Opinion
3516-2018
09-26-2019
PEOPLE of the State of New York, Plaintiff, v. Robert FLIPPEN, Defendant.
For the People: Chow Yun Xie, Esq., Kimberly Seabrooks, Esq., Kings County District Attorney's Office For Defendant: Eric Shapiro Renfroe, Esq., Christopher Renfroe, Esq.
For the People: Chow Yun Xie, Esq., Kimberly Seabrooks, Esq., Kings County District Attorney's Office
For Defendant: Eric Shapiro Renfroe, Esq., Christopher Renfroe, Esq.
Joanne D. Quiñones, J.
The defendant is charged with Murder in the Second Degree, in violation of Penal Law (PL) section 125.25(1), and other related charges stemming from an incident that allegedly occurred on May 4, 2018. On July 24 and July 25, 2019, this court conducted a combined Dunaway /Mapp /Huntley hearing. The People presented seven witnesses at the hearing. The defendant did not present any witnesses.
I make the following findings of fact and conclusions of law:
FINDINGS OF FACT
Amy Lowe has been an investigator with the New York City Department of Corrections for approximately eight years (Hearing Transcript [Tr] at 7). Ms. Lowe testified credibly that she is a custodian of inmate records and recordings (Tr at 7). In that capacity, she reviewed a phone call made on September 28, 2018 at 5:58 PM under the unique booking number assigned to Robert Flippen (Tr at 8). A copy of the redacted phone call was entered into evidence as People's No. 1.
Police Officer Travis Gibson testified credibly that on May 5, 2018 at approximately 7 AM, he was with his partner, Officer Luisjune, on the 10th floor hallway of 333 Schermerhorn Street and was instructed to wait for Robert Flippen, later identified as the defendant, to return home to apartment 10M (Tr at 17-18). At the start of his tour, Officer Gibson had been shown a photograph of the defendant (Tr at 18-19). The photograph was entered into evidence as People's # 3. Officer Gibson was further instructed that if he saw the defendant, he was to apprehend him for a homicide (Tr at 19). At approximately 7:05 AM, Officer Gibson observed the defendant exit the elevator with an unknown female (Tr at 19). After confirming that his name was Robert Flippen and that he lived in apartment 10M (Tr at 19-20), Officer Gibson apprehended the defendant and then transferred him into the custody of Detective Gonzalez and Officer Perez (Tr at 20-21).
Officer Reynaldo Gonzalez testified credibly that on May 5, 2018 at approximately 7:05 to 7:10 AM, he was notified to respond to 333 Schermerhorn Street (Tr at 23-24). When he arrived, he observed the defendant with Officers Luisjune and Gibson (Tr at 24). Officer Gonzalez then took the defendant and transported him to the 84th Precinct (Tr at 24-25). A search of the defendant at the precinct resulted in the recovery of a knife from his right front pocket (Tr at 25). Photos of the knife were admitted into evidence as People's # 4 and # 5.
Detective Edwin Exilhomme testified credibly that he was involved in investigating the homicide of Laquan Surles (Tr at 30). On May 5, 2018 at approximately 11 AM, Detective Exilhomme observed the defendant in the precinct and bought him some food (Tr at 30, 32). The next day at approximately 10:35 AM, the detective received a phone call from the desk officer stating that the defendant wanted to speak with a detective (Tr at 32). In response, Detective Exilhomme went to the cell area the defendant was being held in (Tr at 32). The defendant asked how much longer he would have to be there and stated, in sum and substance, "you know, when I go to Riker's, they are going to kill me because that dude was loved" (Tr at 32-33). Detective Exilhomme informed the defendant that the investigation was still ongoing, that the detectives are working as fast as they can and to be patient (Tr at 32-33). Detective Exilhomme did not ask the defendant any questions or make any threats or promises (Tr at 33). On cross-examination, Detective Exilhomme admitted he knew the defendant had an attorney and that he did not contact the attorney for permission to speak with the defendant (Tr at 34, 36).
Detective Michael Jimenez has been a detective with NYPD for 11 years (Tr at 37-38). He testified credibly that on May 4, 2018 at approximately 8:50 PM, he responded to a call of a male shot and in critical condition at Brooklyn Hospital (Tr at 38). When he arrived at the hospital, he was unable to speak to the complainant, Laquan Surles, because he was being treated by hospital staff (Tr at 38). Detective Jimenez later learned that Mr. Surles died (Tr at 38-39).
While at the hospital, Detective Jimenez met with Confidential Witness # 3 (CW3) who informed him that earlier in the evening, her husband had an argument with an individual she referred to as Flippen, that Flippen pulled out a red utility knife and threatened her husband with it, and that her husband chased Flippen into the train station (Tr at 39-40). She also observed Flippen motion as if he had a firearm (Tr at 40). CW3 told the detective that she knew Flippen for a couple of years, that they previously lived in the same shelter, and that she had sex with him one time (Tr at 40). She described Flippen as wearing a red shirt and dark colored pants (Tr at 40). Using her cell phone, she also showed Detective Jimenez Flippen's Instagram page and pointed him out in different pictures (Tr at 40-41). Screen shots of conversations CW3 had with Flippen and a photograph in which she identified Flippen were admitted into evidence as People's # 6. CW3 then entered a police car with the detective and showed him the location of the dispute (Tr at 44). Her information led the detective to the Nevins Street train station where he viewed and recovered video surveillance (Tr at 44). The video surveillance showed a male wearing a red t-shirt and dark colored pants run into the train station, followed moments later by Mr. Surles running into the train station (Tr at 44). The male wearing the red t-shirt is seen jumping the turnstiles, the parties appear to have a verbal exchange, and then Mr. Surles is observed going back up the stairs (Tr at 45). Detective Jimenez also reviewed video surveillance from 25 Third Avenue that showed Mr. Surles crossing the intersection on the corner of State Street and Third Avenue and a male wearing dark clothing holding a light colored rag or t-shirt with his hand extended as he chased after Mr. Surles (Tr at 46).
After learning that Robert Flippen lived at 333 Schermerhorn Street, Apartment 10M, Detective Jimenez went to that location and viewed video surveillance from the location (Tr at 46). On the video, the detective observed a male wearing a red shirt and dark colored pants exit the building shortly after the time of the incident and then return (Tr at 46-47). The video also shows the same man exiting the location later in the evening wearing a white shirt and blue jeans (Tr at 47). A clerk at the building told the detective that 20 minutes prior to the detective's arrival, the man in the red shirt, who he knew as Robert Flippen of apartment 10M, had been in the lobby wearing a white T-shirt and blue jeans (Tr at 48-49).
On May 5, 2018 at approximately 2:42 AM, Detective Jimenez interviewed Confidential Witness # 2 (CW2) who stated that while she was in the store on the corner of State Street and Third Avenue she heard approximately five shots (Tr at 49). She looked out the glass on the front door and saw a dark-skinned male black, wearing a red shirt, dark colored pants, with what appeared to be a black gun in his hand, run from Third Avenue onto State Street towards Nevins (Tr at 49).
Based on his investigation, Detective Jimenez developed the defendant as the suspect and assigned officers to 333 Schermerhorn to secure the location and to apprehend the defendant if he returned (Tr at 49-50). At approximately 6:15 PM that same day, after the defendant had been arrested, Detective Jimenez returned to 333 Schermerhorn Street to further review and download the surveillance video from the location (Tr at 50). The detective also obtained from building management a print out of key fob usage for the defendant and his sister (Tr at 51-52).
Detective Jimenez also reviewed video surveillance from 46 Nevins Street which showed a male, wearing a black baseball hat, black t-shirt, dark colored pants, and holding a white rag or t-shirt, walking from the direction of State Street on Nevins (Tr at 53-54). There was no testimony elicited as to when this video was reviewed, that is before or after the defendant's arrest.
On May 6, 2018 at approximately 4:25 PM, as Detectives Jimenez and Tillotson walked past the cells at the 84th Precinct, the defendant called out and motioned them over (Tr at 67). The detective approached and the defendant asked what was going on and when he was supposed to be in court (Tr at 67-68). Detective Jimenez responded that court is at 9 AM but that they were still conducting an investigation and that he would go to court when the investigation was completed (Tr at 68). The defendant then stated, in sum and substance, "if you are conducting an investigation, you already know what it is, and I had to do what I had to do, I had to do what I had to do for my family, he chased me into the train station, he is an asshole and deserved it" (Tr at 68). At the time of his statements, the defendant had not been asked any questions and no threats or promises had been made (Tr at 68). The detectives did not engage the defendant further but asked if he wanted water. The defendant stated that he did and the detectives walked away.
Approximately a half an hour later, Detective Jimenez was informed by Detective Tillotson that when Detective Tillotson brought the defendant water, the defendant indicated that he wanted to show him where the firearm was because he was scared a child may find it (Tr at 69-70). At approximately 5:20 PM, Detectives Jimenez, Tillotson, and Holder and the defendant got into a police vehicle to retrieve the firearm (Tr at 70). At that point, the detectives did not know where the firearm was but believed it was somewhere accessible to a child (Tr at 70). The defendant directed the detectives to a location alongside a playground on Third Avenue (Tr at 70). While in the car, the detectives asked the defendant for directions to the location of the firearm (Tr at 77-78). When they arrived, the defendant pointed to a grey Honda and indicated that the gun was buried by a tree near the car (Tr at 70-71). When the detectives walked over, they observed an area that appeared to be dug up (Tr at 71). They moved the dirt around and the observed the butt of a gun sticking out (Tr at 71). The defendant then informed the detectives that the top half of the magazine was buried three trees away (Tr at 71). The detectives walked over, and after Detective Tillotson moved the dirt, he saw the rest of the gun (Tr at 71). The defendant also informed the detectives that he threw the spring and barrel somewhere on Smith Street (Tr at 71-72). Detectives Jimenez and Holder walked over there but were unable to find the spring and barrel (Tr at 72). The three detectives and the defendant then drove back to the precinct (Tr at 72). As they drove past the scene of the incident, the defendant asked Detective Tillotson to slow down (Tr at 72). The defendant then looked around and said, "see, no one loves him, there was no candles" (Tr at 72). As they approached an area that had scaffolding, the defendant motioned with his head and stated, "if I were to [have] done it over there you would never have caught me" (Tr at 72). The defendant had not been asked any questions and no threats or promises had been made (Tr at 72-73). Detective Jimenez conceded that he was aware that the defendant was represented by counsel, but did not make any efforts to reach out to defense counsel (Tr at 79-80).
Detective Mark Holder has been with the 84th Precinct Detective Squad for 17 years (Tr at 87). He testified credibly that on May 4, 2018, at approximately 8:35 PM, he received a radio run of a male shot at Third Avenue and State Street (Tr at 87). He responded to the location and observed that a crime scene was already set up (Tr at 88). He also observed shell casings on the street and saw an ambulance taking the complainant, Laquan Surles, to the hospital where he later died (Tr at 88). At approximately 10:10 PM that evening, Detective Holder interviewed Confidential Witness # 1 (CW1) who stated that he was walking on State Street toward Third Avenue when he heard a shot and observed a male running and another male behind him with his hands outstretched firing a gun (Tr at 88). CW1 said he could not identify the shooter, but that he saw the shooter go down State Street towards Nevins (Tr at 89).
On May 5, 2018 at approximately 7:05 AM, Detective Holder learned that the defendant was apprehended (Tr at 89). At about 7:50 that morning, Detective Holder was informed that an attorney had called on behalf of the defendant and stated that he did not want the defendant questioned and wanted to be present for any line-ups (Tr at 90). At approximately 11 PM on that date, Detective Holder conducted a line-up with CW3 for which defense counsel was present (Tr at 92). The defendant chose position number four for the line-up (Tr at 93). CW3 identified the person in position number four as the individual she saw her husband arguing with earlier (Tr at 94-95). The line-up paperwork was admitted into evidence as People's # 10. Photographs of the line-up were admitted into evidence as People's # 11A and 11B.
On May 6, 2018 at approximately 5:20 PM, Detective Tillotson informed Detective Holder that the defendant said the gun was on the street and that he would take them to it (Tr at 96). Detective Holder, together with Detectives Tillotson and Jimenez and the defendant, got into a department vehicle and drove the route directed by the defendant (Tr at 96). When they got to the location, the defendant pointed to a vehicle and said that the gun was at a stone next to the vehicle (Tr at 96). Detective Holder observed freshly covered dirt and observed the butt of the gun sticking up (Tr at 97). When he returned to the car, the defendant pointed at another tree and stated that's where the magazine was buried (Tr at 97). Detective Holder again observed freshly dug dirt and observed the magazine (Tr at 97). When he returned to the car again, the defendant told the detectives that he threw the barrel on Smith Street (Tr at 97). Detectives Holder and Jimenez went to Smith Street to find the barrel but were unsuccessful (Tr at 97). The detectives then took the defendant back to the precinct (Tr at 98). On the way back, as they passed the YWCA on Atlantic Avenue the defendant stated, "I don't see any candle, I guess he is not loved" (Tr at 98). While in the car, the defendant also said "if I shot him under the scaffold there, you never would have known" (Tr at 98). At the time he made these statements, the defendant had not been asked any questions and no threats or promises had been made (Tr at 98-99). When they returned to the precinct, Detective Tillotson placed the defendant back in a cell at which point the defendant stated, "don't charge me with murder, I will plea to manslaughter" (Tr at 99). Detective Holder told the defendant he cannot do that and that the defendant has an attorney, to which the defendant responded, "I know, I know, he is going to be pissed at me for talking to you guys" (Tr at 99). No questions were asked of the defendant and no threats or promises were made (Tr at 99).
Detective Joseph Tillotson has been with the NYPD for 18 years (Tr at 106). He testified credibly that on May 6, 2018, as he and Detective Jimenez passed the hallway leading into the 84th Precinct's cell area, he heard the defendant say "hey detectives" and observed him motion for the detectives to come over (Tr at 107-108). When they approached him, the defendant asked when he was going to court, and Detective Jimenez responded that they were still conducting an investigation, that it was a long process, and that it would be a little while (Tr at 109). The defendant then stated, in sum and substance, "well, if you're still investigating this, then you already know what it is, I had to do it, I had to do what was right for my family, the guy chased me earlier down into the train, he was an asshole and deserved it" (Tr at 109-110). No questions were asked of the defendant other than if he wanted something to eat or drink (Tr at 110). At approximately 5:30 PM that day, Detective Tillotson returned to the cell area to give the defendant a bottle of water when the defendant stated "you have to understand that I am not this kind of person, I am not a murderer, I don't do this but I had to" (Tr at 110-111). No questions were asked of the defendant and no threats or promises were made (Tr at 112). Detective Tillotson responded "I know you are not, I even saw a video of you from your past where you had saved some people from a fire" (Tr at 112). The defendant then stated "I don't want a kid to find that thing" to which the detective responded "I would not want that either" (Tr at 113). The defendant then said that it was outside where a kid could find or get it and offered to take the detective to it (Tr at 113). Detective Tillotson then asked whether they were talking about a gun and the defendant confirmed that he was talking about a gun (Tr at 113-114).
Detective Tillotson informed Detective Jimenez of what had transpired and then he, Detective Jimenez, and Detective Holder went to the cell area where the defendant was being held (Tr at 114). The defendant told the detectives, in sum and substance, "my lawyer is going to kill me for this but I don't want a kid to find it" (Tr at 114-115). Detective Tillotson informed the defendant that he did not have to do this but the defendant again stated that he did not want a child to find it, so they all got into a police car (Tr at 115-116). In the car the detectives had a conversation with the defendant regarding where they needed to go in order to find the gun (Tr at 116). The defendant directed the detectives back towards the area of the incident on Nevins Street, then across Atlantic Avenue, and finally to Degraw Street near a playground and what the detective believed was a public school (Tr at 116). Half way down the block, the defendant directed them to pull over and indicated a dirt patch where they would find at least half of the gun (Tr at 116-117). The detectives looked in that area and found the bottom half of the firearm (Tr at 117). The defendant then informed the detectives that the other part of the gun, the slide, was in another dirt patch on that street (Tr at 117). Detective Tillotson went to that area, used his foot to push around the dirt, and found additional pieces of the gun including the magazine and the slide (Tr at 118). The defendant then said that he threw the barrel and spring out in the street (Tr at 118). The detectives asked the defendant where and made an attempt to look for them along Smith or Court Street, but were unable to locate the additional pieces (Tr at 118-119).
The detectives and the defendant then drove back to the precinct (Tr at 119). As they passed through the crime scene, the defendant asked Detective Tillotson to slow down and said something to the effect of no one loves him or cares about him because there were no candles (Tr at 119). At the time, the defendant had not been asked any questions and no threats or promises were made (Tr at 119). The defendant then directed the detectives' attention to scaffolding alongside a building and said, in sum and substance, that if he had killed him near the scaffolding, they never would have found or caught him (Tr at 119-120). Again, no questions were asked of the defendant and no threats or promises were made (Tr at 120).
CONCLUSIONS OF LAW
At a suppression hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct ( People v. Hernandez , 40 AD3d 777, 778 [2nd Dept 2007] ; People v. Moses , 32 AD3d 866, 868 [2nd Dept 2006] ; see also People v. Wise , 46 NY2d 321, 329 [1978] ; People v. Whitehurst , 25 NY2d 389, 391 [1969] ). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time ( People v. De Bour , 40 NY2d 210, 215 [1976] ). If the People satisfy their initial burden, the defendant "bears the ultimate burden of proving that the evidence should not be used against him" ( People v. Berrios , 28 NY2d 361, 367 [1971] ).
Here, the police were investigating the homicide of Laquan Surles. On May 4, 2018, at approximately 8:35 PM Detective Holder responded to a radio run of a male shot. On the scene, he observed an ambulance removing Mr. Surles to the hospital. He also observed shell casings on the street. He later learned that Mr.Surles had died. At approximately 8:50 PM that day, Detective Jimenez became involved in the investigation in that he responded to a call of a male shot and in critical condition at Brooklyn Hospital. He later learned that the male, Laquan Surles, had died. At the hospital, Detective Holder spoke with CW3, the decedent's wife, who informed him that her husband had a dispute with a man named Flippen, that Flippen had pulled a knife on her husband and threatened him with it, and that her husband chased Flippen into the train station. She provided Detective Holder with Flippen's clothing description and also showed him photographs of Flippen on Flippen's Instagram page.
After speaking with CW3, Detective Jimenez viewed video surveillance from the Nevins Street train station which showed a male wearing a red t-shirt and dark colored pants run into the train station, followed moments later by Mr. Surles running into the train station, and the two appeared to have a verbal exchange. Detective Jimenez also reviewed video surveillance from 25 Third Avenue that showed Mr. Surles crossing the intersection on the corner of State Street and Third Avenue and a male wearing dark clothing holding a light-colored rag or t-shirt with his hand extended as he chased after Mr. Surles. Detective Jimenez also viewed video surveillance from the defendant's apartment building which showed a male wearing a red shirt and dark colored pants exit the building shortly after the time of the incident and then return. A building clerk informed the detective that the man in the red shirt was Robert Flippen and that he lived in the building.
At approximately 10:10 PM that evening, Detective Holder spoke with a witness, CW1 who informed him that while he was walking on State Street near Third Avenue, he heard a shot and observed a male running and another male behind him with his hands outstretched firing a gun and that the shooter went down State Street towards Nevins.
At 5:42 AM, on the morning of May 5, 2018, Detective Jimenez interviewed CW2 who stated that while she was in a store on the corner of State Street and Third Avenue, she heard five shots and saw a dark-skinned male black, wearing a red shirt, dark colored pants, with what appeared to be a black gun in his hand, run from Third Avenue onto State Street towards Nevins.
Here, the information known to the police provided sufficient probable cause for the defendant's arrest. Accordingly, the defendant's motion to suppress any evidence as fruits of an unlawful arrest is denied.
With respect to the knife recovered from the defendant's pocket, because there was probable cause to arrest the defendant, the subsequent search of his person was valid as a search incident to lawful arrest ( People v. Lynch , 254 AD2d 503, 503 [2nd Dept 1998] [evidence recovered from the defendant's person was properly recovered during a search incident to lawful arrest] ). Accordingly, the defendant's motion to suppress the knife recovered from his pocket during the search of his person conducted at the precinct is denied.
The remaining issue for this court to decide is the admissibility of evidence, namely statements made by the defendant, after his arrest and after the right to counsel had attached, which resulted in the recovery of parts of a gun. The statements at issue are: 1) a statement made to Detective Exilhomme at the precinct on May 6, 2018 at approximately 10:35 AM; 2) a statement made to Detective Jimenez and Detective Tillotson at the precinct on May 6, 2018 at 4:25 PM; 3) a statement made to Detective Tillotson at the precinct on May 6, 2018 at approximately 5 PM; 4) a statement made to Detective Jimenez, Detective Tillotson and Detective Holder on May 6, 2018 at approximately 5:30 PM inside a police vehicle; 5) a statement made to Detective Jimenez, Detective Tillotson and Detective Holder on May 6, 2018 at approximately 7 PM inside a police vehicle; and 6) a statement made to Detective Holder on May 6, 2018 at approximately 7:10 PM inside the precinct.
It is undisputed that at the time the defendant made the statements described above, his right to counsel had been invoked. Detective Holder admitted that shortly after the defendant's apprehension at approximately 7:05 AM on May 5, 2018, he was informed that an attorney had called on behalf of the defendant indicating he did not want his client questioned and that he wanted to be present for any line-ups. As set forth by both the prosecution and the defendant, it is well-settled law that once an attorney has entered a criminal proceeding to represent a defendant, a defendant may not subsequently waive the right to counsel except in the presence of said attorney ( People v. Hobson, 39 NY2d 479, 481 [1976] ; People v. Arthur , 22 NY2d 325, 329 [1968] ; People v. Brooks , 69 AD2d 884, 886 [2nd Dept 1979] ). The defense thus argues that the statements attributed to the defendant were taken in violation of his right to counsel and must therefore be suppressed. The People counter that the majority of the statements made by the defendant were spontaneous statements and are therefore admissible. With respect to the statements made by the defendant in the police vehicle as he directed the police to the location of the gun, the People submit that that those statements fall within the public safety exception articulated by the United States Supreme Court in People v. Quarles , 467 US 649 (1984) and recognized by our state courts as an emergency exception (see, e.g., People v. Doll , 21 NY2d 665 [2013] ; People v. Molnar , 98 NY2d 328 [2002] ; People v. Krom , 61 NY2d 187 [1984] ; People v. Molina , 248 AD2d 489 [2nd Dept 1998] ).
Turning to the first three statements attributed to the defendant, each statement was made as a result of a conversation or exchange initiated by the defendant. As to the first statement, the defendant requested to speak to a detective. In response to the defendant's request, Detective Exilhomme went down to defendant's cell. In response to the defendant's question about how much longer it would be, the detective stated that the investigation was ongoing and asked the defendant to be patient. The defendant then made the statement, "When I go to Riker's, they are going to kill me because that dude was loved." As to the second statement, as Detectives Tillotson and Jimenez walked into the 84th precinct near the cells where defendant was being held, the defendant motioned them over. When the detectives went over he asked them what was going on and when he would be going to court. The detectives informed him that the investigation was ongoing and that he would go to court once it was complete. The defendant then made the statement, in sum and substance, that he had to do what he had to do for his family, that the decedent chased him into the train station, and that the decedent deserved it. The defendant also requested a bottle of water. As to the third statement, after Detective Tillotson brought the defendant water, the defendant began talking to the detective and stated, in sum and substance, that he was not this type of person, that he was not a murderer. The detective acknowledged that he knew that. The defendant then continued and stated that he did not want a kid to find that thing, that it was outside and he offered to take the detective to it if he were front-cuffed. The detective asked for clarification and the defendant confirmed that he was talking about a gun.
The record before this court establishes that those statements were not initiated by the police, but rather, that it was the defendant who instigated each contact. The evidence further establishes that the defendant's statements were not in response to police questioning, nor were they the result of inducement, provocation, or encouragement ( People v. Grimaldi , 52 NY2d 611, 617 [1981] ; People v. Maerling , 46 NY2d 289, 302-303 [1978] ). Of course, a statement made by a defendant in response to police questioning does not preclude a finding of spontaneity. In evaluating whether a statement is spontaneous or the product of police interrogation, the inquiry for the court is whether the statement "can be said to have been triggered by police conduct which should reasonably have been anticipated to evoke a declaration from the defendant" ( People v. Webb , 224 AD2d 464, 465 [2nd Dept 1996] ).
Here, the defendant asked questions about why things were taking so long and was informed that the detectives were still investigating. There is nothing in the record indicating that the police should have known that responding to the defendant's questions about the delay was likely to illicit those responses from the defendant (see Webb , 224 AD2d at 465 [question concerning defendant's whereabouts was not one which police should have reasonably anticipated would evoke an incriminating response]; see also People v. Troisi , 224 AD2d 559, 559 [2nd Dept 1996] [lower court was correct in denying the defendant's motion to suppress his statements when those statements were made "in response to being informed that he was under arrest"] ). Furthermore, the testimony here shows that the defendant not only initiated the conversation, but he furthered it. After summoning the police on each of these three occasions, the defendant asked a question and the police answered the question with one sentence responses, which were "declarative in nature and would not normally call for a reply" ( People v. Dove , 176 AD2d 266, 267 [2nd Dept 1991] ). This notwithstanding, the defendant pursued the conversation by continuing to make statements. The Court of Appeals has explicitly stated that "The police are not obligated to silence a talkative defendant" ( Krom , 61 NY2d at 199 ). The record before this court establishes that these statements were spontaneously and voluntarily made by the defendant. "Spontaneous statements made after the right to counsel has indelibly attached are admissible even though they may be said to represent an implicit waiver of the right to counsel in the absence of an attorney" (id. ). Accordingly, the defendant's motion to suppress these three statements is denied.
With respect to statements made by the defendant in the police car which resulted in the recovery of various parts of a gun, the People submit that this statement is admissible under the public safety exception. The public safety exception, also referred to as the emergency exception, allows the police to question a defendant, even after the right to counsel has attached or in the absence of Miranda warnings, provided that such questioning is justified by the need to save or protect a life ( Doll , 21 NY3d at 668 ; Molnar , 98 NY2d at 332 ). The emergency exception is only applicable where the following three factors have been met:
(1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
( Doll , 21 NY3d at 670-671 [internal citations omitted] ).
In this case, the police were investigating the homicide of Mr. Surles. Mr. Surles was shot at approximately 8:35 PM on the evening of May 4, 2018. He was taken to Brooklyn Hospital where he died. Based on their investigation and as set forth above, the police had probable cause to arrest the defendant as the perpetrator of the crime. At the time of the defendant's arrest on May 5, 2018 at approximately 7 AM, less than 12 hours had transpired from the time of the shooting. Other than a knife, there were no weapons recovered from the defendant at the time of his arrest. While in a holding cell at the precinct, the defendant initiated a conversation with Detective Tillotson regarding the location of the gun. Specifically, the defendant said that he didn't want a kid to find it and that it was outside where a kid could find or get it. He then offered to take the detective to the location of the gun. Three detectives then removed the defendant from his cell and placed him into a police vehicle and he directed them to the location of the firearm, which the detectives described as alongside a playground. Once at the location, the defendant directed the detectives to a tree where they observed the butt of a gun sticking out. The detectives recovered it. The defendant then informed the detectives that the top half of the magazine was buried three trees away. Once the magazine was recovered, the defendant told the police that he had thrown the spring and barrel on the street. The detectives asked where and the defendant indicated on Smith Street. The detectives searched the area but were unable to locate the spring and barrel.
Here, as in Quarles , supra , the police were confronted with the urgent need of locating a gun which they had every reason to believe had been used to kill Mr. Surles and which, based on the defendant's statements, had been discarded in public near a playground where a child could find or get to it (see Quarles , 467 US at 657 [emergency found where police faced with ascertaining the whereabouts of a gun a rape suspect had just discarded in a supermarket] ). Of course, as aptly stated by the Second Department, to allow inquiry as to the location of weapons in every case in violation of a defendant's Miranda rights and more specifically here, a defendant's right to counsel, would result in the exception overcoming the rule ( People v. John C., 130 AD2d 246, 252 [2nd Dept 1987] ). Thus, in evaluating the applicability of the exception, a court must consider whether the primary motivation is a concern for public safety or a desire to further the crime investigation (id. ). The testimony before the court establishes that when they placed the defendant in the police car to search for the gun, the police were acting as "community caretakers [and] not as criminal investigators" ( Molnar , 98 NY2d at 330 ). At the time of the search, the police were more concerned with the dangers this discarded gun posed to the public than to secure evidence of a crime (see Quarles , 467 US at 657 ; cf. John C., 130 AD2d at 253 [exception not found where officer's first question was not as to whereabouts of gun but a request for an incriminating statement] ). Here, the prerequisites for application of the emergency exception were met, in that the police were trying to retrieve a weapon which had just been used in a murder and had been discarded near a public playground, an area accessible to the public, and in particular, children. Thus, even if defendant's waiver of his right to counsel is rendered ineffective because it was made in the absence of defense counsel, the initial questioning of the defendant by the police regarding the whereabouts of the gun was justified pursuant to the emergency exception (Molina , 248 AD2d 490 [emphasis added] ).
The defense submits that the issue for this court to consider is "whether the ‘public safety’ exception justified the police's continued questioning and conversations with Mr. Robert Flippen despite Mr. Flippen's right to counsel having attached" (see Defendant's Memorandum of Law [emphasis added] ). The defense appears to question whether any of the statements attributed to the defendant were elicited after the emergency ended. This issue is identical to one addressed by the Court of Appeals in People v. Krom , supra . In Krom , the defendant, after asserting his right to counsel, offered to speak to the police about the whereabouts of a kidnap victim. The defendant was placed into a police car and directed the police to a wooded area in a nearby county in which there was a grave-shaped hole containing a large box with a lock. The defendant produced a key, opened the lock and opened the box which contained the body of the victim. The police informed the defendant that he was now being charged with murder and noted that there were bullet holes in the box. In response, the defendant made a self-incriminating statement. The trial court denied suppression of the statements pursuant to the emergency exception. The Appellate Division affirmed the trial court's ruling, but found that "the emergency ended once the victim's body was discovered, and therefore the trial court should have suppressed the statements the defendant subsequently made in response to police questioning" ( Krom , 61 NY2d at 196 ). The Appellate Division concluded, however, that the error was harmless as the confession was cumulative. In affirming the Appellate Division, the Court of Appeals held that the police should not have continued to question the defendant in the absence of counsel once the victim's body was found as such questioning only served to secure evidence against the defendant ( id. at 200 ).
The question of the admissibility of statements obtained under the emergency exception after the emergency concluded was also addressed by the Second Department in People v. Molina , supra . In Molina , the police questioned the defendant, whose right to counsel had attached, regarding the whereabouts of a kidnap victim. The Appellate Division held that once the victim's dead body was found, the emergency no longer existed and thus any statements or evidence obtained after that should have been suppressed ( Molina , 248 AD2d at 490 ).
It is clear that prior to recovering the butt of the gun near the playground, the police did not know or expect to find the gun in pieces. However, once the police found the butt of the gun and discovered that the gun was in pieces, they should not have continued to ask the defendant about the remaining parts of the gun. At that point, the emergency ceased to exist in that the gun, as it then existed in pieces, no longer posed a danger to public safety. Accordingly, the defendant's motion to suppress the statements made at the scene of the search after the butt of the gun was recovered as well as his motion to suppress the additional parts of the gun which were recovered pursuant to such statements is granted.
As to the statement made by the defendant in the police car while en route back to the precinct, the motion to suppress that statement is denied. After recovering the gun parts, the police and defendant drove back to the precinct. As the vehicle passed the original crime scene, the defendant asked Detective Tillotson to slow down and told the detectives that there were no candles so that the guy was not loved. The defendant also pointed to scaffolding and stated that he was going to kill the decedent there and had he done so, the defendant would not have been caught. At the time, the defendant had not been asked any questions and again, the defendant initiated the exchange by asking the police to slow the vehicle down. Absent from the record is any indication that the police did anything to induce, provoke, or otherwise encourage the defendant to make this self-incriminating statement. That some of the statements made by the defendant at the scene of the search have been held to be inadmissible does not preclude a finding that subsequent statements were spontaneous. The court finds that these statements were spontaneous and voluntarily made.
Turning to the last statement attributed to the defendant, in sum and substance, that he should be charged with manslaughter, not murder, that he cannot spend the rest of his life in jail, and that his attorney was going to be upset that he spoke to the police, the court finds that this was also a spontaneous statement. As defendant was being returned to a cell in the precinct, he made the statements. The statements were not triggered by police conduct, rather they were made by an overly talkative defendant. As such, the motion to suppress this statement is denied.
CONCLUSION
For the reasons set forth above, the defendant's motion to suppress statements and physical evidence is denied except to the extent that the statements made at the scene of the search after the butt of the gun was recovered and the additional gun parts recovered pursuant to such statements are suppressed.
This constitutes the Decision and Order of the Court.