapplicable.



A Fifth Level

Standing in a slide zone, I could be steppin' in a slide zone

The Moody Blues, a 1960s art rock band (an eclectic fusion of classic and progressive rock), released the 1978 hit single "Steppin' in a Slide Zone", the first after taking a temporary hiatus. Since then, efforts to understand its lyrics has been elusive. Some suggest it documented their experience after reuniting, others are convinced its main lyric refers to the classic 1929 board game, "Sorry", which consists of regular zones, saw zones, slide zones—even a safety zone. Stepping in a slide zone, though, had consequences. Could it have been a metaphorical reference to the group's movement into unfamiliar territory upon reunifying? Perhaps. Still, some observers believe the lyrics are nothing more than a shallow, meaningless, almost psychedelic illusion.

Of course, it is unlikely former Second Department Justice Sylvia Hinds-Radix, now the City's Corporation Counsel, had the Moody Blues in mind when suggesting courts may have created a "fifth level" between the common-law right of inquiry and the forcible stop not contemplated under the DeBour analysis" (Abdul-Mateen, 126 AD3d at 992). But it hardly matters. What matters is after nearly five decades of DeBour's application, we are no closer to [*8]effectively distinguishing the "bright lines" separating the various zones of police activity between that which is permitted and that which is not. And yet, we incessantly endeavor to do so. But the clarity we so relentlessly pursue has become seemingly more elusive. If anything, DeBour's enigmatic uncertainty has descended into a psychedelic fusion of confusion.

The slide zone here is what action an officer may take when she reasonably believes her safety is at risk. More specifically, may an officer take some other action during a level-one or level-two encounter to protect herself if she fears for her safety? And, as noted, upon a defendant's subsequent challenge of the permissible extent of such action, the People must establish it was justified in view of the circumstances presented (Benjamin, 51 NY2d at 270, citing People v Lypka, 236 NY2d 210 [1975]). This can be done by demonstrating the information conveyed to the officers was so specific and congruous to what they encountered that its reliability could have been assumed (Benjamin at 270, citing Draper v United States, 358 US 307 [1959]; People v Kinlock, 43 NY2d 832 [1977]).

Here, the complainant identified Creary's lawfully parked vehicle to officers but specifically indicated its occupant was not Creary. In fact, she stated it was Hamilton, defendant's friend, whom officers had no reason to believe was engaged in any criminal activity. Nor did they suspect any criminality inside. On this information, a level-one inquiry would have been permitted; attempting to open the door, or directing Hamilton to do so, however, was not. Observing the gun was therefore problematic because it exposed an area of the vehicle not otherwise readily observable from the outside, which constitutes a search within the meaning of the Fourth Amendment (People v Young, 207 AD2d 465, 466 [2d Dept 1994]; see People v Class, 67 NY2d 431 [1986]; People v Aquino, 119 AD2d 464 [1st Dept 1986]). Simple—if this were all that had transpired. But it is not.

Officers responded to Creary's home because the complainant reported that several hours earlier, he had threatened her with a gun. They knew he had left the house in his car and his bedroom door was open. They knew his bedroom door was now closed and his cell phone could be heard inside. Thus, it was reasonable to surmise he was too, which is why ESU responded. But since it is the duty of law enforcement officers to investigate, locate and apprehend suspected perpetrators, under these circumstances so was looking for him inside his vehicle.



Reconciling whether the totality of these circumstances constitutes a level-one common-law right to inquire or level-two criminal activity afoot is arduous, if for no other reason than ascertaining whether a several hour delay, by itself, vitiates criminal activity being "afoot." Exacerbating this is that officers did not know with certainty whether Creary was inside his room, his vehicle or even if he was still there. Insert officer safety and it becomes categorically confounding—a paradoxical quandary of sorts. If this is true for those of us in the courtroom, how much more so is it for those in squadroom? Why, then, do we compel officers to solve a metaphysical Rubik's Cube on the street?

As noted, the last thing DeBour's and Benjamin's author wanted was to have an officer see that proverbial "glint of steel" before deciding how to act. Yet, with decades of application and interpretation, their inherent rigidity continues to yield consternation and confusion. Still, DeBour and its progeny quite clearly require the firearm's suppression. Simply put, as a matter of law, officers neither suspecting an occupant of a lawfully parked vehicle of engaging in criminal activity nor possessing information of other criminality inside are limited to a level-one inquiry. Period. But what practical guidance does this offer? Why do we employ a "totality of the circumstances" standard to determine whether a "pat-down" frisk is permitted with reasonable [*9]suspicion but not less? Why is their safety at a lesser premium during a common-law right to inquire than it is when criminal activity is afoot? And why must they engage in mental gymnastics to figure it out in seconds? A psychedelic fusion of confusion—Standing in a slide zone, we could be steppin' through a time zone.



Creary Interview

Fundamental to American jurisprudence is the precept that any custodial interrogation conducted by law enforcement agents must be preceded by the warnings enunciated by the Supreme Court of the United States in Miranda v Arizona, 384 US 436 [1966]. In other words, police must inform a person in custody of his right to remain silent and to have an attorney present during any questioning or other action designed to elicit, directly or indirectly, an incriminating statement (id.). A suspect may, of course, waive his Miranda rights by voluntarily, knowingly, and intelligently relinquishing them after having been made aware of them (People v Anderson, 42 NY2d 35 [1977]; People v Leonti, 18 NY2d 384 [1966], cert denied 389 US 1007 [1967]; People v Medina, 123 AD2d 331 [2nd Dept 1986]). Conversely, a spontaneously volunteered statement, meaning a statement that is self-generated without any external prompting, will be admissible even though the defendant was in custody, and unwarned or improperly warned (People v Dunn, 195 AD2d 240 [2d Dept 1994]).

The burden, however, of establishing the voluntariness of a suspect's statement beyond a reasonable doubt at a Huntley hearing is on the People (People v Holland, 48 NY2d 861 [1979]; Anderson, 42 NY2d 35; People v Huntley, 15 NY2d 72 [1965]). Generally, the test for determining voluntariness is the "totality of the circumstances" standard (United States v Bye, 919 F2d 6 [2nd Cir 1990]; Terry v LeFevre, 862 F2d 409 [2nd Cir 1988]; Anderson, 42 NY2d 35). Among the circumstances to be weighed are interrogation techniques such as physical abuse (see Anderson at 35), psychological pressure (Davis v North Carolina, 384 US 737 [1966]; see also Arizona v Fulminante, 499 US 279 [1991]; Blackburn v Alabama, 361 US 199 [1960]), food or sleep deprivation (Ashcraft v Tennessee, 322 US 143 [1944]; Greenwald v Wisconsin, 390 US 519 [1968]) and promises of immunity or payment (People v Dunbar, 53 NY2d 868 [1981]; People v Urowsky, 89 AD2d 520 [1st Dept 1982].

Here, the People clearly established through the video-recorded interview of defendant that his statements were made after having been properly advised of his Miranda rights, and knowingly and voluntarily waiving them. While this Court suppressed the firearm as having been obtained without probable cause, it notes that Creary's arrest for menacing in the second degree (PL 120.14 [1]) was predicated on the complainant's allegations not recovery of the firearm. As such, it was otherwise lawful.

Creary's claim, then, that his statements made during the interview should be suppressed as because the sole basis for obtaining his statement was triggered by the firearm's recovery is unpersuasive. Nothing in either law or fact that would have precluded officers from obtaining a statement from Creary on the menacing charge alone.

Moreover, the record reflects that at no time did any member of the NYPD present make any promises, representations, or commitments to him, nor is there any factual basis to conclude he was threatened, forced, or compelled to say or do anything in response to any of the officers. And Creary advances no credible argument suggesting otherwise. Creary's motion to suppress his recorded interview is therefore denied.



IV. Conclusion

Accordingly, this court finds that viewing the evidence in the light most favorable to the [*10]People (see People v Williams, 84 NY2d 925 [1994]; see also People v Contes, 60 NY2d 620 [1983]), they have not satisfied their burden of demonstrating that defendant Hamilton's arrest or recovery of the firearm as to both Creary and Hamilton were lawful, but satisfied their burden demonstrating Creary's arrest on the charge of menacing in the second degree and subsequent statement were lawful. Defendants' motion to suppress the loaded firearm is GRANTED; defendant Creary's motion to suppress statements is DENIED.



This constitutes the decision and order of the court.

Dated: May 5, 2022

David J. Kirschner, J.S.C. Footnotes

Footnote 1:This hearing continued on March 1, 2022, March 8, 2022, and March 11, 2022.