The defendant is charged with murder in the second degree and criminal possession of a weapon in the second and third degree. A Huntley/Wade hearing was ordered by a justice of concurrent jurisdiction. This court conducted those hearings on January 19th and 22nd, 2007.

The prosecution presented six witnesses: Detectives Frank Naeder, Anthony Hodi, Guy Gazzillo, John McNally, Nigel Bristow and Police Officer Aristotle Psathas. I found their testimony to be credible, reliable and uncontroverted.

On July 24, 2006, James Grant was killed in the vicinity of Sparton Avenue, on Staten Island. Later that day, Detective Frank Naeder interviewed civilian witness B at the 120th precinct.^[FN1] This witness informed Detective Naeder that Donnell Collier had shot and killed Mr. Grant.

Armed with the information provided by witness B, Detective Guy Gazzillo prepared a photo array. Using a computer program designed for such a task, he inserted the defendant's name into the program. His computer monitor then displayed a photograph of the defendant and of several other individuals with similar physical characteristics. Detective Gazzillo composed two separate photo arrays using the defendant's photograph and the photographs of five people with similar features.^[FN2] He then handed one array to Detective Naeder and showed the second array to witness A. This witness viewed the array (People's 5 in evidence) and instantly identified the defendant, whose photograph was placed in the sixth position, as the person who had shot James Grant.

Meanwhile, Detective Frank Naeder showed a photo array (People's 1 in evidence) to civilian witness B. This witness quickly identified the defendant, whose photograph was in the second position, as "Donnie, the guy that shot James." [*2]

On July 26, 2006, at approximately 2:30 PM, Detectives Naeder, Gazzillo and John McNally participated in the apprehension and arrest of the defendant at 151 Jersey Street. The defendant was immediately brought to the 120th precinct.^[FN3]

The defendant was taken to a debriefing room, where an interview was conducted. Both detectives entered with the defendant and Naeder read Miranda warnings from a printed piece of paper (People's 4 in evidence). The defendant stated that he would "love" to tell the detectives what happened but that he must first speak to his attorney, Manuel Ortega. The questioning of the defendant terminated immediately. Detective Naeder attempted to call Mr. Ortega. Detective McNally went to get the defendant something to eat.

After a series of calls were exchanged, Mr. Ortega confirmed that he represented the defendant on an open criminal matter and that he would be representing him on whatever charges were brought forward on this case. He advised Detective Naeder not to speak with his client, nor to allow anyone else to ask him any questions, and arranged to have one of his legal associates appear to monitor the line-up procedures.

At approximately 4 PM, the defendant finished eating the food that had been provided by Detective McNally. He was then placed into a holding cell, to await the arrival of his attorney.

An hour later, as Detective McNally walked past the holding cell area, the defendant called out and stated that he now wanted to talk about what had happened to Mr. Grant. The detective told the defendant that since he was represented by counsel, he was unable to speak to him. Defendant repeated his request. Detective McNally told the defendant that he could not speak to him. The defendant insisted that he wanted to tell Detective McNally, and only McNally, what had happened. Detective McNally then said "go ahead, tell me what you want to say." The defendant requested to make his statement inside the debriefing room. He was told that his request would have to be cleared by his superiors. McNally then approached his supervisor and asked for guidance. The supervisor authorized him to remove the defendant from the holding cell and to place him in the interview room, in order to accommodate the defendant's desire to make a statement in the absence of his attorney.

Once the defendant was taken to the interview room, he was uncuffed and seated in a chair. He then made a detailed and profanity laced statement, in which he admitted shooting James Grant. Detective McNally did not ask the defendant any questions, nor did he ask him to make a written or videotaped statement.^[FN4]

Following the arrest of the defendant, Detective Gazzillo drafted a search warrant application, in order to authorize a police search inside 151 Jersey Street, apartment GA, for evidence possibly connecting the defendant to the homicide under investigation. The warrant was signed by a judge and was executed at 6:35 PM. As a result of the search, a handgun was [*3]recovered from within the apartment.^[FN5]

After the defendant was in custody, witnesses A and B were contacted and directed to come to the 120th precinct to view a lineup. Police Officer Aristotle Psathas met witness B at the 120th precinct, at approximately 9 PM. Along with Detective McNally, PO Psathas walked witness B to the Staten Island District Attorney's office, at 130 Stuyvesant Street, in order for the witness to view the lineup.

At 9 PM, Detective Naeder went to central booking and selected five detained men to be used as fillers. These men were selected because they shared similar physical characteristics with the defendant. Each filler was given a black shirt and a baseball hat to wear during the lineup.^[FN6]

Witness A was picked up by Detective Nigel Bristow, sometime after 10 PM, and brought directly to 130 Stuyvesant Street.

The lineup was conducted in a specifically designed room. It had a two-way mirror, which prevented participants in the lineup from viewing anyone in the viewing room. Blinds on the window prevented any accidental viewing of the lineup suspects by the viewers. A separate area was dedicated to the videotape equipment that was used to videotape the lineup.^[FN7]

At 10:37 PM, witness B viewed the lineup, along with Detective Naeder, ADA Kathleen Naughton and the defendant's attorney, Raymond Rodriguez.^[FN8] After witness B was brought into the viewing room by PO Psathas, ADA Naughton briefly described the lineup proceeding while reading from a prepared script. When everyone was ready, the blinds were opened and witness B stated he recognized the defendant, who was seated in position number one ^[FN9], from "the incident." The entire lineup procedure was videotaped (People's 2 in evidence).

At 10:49 PM, witness A was led into the viewing room by Detective Bristow. After ADA Naughton read from her script, the blinds were opened and witness A identified the defendant, who had remained in position one, as someone whose face looked familiar.^[FN10] The entire lineup procedure was, once again, videotaped (People's 3 in evidence).

On November 16, 2006, Detective Anthony Hodi assembled a photo array, using the Photo Manager System program. After entering the defendant's name and NYSSID number, he [*4]selected the defendant's photograph, as well as the photographs of five similarly featured individuals. The defendant's photograph was placed in the second position. Detective Hodi then gave the photo array to Detective Gazzillo.

Detective Gazzillo showed this photo array (People's 6 in evidence)^[FN11] to civilian witness C, who was in the Staten Island District Attorney's office. Witness C identified the defendant as being involved in the murder of James Grant.

When a defendant seeking suppression of physical evidence has put forward sufficient factual allegations to warrant a pre-trial hearing, such defendant "bears the ultimate burden of proving that evidence should not be used against him" (People v Berrios, 28 NY2d 361, 367). Although a defendant carries the burden of proof at a suppression hearing, " the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance " (Berrios, 28 NY2d at 367, quoting People v. Malinsky, 15 NY2d 86, 91, n 2; People v Whitehurst, 25 NY2d 389, 391) (emphasis in original).

It is axiomatic that the purpose of a Wade hearing ^[FN12] is to determine whether police conducted pre-trial identification procedures were unduly and impermissibly suggestive so as to deny the defendant his due process rights (Stovall v Denno, 388 US 293; People v Adams, 53 NY2d 241). The People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pre-trial identification procedure. The defendant bears the ultimate burden of proving that such procedure was unduly suggestive (Berrios, 28 NY2d at 367).

A photographic display is suggestive when some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection (see People v Wright, 297 AD2d 391, 391; People v Cherry, 150 AD2d 475, 476; People v Dubois, 140 AD2d 619, 622, lv denied 72 NY2d 911; People v Shea, 54 AD2d 391, 391). An examination of the arrays employed in this case demonstrates that they were not suggestive. The defendant's appearance and pose did not differ greatly from those of the men in the other photographs. The men, including the defendant, appeared close in age, and possessed similar hairstyles, skin tones and facial characteristics (see Wright, 297 AD2d at 391; People v Robert, 184 AD2d 597, 598, lv denied 80 NY2d 933).

Based on all of the facts and circumstances presented in this case, defendant's motion, to suppress the civilian witnesses in-court identifications based upon the [*5]unnecessarily suggestive photo arrays, is hereby denied.

Defendant also contends that evidence of the line-up identifications should be suppressed because the differences with respect to the facial characteristics of the six lineup participants rendered the procedure unduly suggestive. It is by now black letter law that while participants in a line-up should share the same general physical characteristics (see People v Riddick, 229 AD2d 453, 454, lv denied 88 NY2d 993; People v Jackson, 211 AD2d 644, 644, lv denied 85 NY2d 863; People v Burns, 138 AD2d 614, 615, lv denied 71 NY2d 1024) "there is no requirement ... that a defendant in a line-up be surrounded by people nearly identical in appearance" (People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833) (see also People v Jackson, 98 NY2d 555, 559; People v Kirby, 34 AD3d 695, 695; People v Green, 14 AD3d 578, 578, lv denied 4 NY3d 831; People v Harvall, 196 AD2d 553, 554; People v Nieves, 183 AD2d 854, 856, lv denied 80 NY2d 907; People v Henderson, 170 AD2d 532, 533, lv denied 77 NY2d 995; People v Jackson, 151 AD2d 694, 694).

This Court has examined the videotapes of the lineups, which were introduced into evidence at this hearing and determines that the line-ups were not unduly suggestive. The fillers used were similar in appearance to the defendant and the line-up constituted a fairly representative panel upon which a witness could make a reliable identification (see, Kirby, 34 AD3d at 695; Robert, 184 AD2d at 598; People v Bishop, 167 AD2d 551, 551; Burns, 138 AD2d at 615). Additionally, the procedures utilized by the police in conducting the line-ups in this case were not unduly suggestive (United States v Wade, 388 US 218; People v Blake, 35 NY2d 331; People v Caban, 181 AD2d 787, 788, lv denied 80 NY2d 894).

Based on all of the facts and circumstances presented herein, defendant's motion, to suppress the line-up identifications, is denied.

At a Huntley hearing ^[FN13], the People have the burden of proving, beyond a reasonable doubt, that the defendant voluntarily waived his privilege against self-incrimination.

The defendant contends all of his statements to the police must be suppressed because they were the product of custodial interrogation, or its functional equivalent, following the assertion, not only by the defendant but also by his attorney, of the defendant's right to counsel.

It is uncontroverted that after being apprised of his rights by Detective Naeder, the defendant invoked his right to counsel. It is equally established that defendant's attorney advised Detective Naeder that he represented the defendant and that he would not permit his client to be questioned in his absence. In addition, Detective McNally, and his superior officer, each knew that the defendant and his attorney had invoked the defendant's right to remain silent.

"Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the [*6]presence of the attorney, of the defendant's right to counsel" (People v Arthur, 22 NY2d 325, 329; see also People v Rogers, 48 NY2d 167, 169; People v Hobson, 39 NY2d 479, 483; People v Vella, 21 NY2d 249)^[FN14] (compare People v Bing, 76 NY2d 331). The "rule is grounded in this State's constitutional and statutory guarantees of the privilege against self incrimination, the right of the assistance of counsel, and due process of law" (Hobson, 39 NY2d at 483; Arthur, 22 NY2d at 328).

Our Court of Appeals has found, in the New York Constitution, an expanded right to counsel that affords protections beyond the requirements of its federal counterpart (Bing, 76 NY2d at 338-339; People v Davis, 75 NY2d 517, 521; People v Spahalski, 12 Misc 3d 1198[A]). If the expanded right indelibly attaches, then any subsequent waiver of counsel elicited in the absence of an attorney is rendered ineffective (People v Settles, 46 NY2d 154, 164). New York's right to counsel can attach, whether a formal charge has been filed or not, when an attorney representing a suspect enters the case in connection with the charges under investigation (People v Grice, 100 NY2d 318, 321; People v West, 81 NY2d 370, 373-374; Hobson, 39 NY2d at 483; Arthur, 22 NY2d at 329), or whenever a suspect in custody unequivocally requests an attorney (People v Ramos, 99 NY2d 27, 32-33; People v Cunningham, 49 NY2d 203, 209). Both situations were present in the case before this court.

The Rogers rule is not absolute. It does not render inadmissible a defendant's spontaneously volunteered statement (Hobson, 39 NY2d at 483; People v Kaye, 25 NY2d 139, 144)(see also People v Gonzales, 75 NY2d 938, 939, cert denied 498 US 833; People v Maerling, 46 NY2d 289, 301; People v Nuesi, 266 AD2d 317,318, lv denied 94 NY2d 883; People v Shurka, 191 AD2d 724, 726, lv denied 81 NY2d 1080; People v Dabney, 75 AD2d 822, 823; People v Brooks, 69 AD2d 884, 886; People v Colon, 62 AD2d 398, 404). However, in order for a suspect's statement to be deemed spontaneous, "the spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed" (Maerling, 46 NY2d at 302-303; see also Gonzales, 75 NY2d at 939).

The defendant was arrested at approximately 3:30 PM. He was taken to the 120th precinct for questioning. Detective Naeder read the defendant his Miranda warnings. The defendant unequivocally stated that he would not answer any questions prior to speaking to his attorney. The detectives then placed a call to the defendant's attorney. Counsel advised Detective Naeder that he represented the defendant and that all questioning must be conducted only with counsel present.^[FN15]

At approximately 5 PM, Detective McNally was walking by the defendant, who was in a holding cell only a few feet away from McNally's desk. The defendant called out to Detective McNally and told him that he wanted to tell him, and only him, his statement. McNally replies that he can't speak to the defendant without his lawyer being present. The defendant insists on talking to McNally. McNally then invited the [*7]defendant to blurt out what he wanted to say. The defendant countered by stating that he wanted to first go into the interview room. Detective McNally then asked his supervisor, Lieutenant Neilson, for advise. Neilson tells McNally to take the statement, despite the defendant's prior invocation of counsel. McNally then removes the defendant from the holding cell and takes him into the interview room. Once inside the room, the defendant gives the statement that is the subject of this hearing.

Detective McNally did not ask the defendant any questions, nor did he ask the defendant to reduce his statement to writing.^[FN16]

The People have the burden of proving the genuine spontaneity of the defendant's statements, beyond a reasonable doubt (Brooks, 69 AD2d at 886). The court must objectively determine whether defendant's statement can be said to have been triggered by police conduct that should reasonably have been anticipated to evoke such a statement (Rhode Island v Innis, 446 US 291, 300-301; People v Lanahan, 55 NY2d 711, 713; People v Lynes, 49 NY2d 286, 295; Spahalski, 12 Misc 3d at 14).

As stated earlier, in order for a suspect's statement to be deemed spontaneous, "the spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed" (Maerling, 46 NY2d at 302-303; see also Gonzales, 75 NY2d at 939). At issue is whether Detective McNally's induced, provoked, encouraged or acquiesced in the defendant making a statement in the absence of his counsel.

In People v Maerling (46 NY2d 289), the defendant, arrested for murder and robbery, told a guard that he wanted to see the duty officer. When the duty officer responded, Maerling told him that he wanted to tell him something that no one else knows. The duty officer confirmed that Maerling wanted to talk about numerous robberies in order to work out a deal. The duty officer advised the defendant of his Miranda warnings.^[FN17] Although Maerling had previously invoked his right to counsel, this time he stated that he wanted to talk but would repeat his story to his attorney later. The duty officer told Maerling that only the District attorney could promise a plea deal. Maerling then asked to speak to the District Attorney. The duty officer stated that before he contacted the District Attorney, he would have to know what the defendant wanted discuss. The defendant then confessed to the murder for which he was under arrest.^[FN18]

After discussing the Rogers rule and its implications, the Court of Appeals in Maerling held that: [*8]

It is one thing for a police officer unavoidably to hear and thereafter to report a statement which in effect is forced upon him. It was quite another for [the duty officer] to engage in the long, two-way conversation whose direction became apparent almost from the beginning. In doing so, he trespassed on the spirit, if not on the letter, of the principles we have reviewed. It follows that Maerling's statement should be suppressed.

Similarly, in the case before this court, Detective McNally did not scrupulously honor the defendant's initial request to invoke his right to counsel. Instead, knowing that the defendant had invoked his right to counsel, he took the defendant out of his holding cell and into an interview room, closed the door, and let the defendant confess to his role in the killing of James Grant. While Detective McNally's actions may not have induced or provoked the defendant to confess, he certainly encouraged and acquiesced and then facilitated the defendant in making an inculpatory statement, in the absence of his attorney. For that the law requires suppression.

Accordingly, the defendant's motion, to suppress the statement he made to Detective McNally in the debriefing room, is granted and that statement is inadmissible on the People's direct case.

This constitutes the decision, opinion and order of the court.

________________________

JSC

Dated: February 14, 2007

Richmond, New York