Opinion
4710-2006.
Decided June 26, 2008.
APPEARANCES: For the People: HON. ROBERT T. JOHNSON, District Attorney, Bronx County, Bronx, NY.
Gregory Cho, Of Counsel For the Defendant: DAVID GOLDSTEIN, ESQ., Bronx, NY.
Defendant was indicted and charged with one count of Criminal Possession of a Weapon in the Second Degree [PL § 265.03(3)] and one count of Resisting Arrest (PL § 205.30). He contends that the police did not have probable cause to place him under arrest, claims to be aggrieved by an unlawful search and seizure and has moved to suppress statements attributed to him, as well as a firearm, magazine, and a quantity of bullets, recovered from the ground after he discarded it during pursuit by the police. In addition, defendant has moved for preclusion with respect to certain of his oral statements, asserting that the People failed to give adequate notice of their intent to use those statements.
A combined pre-trial Dunaway/Mapp/Huntley suppression hearing (granted by a court of coordinate jurisdiction) was conducted before this court on April 22, 2008 and continued on April 25, 2008, during which the People called two witnesses, NYPD Detective Alex Londino of the Bronx Narcotics Unit and Sergeant Brendan Rafter of the 41st Precinct. Defendant presented no witnesses. For the reasons set forth below, defendant's motion to suppress physical evidence is denied. His motion to suppress his statements is granted in part and denied in part. His motion for preclusion is granted.
The findings of fact set forth below are based on the transcript of the testimony received at the evidentiary hearings conducted on April 22, 2008 and April 25, 2008, as well as the exhibits offered and admitted in evidence in this case.
The court finds the testimony of Det. Londino and Sgt. Rafter to have been credible. Sergeant Brendan Rafter testified that on December 9, 2006, he was assigned with three other officers, Victor Rosa, Joseph White, and Jamie Payan, to the 46th Precinct Anti-Crime Unit. They were all dressed in plain clothes, traveling in an unmarked police car with tinted windows. Officer Victor was the driver of the vehicle; Sgt. Rafter was seated in the front passenger seat. In the early morning hours, several radio runs of "shots fired" in the vicinity of Tremont Avenue and Mount Hope Place were received over the police radio. Sergeant Rafter did not recall the number of radio calls received but testified that there were at least two. He had no independent recollection of the content of the radio communications, took no notes of any of them and did not respond to them, but did recall that no one had been apprehended.
At the time of the hearing testimony, Brendan Rafter held the rank of sergeant. There was no testimony elicited at the hearing as to when he was promoted to this rank. For the purposes of consistency, he is referred to as Sergeant Rafter in the entirety of this decision.
At approximately 2:40 A.M., twenty minutes after the last of the radio calls, he drove to the location of the radio runs to see if he could find anyone associated with them. Upon arrival at the location, his vehicle made a right turn from Anthony Avenue onto Mount Hope Place, a one-way street. Traveling westbound on Mount Hope Place, at no more than 15 miles per hour, he observed defendant in the middle of the block, walking down the street, towards his unmarked police vehicle. Defendant crossed to the north side of the street from the south side and walked eastbound towards Anthony Avenue. When defendant crossed the street, he passed in front of the moving, unmarked, police vehicle. Upon making eye contact with defendant, Sgt. Rafter testified that defendant's eyes widened. Sergeant Rafter did not recall whether he had his shield displayed at the time. He rolled down the window of his vehicle, observed that defendant had stepped up onto the sidewalk and then said to defendant, "Sir, police, can I talk to you for a second?" When defendant stepped onto the sidewalk, he was behind a minivan; he crouched down, bent his knees and lowered his arm and then he stood up straight, very quickly. He took a stutter step forward and then a stutter step back and then he crouched down again. During that period of time Sgt. Rafter was still sitting inside his vehicle.
Thereafter, Sgt. Rafter opened the door of his vehicle and as he was stepping out of the car, he said "Sir, police, hang on for a second," or something to that effect. On cross-examina-tion, Sgt. Rafter testified that as he was getting out of the car, he said, "Stop, police." Defendant then said, "Please, no." He then turned around and started to run. Sergeant Rafter testified that because of the close temporal and spatial proximity to the general area in which the shots had been fired, he was concerned for his safety; however, he did not have his gun drawn.
As Sgt. Rafter stepped onto the sidewalk, he observed defendant pull a pistol out of his pocket area (he did not recall what defendant was wearing) and throw it in the air, back over his head. The gun sailed over Sgt. Rafter's head. Sergeant Rafter pointed to the item being thrown, with the intention of alerting the other officers as to what he was observing. He realized that Officer White was out of the car behind him, so he turned his attention back to defendant and pursued defendant on foot. Defendant then pulled a magazine out of his pocket area and threw it; about two steps later, defendant pulled a handful of bullets out of his waistband area and threw those also. At the time of this foot pursuit, defendant was on the north side of the street, running westbound on the sidewalk towards the Grand Concourse. As defendant was throwing the items, at one point, he entered into the street, crossing on Mount Hope Place. Defendant was subsequently apprehended and placed under arrest.
After defendant was arrested, but while still on the street, he informed the officers that he had information about people who had guns. Sergeant Rafter testified that he may have asked him clarifying questions about the statement. He did not give defendant Miranda warnings. Defendant was then brought to the 46th Precinct, where he told Sgt. Rafter that he bought the gun several months earlier for approximately $600. Based on defendant's statements, Sgt. Rafter called Firearms Investigations to enhance the arrest and to have defendant debriefed. Sergeant Rafter also prepared a stop and frisk report. Officer Payan brought defendant to St. Barnabas hospital because of an eye injury (the arrest photograph of defendant was admitted in evidence as defendant's Exhibit H). Sergeant Rafter testified that he spoke to defendant for approximately thirty minutes prior to Det. Londino's arrival at the 46th Precinct and prior to defendant's removal to the hospital. Although there was no testimony as to when defendant was brought to the hospital, the hospital records (admitted in evidence as defense Exhibit I) indicate that defendant was at St. Barnabas Hospital at 4:57 A.M and that he was still at the hospital at 6:15 A.M.
Detective Alex Londino, a ten-year veteran of the NYPD, testified that on December 9, 2006, he was assigned to the Firearms Investigations Unit. He arrived at the 46th Precinct at approximately 9:00 A.M. and was assigned by a police sergeant to interview defendant. Although he spoke to Sgt. Rafter, he did not ask Rafter what happened with the arrest, did not ask him if defendant said anything to him, and did not recall whether he asked if anyone had given defendant his Miranda warnings.
At approximately 9:30 A.M., while at the 46th Precinct, he read defendant his Miranda warnings from a piece of paper entered into evidence as People's Exhibit 1. Defendant orally acknowledged to Det. Londino his understanding of each right as read to him and his responses were memoralized by placing a check mark and by writing his initials "WT" next to the word "yes" in the space provided, after the recitation to each of the questions in People's Exhibit 1. After defendant was advised of the warnings and after defendant answered all six questions in the affirmative, he and Det. Londino discussed what had happened preceding his arrest. At about 10:40 A.M., Det. Londino asked defendant if he was willing to give a written statement. Defendant answered in the affirmative and in Det. Londino's presence, defendant wrote a statement (entered into evidence as People's Exhibit 2). Defendant took approximately thirty minutes to write the statement wherein he stated that his nephew came to his house and told him that he had been shot by Damon and Russ; he was tired of Damon and Russ trying to kill him and wanted defendant to do something about them. His nephew asked him for a gun, he told his nephew that he could get one. He went to get the gun to help his nephew out; the police found it and locked him up. He bought the gun in March for $600. Defendant signed his name at the end of the statement; Det. Londino then wrote the date (2/9/06), the time (11:10 A.M.), and precinct (46), signed his name underneath defendant's, and Sgt. Rafter signed under Det. Londino's signature.
After the written statement was completed, Det. Londino further questioned defendant regarding his knowledge concerning the person from whom he had purchased the gun. Detective Londino testified that defendant told him that he bought the gun from a male black known as "Fox." "Fox" transported handguns, revolvers and semi-automatics from North Carolina and South Carolina using rental cars. No additional Miranda warnings were administered nor was this statement memoralized in writing.
CONCLUSIONS OF LAW
I. DUNAWAY/MAPP HEARING
In the Dunaway/Mapp portion of the hearing, the People have the initial burden of going forward to establish that the arrest of defendant was supported by probable cause and providing evidence of the legality of the police conduct. The burden then shifts to defendant to establish the illegality of the police conduct. Dunaway v New York, 442 US 200 (1979); Mapp v Ohio, 367 US 643 (1961).
Contrary to defendant's contention, Sgt. Rafter's request to defendant to stop did not constitute a "seizure" under the Fourth Amendment. In determining whether a seizure occurred, the test is whether a reasonable person would have believed, under the circumstances, that the officer's conduct was a significant limitation on his or her freedom. People v Bora, 83 NY2d 531 (1994); People v DeBour, 40 NY2d 210 (1976). That determination is made based on an examination of the circumstances surrounding the encounter.
Here, Sgt. Rafter's conduct, including the announcement of "Sir, police, can I talk to you for a second" did not constitute a seizure. Sergeant Rafter was in plain clothes, no weapons were drawn or displayed, no force was used, and when Sgt. Rafter uttered the command he was still in his vehicle. A reasonable person under the circumstances would not have believed that the conduct of the officer or his request was a significant limitation on his freedom. See People v Bora, supra. On cross-examination, Sgt. Rafter testified that as he was getting out of his vehicle, he said, "Stop, police." The mere announcement of "Stop, police," uttered upon Sgt. Rafter getting out of his vehicle, does not constitute a seizure such that the encounter became a stop and detention requiring reasonable suspicion. Indeed, the right of an officer to stop an individual for questioning necessarily includes directing that a person stop moving, which has been found not to constitute a seizure under the Fourth Amendment. People v Bora, supra.
Furthermore, the Court of Appeals explicitly found in Bora that an actual command to "stop" by a uniformed police officer as the individual is walking away does not constitute a seizure. Consequently, the announcement of "Stop, police" by a plain clothes officer clearly does not to rise to the level of a stop and seizure. See also People v Giles, 223 AD2d 39 (1st Dept 1996); People v Montero, 284 AD2d 159 (1st Dept 2001) [Defendant was not seized when officer approached him and said "Police. Can you hold up a minute?"].
Having found that no seizure occurred, no Fourth Amendment analysis is required to determine whether the police action here was proper. As to the existence of probable cause for defendant's arrest, when Sgt. Rafter observed defendant throwing the gun, magazine and bullets, probable cause existed to arrest defendant. Defendant's act of throwing the items in the air showed this intent to abandon them. The discarding of the physical items must be deemed an independent, calculated act, which was not in response to any unlawful police activity, but instead was made in anticipation of police action. As a result, defendant forfeited any constitutionally protected expectation of privacy therein. People v Ramirez-Portoreal, 88 NY2d 99 (1996); People v Boodle, 47 NY2d 398 (1979); People v Rosser, 150 AD2d 911 (3rd Dept 1989). Accordingly, defendant's motion to suppress the physical items recovered is denied.
DUNAWAY/HUNTLEY HEARING
At a Huntley hearing, the People have the burden of proving the voluntariness of a statement beyond a reasonable doubt. People v Huntley, 15 NY2d 72 (1965); People v Witherspoon, 66 NY2d 973 (1985). The voluntariness of an inculpatory statement must be evaluated by examination of the totality of the circumstances under which it was made. People v Anderson, 69 NY2d 651 (1986).
The People served CPL § 710.30 (1) (a) notice that on December 9, 2006, at approximately 2:30 A.M. defendant made an oral statement: "What? That's not mine. My eye injury is from a preexisting injury," to Police Officer Rosa. The People also served notice of a second statement that defendant made to Police Officer Rafter at approximately 3:00 A.M. at the 46th Precinct station house, the sum and substance of which is, "It's nothing." At the commencement of the hearing, the People withdrew notice with respect to these statements and defendant conceded that the statements were not "involuntary made," as that term is defined in CPL § 60.45(2)(a).
Pre-Warning Statements
After defendant was arrested but while still on the street, defendant told Sgt. Rafter that he had information about people who had guns. While at the 46th Precinct, defendant told Sgt. Rafter that he bought the gun several months earlier for $600.
Miranda v Arizona, 384 US 436 (1966), mandates that a defendant in custody be warned of his constitutional rights prior to custodial interrogation. The test of whether questioning by police is custodial is not whether a person is under arrest, but, rather, whether a reasonable person similarly situated to defendant and innocent of any crime would have thought that his freedom was significantly restricted. People v Yukl, 25 NY2d 585 (1969). Here, it is acknowledged that defendant was in police custody at the time he made the statements. It is also uncontested that defendant was not read his Miranda warnings prior to either of these statements. The question then is whether defendant was subjected to interrogation or whether the questions were designed to clarify the nature of the situation confronted, rather than to coerce a statement. People v Huffman, 41 NY2d 29 (1976) (an officer is allowed to ask threshold crime scene inquiries of an accused who is in custody, so long as the questions are designed not to elicit inculpatory responses but to clarify the situation which the investigating officers are pursuing).
This court finds that because the police had already witnessed defendant's involvement with the gun, the questions posed to defendant were not merely designed to clarify the situation; it was clear that a crime had already been committed, the criminal events at the crime scene had been concluded and the police were aware of defendant's conduct. People v Huffman, supra; People v Rifkin, 289 AD2d 262 (2nd Dept 2001). Furthermore, Sgt. Rafter testified that he may have spoken to defendant for approximately thirty minutes at the station house, asking questions about the statement. Accordingly, Miranda warnings were required and these statements must be suppressed as the product of custodial interrogation conducted in the absence of those warnings.
Post-Warning Written Statement
Once statements have been obtained based upon illegal questioning, the issue becomes whether the defendant was under the influence of that illegal questioning when he subsequently gave an otherwise admissible statement. Having determined that defendant's pre- Miranda statements are inadmissible, the question is whether defendant's subsequent written confession, given after he was advised of his Miranda rights, was made under the influence of his prior interrogation. There are two theories under which a defendant can seek suppression, and this defendant urges both of them. For the reasons set forth below, neither of those theories hold merit in this matter.
The first theory advanced by defendant to sanction the suppression of his written statement to Det. Londino is the "cat out of the bag" theory, as set forth in People v Tanner, 30 NY2d 102 (1972). Under the "cat out of the bag" theory, a person who makes a confession in violation of his constitutional rights may feel so committed by his prior statement that he believes it is futile thereafter to invoke his right to remain silent. In other words, he is never thereafter free of the psychological and practical disadvantages of having confessed and any subsequent confession is tainted by the prior confession. See United States v Bayer, 331 US 540 (1947).
The People served CPL § 710.30 (1) (a) notice that this statement was given to a public servant, including Police Officer Rafter. The evidence at the hearing was that this statement was given to Det. Londino in the presence of Sgt. Rafter.
The application of this theory, however, depends on a determination of the state of defendant's mind when he made the second statement. This is a fact question and there is no factual basis upon which this court can conclude that the written statement was involuntarily made on constraint of defendant's prior inadmissible statement, such that it committed him to the subsequent confession, as the defendant failed to testify or offer any evidence with respect to this claim. See People v Newson, 68 AD2d 377 (2nd Dept 1979); People v Morgan, 277 AD2d 331 (2nd Dept 2000); People v Thurman, 262 AD2d 987 (4th Dept 1999); People v Alaire, 148 AD2d 731 (2nd Dept 1989); People v McIntyre, 138 AD2d 634 (2nd Dept 1988).
Defendant's second theory is the continuing chain-of-events rule, as articulated in People v Chapple, 38 NY2d 112 (1975) and People v Bethea, 67 NY2d 364 (1986). The Chapple-Bethea rule is that "[w]hen, as part of a continuous chain of events,' a defendant is subjected to custodial interrogation without Miranda warnings, any statements made in response as well as any additional statements made after the warnings are administered and questioning resumes must be suppressed," except that a statement may nonetheless be admissible when "there is such a definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning." The issue here is thus whether the defendant's removal from the precinct to the hospital, following the questioningby Sgt. Rafter, and it subsequent resumption by Det. Londino following his return from the hospital, represents such a "definite, pronounced break."
Defendant contends that because he made an inculpatory statement in his pre- Miranda confession, the break in the interrogation is irrelevant. He cites People v White , 10 NY3d 286 (2008) in support of his position. In White, the Appellate Division, Second Department affirmed defendant's conviction [ People v White , 40 AD3d 662 (2nd Dept 2007)] and concluded that because defendant made no inculpatory statement, or any statement relating to his conduct in connection with the crime under investigation, until after warnings had been properly given and waived, that there was "no need to determine whether pre-and post- Miranda sessions were part of a single continuous chain of events." The Court of Appeals affirmed defendant's conviction, but on different grounds, and ruled that the fact that defendant's pre- Miranda statement was not incriminating did not eliminate the need to determine whether the sessions were part of a "single continuous chain of events." The logical conclusion to defendant's argument is that any incriminating pre- Miranda statement automatically triggers the "single continuous chain of events" rule and that there can be no definite, pronounced break thereafter. This analysis, however, is flawed because "no one factor is determinative and each case must be viewed on its unique facts." See People v Paulman , 5 NY3d 122 (2005).
Here, I find that defendant's written confession is valid. Defendant's interrogation by Sgt. Rafter lasted for approximately thirty minutes, and while the record is silent as to when the interrogation took place, it had to have ended prior to 4:57 A.M., at which time the defendant was received at St. Barnabas Hospital. There was no testimony suggesting that any interrogation took place other than that testified to by Sgt. Rafter and Det. Londino; Rafter's interrogation was completed before the defendant was taken to the hospital, i.e., before 4:57 A.M. The last time entry on defendant's hospital records is 6:15 A.M. Detective Londino testified that he arrived at the 46th Precinct at 9:00 A.M. and that he read defendant his Miranda warnings at 9:30 A.M. Defendant signed his statement at 11:10 A.M., at the precinct.
Clearly, defendant's confession is removed in time, separated by a time span of more than four and one-half hours, from the pre- Miranda interrogation; during that hiatus, defendant was taken from the Precinct to the hospital and returned at least 75 minutes later. The second, post- Miranda, interrogation was conducted by a different interrogator, apparently several hours after the defendant's return to the precinct, during which time he was not questioned. Although Sgt. Rafter was present during Det. Londino's interrogation, there was no evidence that he participated in it. There is also no evidence that Det. Londino used the information obtained by Sgt. Rafter to leverage his interrogation of the defendant.
While there is no bright-line test as to how long the break must be in order to permit the admission of post- Miranda statements which follow a non- Mirandized interrogation, courts have found custodial statements given after Miranda warnings sufficiently removed in time to break the chain where there has been a pronounced break in the interrogation. People v Rodriguez, 231 AD2d 477 (1st Dept 1996); People v Rodriguez , 49 AD3d 431 (1st Dept 2008); People v Santos , 3 AD3d 317 (1st Dept 2004) (six hours); People v Divine, 21 AD3d (1st Dept 2005) (four hours); People v Wilkinson, 2 AD3d 512 (2nd Dept 2004) (five hours); People v Sanchez, 278 AD2d 889 (4th Dept 2000) (two hours); People v Gray, 51 AD3d 63 (1st Dept 2008) (45 minutes).
Defendant further argues that his removal to the hospital for medical treatment is not the type of "pronounced break" required to permit admission of the post- Miranda statements. He submits no authority for this argument and this court does not find it persuasive. An ambulance ride to a hospital, examination by several nurses and physicians, treatment, and an ambulance ride back from the hospital to the precinct, is certainly the type of change of scene which would distract an ordinary person from focusing on the illegal questioning and resulting statement and remove its taint from the later, post- Miranda, interrogation.
There was a sufficiently pronounced, definite break between the illegal questioning conducted by Sgt. Rafter and the questioning conducted by Det. Londino that the latter was not tainted by the illegality of the former.
Moreover, I find that the Miranda warnings were properly administered by Det. Londino and that defendant made a knowing, intelligent and voluntary waiver of his rights. Where a defendant indicates understanding of Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant waived those rights." People v Sirno, 76 NY2d 967 1990).
Here, defendant was read his Miranda warnings by Det. Londino at approximately 9:30 A.M. The People produced evidence, in the form of testimony and writing: (1) showing that the warnings were read to defendant; (2) defendant affirmative replies that he understood each and every Miranda right read to him; (3) that defendant wished to waive those rights; (4) defendant voluntarily made the written statements. Consequently, defendant's motion to suppress his written statement is denied.
Sufficiency of the Notice
Defendant's final claim is that the People should be precluded from offering evidence of the oral statement made by him to Det. Londino, following the completion of the written statement, on the grounds that proper notice was not given to him pursuant to CPL § 710.30 (1) (a). Defendant contends that he was only given notice of the People's intention to introduce the oral statement made by him to Det. Londino when the statement was introduced at the hearing.
The People submitted a memorandum of law and argue that (1) the statement should be admissible because the People complied with CPL § 710.30 (1) (a) by serving sum and substance of those oral statements, (2) the statement is substantially consistent with the noticed written statement, and (3) any deficiencies in compliance with CPL § 710.30 were rendered moot by defendant's suppression motion because defendant moved in his omnibus motion to suppress "any and all statements."
Where a non-noticed statement is made at the same time as a noticed statement to the same police officer in the same location, notice of one statement may be found sufficient to cover both. See People v Cooper, 78 NY2d 476 (1991); People v Garcia, 290 AD2d 299 (1st Dept 2002); People v Morris, 248 AD2d 169 (1st Dept 1998); People v Martinez, 203 AD2d 212 (1st Dept 1994). Where the notice is provided in one form, unnoticed statements "substantially similar" to those will not be precluded, despite the fact that they were not specifically mentioned in the notice. See People v Wilson, 144 AD2d 980 (4th Dept 1988); People v Bennett, 56 NY2d 837 (1982) [oral statement substantially same as written confession]; People v Valdivia, 236 AD2d 225 (1st Dept 1997) [statements in written form substantially consistent with noticed statement]; People v Kelly, 200 AD2d 440 (1st Dept 1994) [videotaped statement substantially identical to noticed statement]; People v Slater, 166 AD2d 828 (3rd Dept 1990) [oral statements, without attached written summaries, sufficient].
While a notice need not contain a verbatim report of defendant's oral statement, failure to include a significant admission renders the notice deficient to the extent of the omission. People v Ludolph, 63 AD2d 77 (4th Dept 1978). See also People v St Martine, 160 AD2d 35 (1st Dept 1990) [defendant made numerous statement to law enforcement, the People gave notice of only one statement; the remaining statements were precluded for failure to give notice]. In People v Greer, 42 NY2d 170 (1977) the non-noticed statement was made in the same place and time to the same police officer as the noticed one. The Court found the notice defective because the non-noticed statement was much more inculpatory.
Here, the noticed statement did not indicate that defendant told Det. Londino that he bought the gun from a male black known as "Fox," that Fox" transported handguns, revolvers and semi-automatics from North and South Carolina or that "Fox" used rental cars in his transport of these weapons. The oral statements which followed the written statement were the results of a new interrogation commenced by Det. Londino, relating to the defendant's knowledge regarding illegal firearms, separate and apart from the initial interrogation which had related to the defendant's possession of the firearm at issue here and the reasons for his possession of it.
Although defendant's oral statement was made shortly after the noticed statement, it cannot be said that it is consistent with the written statement such that failure to give notice should be excused. This court finds that the People have failed to include a significant admission in their noticed statement, one that is as inculpatory as the written noticed statement (as it demonstrates the defendant's familiarity with the availability of illegal firearms and the methods used to obtain and distribute them), and one that is not part and parcel of the written statement made to Det. Londino, which related only to the reasons for which the defendant had retrieved the firearm and his admission as to its purchase. The oral statement is clearly not substantially similar to defendant's written statement.
The failure to serve timely notice cannot be cured by the defendant's opportunity to challenge the statement upon learning of it during the suppression hearing. Nor did defendant waive the right to seek and obtain preclusion when he moved to suppress "any and all" statements. People v St Martine, 160 AD2d 35 (1st Dept 1990). The requirement of notice within 15 days is strictly adhered to except for good cause shown.
Thus, as timely notice of this statement was not provided pursuant to CPL § 710.30 (1) (a), and as the People have not demonstrated any good cause for the delay in disclosure, defendant's motion for preclusion of the oral statement made to Det. Londino at the 46th Precinct, following the completion of the written statement, is granted. The People are precluded from using this statement on their case in chief.
This constitutes the decision and order of the court.