Defendant is charged by criminal summons with one count of Harassment in the Second Degree (P.L. 240.25 [2]). A Wade/Huntley/Dunaway hearing was held on January 18, 2022. The Court now finds as follows:

Police Officer Justin Keeney testified that he has been a police officer for four and a half years and currently works for the City of Rye Police Department. Prior to this he was employed by the Mount Vernon Police Department for one and a half years. On February 11, 2021, at approximately 9:55am, he received a radio call from an officer assigned to the Mount Vernon City Hall detail about a white man, wearing a black jacket, following a woman from North 6th Avenue to Mount Vernon City Hall. The male suspect was allegedly running southbound on North 6th Avenue and following a female, yelling at her and videotaping her. Driving a marked police car, Officer Keeney arrived to the scene approximately one to two minutes after receiving the radio call. He testified that he observed a person fitting the description in the vicinity of South 5th Avenue between 1st and 2nd streets, approximately one block away from Mount Vernon City Hall. The officer then got out of the car and approached the male, identified as the defendant. The officer asked the defendant what happened. He allegedly stated that Ms. Hughes was not to work on time, that her dog shits in his yard and that she is to blame for him not [*2]securing a job at the Mount Vernon Building Department. After hearing this, the officer went to City Hall to pick up the female complainant, Ms. Hughes to conduct a show-up identification, while other officers remained with the defendant. Officer Keeney drove Ms. Hughes to South 5th Avenue where they observed defendant standing on the sidewalk. Ms. Hughes identified the defendant as the man that was harassing her and following her. Defendant was not arrested at the scene. Later on February 11, 2021, Ms. Hughes informed the officer that she knew the defendant because he lives near her mother's house on South 6th Avenue. She also told the officer that the defendant has bothered her before but she has ignored him. Ms. Hughes returned to the police station on March 2, 2021 with a detailed written statement documenting the incident and other attempts by the defendant of harassing her at City Hall. On March 31, 2021, an eyewitness, Kristyn Vanderberg-Reed, provided a sworn statement about the incident. A criminal summons was issued for the defendant on April 9, 2021 charging him with Harassment in the Second Degree (P.L. 240.26 [2]).

The Court will first address that portion of the motion seeking suppression of identification testimony. At the hearing, defense counsel acknowledged that the parties were neighbors and known to each other, and as such defendant was not contesting the show-up identification. Accordingly, the motion to suppress the identification is denied.

Turning to defendant's Huntley motion, defendant moves to suppress his statements on the ground they were involuntarily made. CPL § 710.30 [1][a] requires the prosecution to serve notice of any statement intended to be offered at trial made by defendant to law enforcement within fifteen days of arraignment. The People served notice pursuant to CPL § 710.30 alleging that on February 11, 2021 at 9:55am, while standing on South 5th Avenue, defendant stated to Mount Vernon police officers, "She allows her dog to shit on my lawn".

Officer Keeney testified that after receiving the radio call for a foot pursuit, he observed the defendant walking on South 5th Avenue. Officer Keeney exited his vehicle and approached the defendant. He testified that he asked the defendant what happened?, what is going on?, to which the defendant made the noticed statement, about the dog defecating in his yard. The other statements allegedly made by the defendant, to wit: Ms. Hughes was not to work on time and that she prevented him from securing a job at the Mount Vernon Building Department, were not noticed by the People.

The Court finds that Officer Keeney had a common-law right of inquiry to approach and question the defendant under level 1 of the DeBour analysis (People v DeBour, 40 NY2d 210 [1976]. Furthermore, defendant was not in custody when his statements were made. An individual is deemed to be in custody when he has been "deprived of his freedom of action in any significant way" (People v Turkenich, 137 AD2d 363 [2d Dept 1988] citing Miranda v Arizona, 384 US 436). In deciding whether the accused was in custody prior to being interrogated, the subjective beliefs of the accused are not determinative. The appropriate test is "what a reasonable [person], innocent of any crime, would have thought had he been in the [accused's] position" (People v Yukl, 25 NY2d 585, 589 [1969]). The factors to be weighed include the amount of time the defendant spent with the police, the manner, if any, in which his freedom was [*3]restricted, the location and atmosphere of his questioning, the degree of cooperation which he exhibited, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature (see People v Coggins, 234 AD2d 469 [2d Dept 1996]; People v Bailey, 140 AD2d 356, 358 [2d Dept 1988]). Threshold crime scene inquiries designed to clarify the situation and questions that are purely investigatory in nature do not need to be preceded by Miranda warnings (People v Mayerhofer, 283 AD2d 672 [3d Dept 2001]; see also People v Huffman, 41 NY2d 29 [1976]).

Based upon the credible testimony of Police Officer Keeney, the Court finds that the defendant was not in custody at the time he made the noticed statements. The officer's questioning of the defendant was investigatory and not accusatory in nature. He approached the defendant on a public street to investigate a report of a woman being followed by a man from North 6th Avenue to Mount Vernon City Hall, and his question to defendant "what happened?" was designed to clarify the nature of the situation confronted, rather than to coerce a statement (People v Huffman, supra). The defendant was not restrained in any way or told he could not leave, and the officer did not have his gun drawn. Miranda warnings were not required to be given since the defendant's statement was not elicited as a result of a custodial interrogation (People v Bennett, 70 NY2d 891 [1987]; People v Turner, 234 AD2d 704 [3d Dept 1996]). Furthermore, defendant was not arrested at the scene but issued a criminal summons almost two months after the alleged incident.

With respect to the defendant's additional statements, which were unnoticed, the People did not indicate that they intended to use those statements at trial. Nevertheless, when a defendant moves for suppression of statements and a Huntley hearing is held, the defendant is "afforded ... the same opportunity for a court to pass upon the admissibility of the statement as he would have had if timely notice had been given" (People v Amparo, 73 NY2d 728, 729 [1988]). At the hearing the court has an opportunity to review the circumstances under which the statement was given and to determine its voluntariness. Further, the defendant is put on notice of the People's intent to use the statement and is provided ample opportunity to challenge the statement (People v Castillo, 2018 NYLJ LEXIS 3860 [Sup Ct. Kings Co. 2018] (citing People v McCray, 53 Misc 3d 19, 23 [2d Dept. 2016], People v Schnugg, 257 AD2d 669, 670 [2d Dept 1999]).

Here, the People consented to and the Court conducted a Huntley hearing, wherein the unnoticed statement was elicited. "Notice of intention to offer statement evidence need not be served upon the defendant where there is no question of voluntariness (see People v Greer, 42 NY2d at 178)." "Having been alerted to the unnoticed statement [the defendant] was afforded a full opportunity to litigate the statement's admissibility. By proceeding in this fashion, the defendant waived preclusion " (People v Castillo, 2018 NYLJ LEXIS 3860 [Sup. Ct. Kings Co. 2018]).

At the hearing, the prosecution has the burden of proving that the statements made by defendant to law enforcement were voluntary. A defendant who is in custody may not be subject to custodial interrogation without first receiving his Miranda rights. With respect to this unnoticed statements, the court finds that the statements were also elicited during investigatory questioning and were not the product of a custodial interrogation. Accordingly, the Court finds that the unnoticed statements were voluntary and Miranda warnings are not required. These [*4]statements are admissible (People v Cox, 215 AD2d 684 [2d Dept 1995]).

This constitutes the Decision and Order of this Court.