People v Alberto

[*1] People v Alberto 2022 NY Slip Op 50845(U) Decided on August 29, 2022 Supreme Court, Kings County Konviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 29, 2022
Supreme Court, Kings County

The People of the State of New York

against

Andre Alberto, Defendant.



Ind. No. 8226/17

Appearing on behalf of the Defendant: Robert Reuland, Esq., 26 Court Street, Brooklyn, NY 11201

Appearing for the People: Assistant District Attorney Matthew Midey. Kings County District Attorney's Office, Homicide Bureau, 350 Jay Street, Brooklyn, NY 11201 Jill Konviser, J.

On March 11, April 21, April 22, and July 6, 2022, this Court conducted a combined Dunaway, Mapp and Huntley hearing. Sergeant Michael Hain, Police Officer Aristotle Koustoubardis, and Detective Alejandro Manzano testified for the People. The defendant did not present any evidence. The parties each submitted informal letter briefs after the hearings. The defendant's motion is granted in part and denied in part. The Court credits the testimony of the People's witnesses and makes the following findings of fact and conclusions of law.

Findings of Fact

Sergeant Michael Hain testified that he has been employed by the New York City Police Department ("NYPD") for approximately 20 years, currently assigned to Brooklyn South Homicide. On October 12, 2017, he was supervising an investigation into the homicide of Ramon Ortiz that had occurred at 3:45 am that morning within the Gowanus Houses, a New York City Housing Authority (NYCHA) Development, located in Kings County. At approximately 12:30 pm Sergeant Hain was with several detectives at the Gowanus Houses in the vicinity of where the homicide had occurred, conducting video and witness canvasses. At that time "there were a group of civilians maybe 20 or 30 feet away from [them], and [he] heard a woman say: 'that's him, he's getting away, grab him'" (Tr. 7/6/22 at 8). He observed some of the individuals from the group begin to chase after "him," an individual whom Hain identified in [*2]court as Andre Alberto, the defendant. "[T]he group was chasing the defendant and [Sergeant Hain] was chasing the group." (Tr. 7/6/22 at 19). The group ultimately caught up with the defendant, at which point, the same woman whose voice Hain had heard earlier, became engaged in a "physical altercation with [the defendant] tussling, pulling back and forth at each other." (Tr. 7/6/22 at 9). Sergeant Hain testified that he "tried to break up the fight, at which point the [defendant] slipped out of a hoody that he was wearing and began to run away." (Tr. 7/6/22 at 9). Sergeant Hain chased the defendant and "with the assistance of Detective Kyrkos, who was able to apprehend the [defendant] [they] went to the ground, [they] were fighting for his hands at which time [Hain] heard Detective Kyrkos yell out that there was a gun." (Tr. 7/6/22 at 10). After the defendant was handcuffed, Sergeant Hain recovered the gun, covered in a red bandana, from where he had observed it, in the defendant's waistband.[FN1] Upon hearing the woman say words to the effect of "that's' him, he's getting away, grab him" Sergeant Hain, who subsequently observed a physical altercation between the woman and the defendant, believed that the defendant had perpetrated a crime against her. Sergeant Hain testified that he "didn't have time to stop and call a time-out, interview everybody to find out exactly what was going on." [FN2] (Tr. 7/6/22 at 16). Hain pursued the defendant in order to "stop him, place him temporarily into custody." (Tr. 7/6/22 at 16). Sergeant Hain transferred the defendant to Police Officer Koustoubardis's custody for transport to the 76th Precinct and took the gun to the 76th Detective Squad where he gave it to the case detective, Detective Manzano.

Police Officer Aristotle Koustoubardis testified that he has been employed by the NYPD for approximately 10 years and is currently assigned to the Firearms and Tactics Section. On October 12, 2017, he was assigned to the 76th Precinct as a patrol officer. At 12:30 pm that day he was in a marked police car, in uniform, on a fixed post at the Gowanus Houses in Brooklyn with his partner Police Officer Saleh. They responded to a report of a large group fighting, at which time Koustoubardis saw detectives taking an individual he later learned to be Andre Alberto into custody.[FN3] Koustoubardis transported Alberto to the 76th Precinct with Saleh. Neither officer spoke to him, made any promises or threats, and Alberto did not say anything to them.

Detective Alejandro Manzano testified that he has been employed by the NYPD for about 14 years and is currently assigned to the Gun Violence Unit. On October 12, 2017, he was assigned to the 76th Precinct Detective Squad and was assigned the homicide case of Ramon Ortiz that had occurred at 3:45 am that morning in the rear of 218 Bond Street within the Gowanus Housing Development. At approximately 12:30 pm he learned that two individuals had been apprehended by Sergeant Hain and that one was in possession of a firearm. [FN4] At approximately 12:45 pm Manzano took custody of Alberto, whom he identified as the defendant at the hearing, and lodged him in the holding cell while he completed some paperwork. He was [*3]also handed a firearm from Sergeant Hain.

At approximately 2:00 pm Detective Manzano brought the defendant, uncuffed, from the holding cell into a small interview room where they took seats on opposite sides of a table.[FN5] The defendant had a bottle of soda with him and was provided cigarettes.[FN6] Detective Perry from Homicide entered the room with a third chair and took a seat at the table next to Manzano. At 2:04 pm Detective Manzano read the defendant Miranda warnings from a card. The defendant responded "yes sir" to each question and ultimately agreed to speak to them.[FN7]

After the administration of Miranda by Detective Manzano, almost the entirety of the questioning was conducted by Detective Perry. The detectives were seated extremely close to the defendant throughout the interview with Detective Perry often leaning forward toward him before ultimately moving his chair around to the head of the table right next to him. The defendant appeared to be upset and was crying when the questioning first began and at various times throughout the video - as a result, he was difficult to understand. In the first few minutes, through tears, the defendant told Perry that he was only 17, that he was the only one to care for his mother as she does not work and is unable to walk. In response Perry told him repeatedly that he needs to "tell [him] what happened" that he needs to be there for his mother and that "she would want him to help himself out." Thereafter the defendant's mother and "helping himself out" became overriding themes of the interrogation. Detective Perry continually brought up the defendant's mother and indicated that he was going to tell her everything and show her the video. "What is she going to say?" asked Perry. Perry told the defendant said he would tell his mom that "her son came to him and he's an honest boy and we're going to help him out because he's young and there's always a reason why." As the defendant continued to cry, Detective Perry asked the defendant if he needed/wanted anything, including more to drink or a cigarette, but the defendant indicated he "smoked weed."[FN8] The defendant also told the detectives that the last time he spoke to an officer they tried to "switch his words." Perry responded that he's not telling the story, rather he was there to hear the defendant's story. Perry further made plain that the defendant's "boy, Noel" was also arrested and it would be a good idea not to let Noel tell the defendant's side of the story. Noel, Detective Perry said, "was talking." Perry also warned the defendant that if he did not want to talk that he would then have to "deal with the consequences."

Detective Perry weaved between variations of: the defendant had to tell his side of the story; the defendant should think about his mother, including seeing her again; the defendant was not thinking about his mother; he should tell them what happened out of respect for her, and not let her find out he had the opportunity to tell his side of the story and did not, so they couldn't help him; and, not let someone else - Noel — tell the defendant's side of the story. The detectives kept at it: not talking was a stupid mistake; talk, you'll feel better; this is the time to take care of/help yourself; don't think too much, help yourself out. The Court counted more than 40 [*4]variations of the above questions/statements, addressed to a 17-year-old in the custody of two seasoned detectives hovering over him and questioning him about a homicide. So, too, the defendant was told he could call his mother "when they were done here" and only when he "tells [them] what happened ...".

After all the prodding, about an hour into the interrogation the defendant started to discuss what happened, indicating that he had previously been robbed and beaten up and that he didn't mean for anyone to get hurt. The defendant subsequently asked if he could write down his words.[FN9] The defendant ultimately described the circumstances of the shooting and admitted that the gun he used in the shooting was the same gun he was caught with that day. A few minutes later, after the defendant confessed, Manzano brought him a slice of pizza.[FN10]

Conclusions of Law

The Court fully credits the testimony of Sergeant Michael Hain, Police Officer Aristotle Koustoubardis, and Detective Alejandro Manzano.

Dunaway

The People have met their burden of demonstrating that the police had probable cause to arrest the defendant.

The Initial Chase and Detention

Pursuant to Criminal Procedure Law Section 140.50, a police officer may stop an individual when the officer reasonably suspects that the individual has committed a crime. See Terry v. Ohio, 392 U.S. 1 (1968); People v. DeBour, 40 NY2d 210 (1976); People v. Cantor, 36 NY2d 106 (1975). A court, in determining whether a police officer has reasonable suspicion, must focus on a common-sense evaluation of the events leading to the individual's detention. See People v. Hicks, 68 NY2d 234 (1986). To be sure, reasonable suspicion to stop, frisk and detain a defendant exists when police observe an individual being chased on the street for reasons unknown. People v. Espada, 199 AD3d 499 (1st Dept 2021) (officer could have drawn a logical inference, at least for purposes of reasonable suspicion, that the store employee was chasing a suspected shoplifter); see also People v. Sierra, 83 NY2d 928 (1994).

In the instant matter, Sergeant Hain heard a woman yell: "that's him, stop him, he's getting away" and observed a group chasing the defendant. (Tr. 7/6/22 at 15). While Sergeant Hain did not know precisely what the woman meant, he began to follow the group as they chased the defendant. And, when he observed the defendant engage in a physical altercation with the woman and then flee, he reasonably continued pursuit. Subsequently, upon reaching the defendant and struggling with him, he heard Detective Kyrkos yell "gun."[FN11] Under the totality of the circumstances, Sergeant Hain had reasonable suspicion to chase and detain the defendant [*5]until he could ascertain what was going on.

Probable Cause

Once the defendant was lawfully detained, reasonable suspicion ripened into probable cause to arrest the defendant based upon the officers' observations and recovery of the gun. Thus, the People have met their burden of demonstrating that the police possessed probable cause to arrest the defendant.

Mapp

The defendant moves to suppress the firearm recovered from his person. As the Court has already held that the police acted lawfully in chasing after and stopping the defendant, and, as the gun was discovered during the temporary detention of the defendant based on that reasonable suspicion, the recovery of the gun from the defendant's waistband was also lawful. Accordingly, defendant's motion to suppress the gun is denied.

Huntley

Post-Miranda Video Recorded Statement

The defendant moves to suppress a post-Miranda video recorded statement that he made to Detectives Perry and Manzano on the day of his arrest. Although the uncontradicted hearing testimony and the video recording establish that the defendant was adequately advised of his Miranda rights and waived them, see Miranda v. Arizona, 384 U.S. 436 (1966); People v. Anderson, 146 AD2d 638 (2d Dept. 1989), as the defendant's will was overborne by the police conduct, the People have failed to establish that the video recorded statement was voluntarily made.

Here, a 17-year-old defendant was placed in a small room, with two experienced detectives seated menacingly close to him, one of whom moved even closer as the interrogation progressed. For over an hour the defendant, who repeatedly asked for his mother, was told: "to help himself out;" that he could call his mother when he "tells [them] what happened ;" that the co-defendant was talking; there were consequences for not talking; that his mother was going to find out what he did and that she would know he had been given a chance to tell his story and missed the opportunity. Not insignificantly, the 17-year-old defendant was crying throughout and not provided with food until after he confessed, even though he said he had not eaten for two days. Detective Perry's repeated statements about the urgent need to tell him what happened and about not wanting his mother to learn that he was given an opportunity to tell his story and refused, improperly implied to the defendant that the interrogation would be his "only opportunity to speak." People v Marrero, 199 AD3d 1471, 1473 [4th Dept 2021]); lv denied 34 NY3d 929 (2022); citing People v. Dunbar, 24 NY3d 304, 316 [2014]); (internal quotation marks omitted). Furthermore, Perry's advice that providing an explanation of what happened to help himself out, effectively "implied that . . . defendant['s] words would be used to help [him], thus undoing the heart of the warning that anything [he] said could and would be used against [him]" Marrero, supra; citing Dunbar, supra; see People v Alfonso, 142 AD3d 1180, 1181, (2d [*6]Dept 2016), lv denied 29 NY3d 946 (2017). The detectives further preconditioned the defendant's ability to speak to his mother on his telling them what happened, insinuating that he had no choice but to confess in order to speak to her.

While the use of psychological pressure and trickery by law enforcement in some instances is not prohibited, the extent and the nature of the tactics used in this case were excessive. Accordingly, the Court finds that the totality of the circumstances of the interrogation resulted in the defendant's will being overborne. The video statement was involuntarily obtained and must be suppressed.

The Letter

The defendant also moves to suppress the post-Miranda letter/statement that he made after the video statement. For the reasons previously discussed, the Court finds that the written statement, captioned as a letter to his family, was not voluntarily made as his will was overborne by the interrogation for which there was no attenuation. Indeed, the letter was prepared in the same location, immediately following the interrogation and involved the same officers.

Accordingly, the defendant's motion to suppress the post-Miranda video recorded statement and the letter must be granted.

Conclusion

The defendant's motion is granted in part and denied in part as discussed supra. This constitutes the Decision and Order of this Court.

Dated: Brooklyn, New York
August 29, 2022

____________________________
J.S.C. Footnotes

Footnote 1: Sergeant Hain identified a photograph of the firearm that was introduced as People's 2 at the hearing.

Footnote 2: At the time he initially started chasing the group that was chasing the defendant, Sergeant Hain was unaware that the defendant was a suspect in the homicide he was investigating. He subsequently learned that the woman who had been yelling, chasing and ultimately tussling with the defendant, was the sister of the decedent.

Footnote 3: Officer Koustoubardis did not identify the defendant at the hearing, but indicated that the individual he took custody of, transported, and lodged was named Andre Alberto.

Footnote 4: Noelvis Hernandez, a friend of the defendant's, was also arrested for his involvement in the homicide.

Footnote 5: A DVD of the interview was introduced as People's 1 at the hearing.

Footnote 6: Shortly thereafter, the defendant indicated he had not eaten in two days. He was provided pizza, but only after he confessed.

Footnote 7: The defendant asked the detective to re-read the fourth question concerning his ability to remain silent until he had the opportunity to consult with an attorney. The question was re-read and the defendant indicated that he understood and he agreed to speak.

Footnote 8: The defendant subsequently asked for and was provided with a cigarette.

Footnote 9: A copy of "his words," in the form of a letter addressed to his Mom, Dad and Sal was introduced as People's 3 in Evidence at the hearing.

Footnote 10: Although, earlier, the defendant indicated he had not eaten in two days, the detectives did not provide any food until after the confession.

Footnote 11: After handcuffing the defendant, Sergeant Hain recovered the gun from the defendant's waistband.