Defendant was indicted for three counts of Criminal Possession of a Forged Instrument in the First Degree, and one count each of Petit Larceny, Unlawful Possession of Marijuana, Operating a Motor Vehicle Without a License, and Reckless Driving. See Penal Law §§ 170.30, 155.25, 221.05; Vehicle and Traffic Law §§ 509, 1212. Defendant moved to suppress physical evidence seized at the time of his arrest, an out-of-court identification by the complainant, and a statement allegedly overheard by the police. On February 9, 2007, this Court conducted a Mapp/Huntley/Wade/Dunaway hearing. For the reasons set forth below, defendant's motion to suppress is denied.

The sole witness was Police Officer Jason LaFond ("LaFond"). The Court finds LaFond to be credible and credits his testimony in all material respects. Defendant presented no evidence.

LaFond has been assigned to the 40th Precinct for two years and three months. See Minutes, 2/9/2007, at p. 41. On March 7, 2006, LaFond was assigned to routine patrol in a marked police car. Id. at pp. 4-5. At approximately 7:20 P.M., LaFond was driving southbound on Willis Avenue near 147th Street when he saw a yellow motorcycle parked at an angle. Id. at pp. 5-6. The defendant and a passenger were seated on the motorcycle and the complainant was standing next to them. They appeared to be arguing and yelling, and the complainant raised his arm and gestured for the police to approach. Id. at pp. 6-7.

LaFond pulled up next to the motorcycle and turned on the police car's lights. Id. at pp. 6-8, 39. The defendant sped off on the motorcycle, leaving his passenger behind in the complainant's grasp. Id. at pp. 7-8, 26-28. Thinking the motorcycle might be stolen, LaFond radioed for assistance, activated the police sirens, and gave chase. Id. at p. 7-8. LaFond watched the defendant drive southbound on Willis Avenue, proceed through a steady red traffic light at 146th Street, and then drive through seven more red lights. Id. at pp. 8-10. LaFond also saw the motorcycle weave through vehicular and pedestrian traffic at approximately 30-40 miles per [*2]hour, causing other vehicles to stop short to avoid defendant. Id. at pp. 9-10, 48. At 138th Street and Willis Avenue, the defendant lost control of his motorcycle, which slid to the ground in front of an unmarked police car. Id. at p. 10. LaFond called for an ambulance, arrested the defendant, and directed that the complainant be brought to the scene to find out the reason for the dispute. Id. at pp. 11-16, 48. LaFond never lost sight of the defendant. Id. at p. 11.

When the complainant arrived, he told LaFond that the defendant had tried to buy something from him with a counterfeit $20 bill. Id. at pp. 15-16, 87-89. The complainant provided the counterfeit bill to LaFond, who vouchered it. Id. at pp. 15-16. Without being asked any questions, the complainant identified the defendant, who was sitting alone and handcuffed in the back of the police car with the door open. Id. at pp. 16, 87-89. This identification occurred within 15 minutes after LaFond had first seen the complainant. Id. at p. 16.

During a search at the precinct, a second counterfeit $20 bill was found in the defendant's pants pocket, and eight bags of marijuana were taken from his jacket pocket. Id. at p. 17. Defendant did not produce a driver's license. Id. at p. 17. In addition, LaFond later searched the back of the police car and recovered a third counterfeit $20 bill. Id. at pp. 18-20. The bill found in the police car had the same serial number as the $20 bill recovered from the defendant's pants pocket. Id. at p. 20. Defendant was issued twelve tickets for the traffic infractions. Id. at p. 49.

While preparing the arrest paperwork, LaFond heard the defendant state from a nearby holding cell that he would tell the judge that he had bought the drugs earlier in the day and had gotten the money from that transaction. Id. at p. 18.

As to the Mapp/Wade/Dunaway portions of the hearing, the People had the burden of going forward with credible evidence tending to show that the police officers acted lawfully, and defendant had the burden of proving by a preponderance of the evidence that the police officers acted illegally. As to the Huntley hearing, the People had the burden of proving beyond a reasonable doubt that defendant's statement was voluntary. See People v. Huntley, 15 NY2d 72, 78 (1965). The People have met their burden of proof on the Huntley issue and their burden of going forward on the Mapp/Wade/Dunaway questions in this case. Defendant, on the other hand, has not met his burden of proof on the Mapp, Wade or Dunaway issues.

First, as to the Dunaway issue, the People presented ample evidence to meet their burden of going forward. LaFond was flagged down by the complainant after the officer had witnessed the complainant having a dispute with the defendant. That dispute provided a founded suspicion of criminality warranting a common-law inquiry by the police. People v. Smoot, 13 AD3d 144 (1st Dept. 2004), appeal denied, 4 NY3d 857 (2005); People v. Trellez, 189 AD2d 906 (2nd Dept. 1993); see also People v. Clark, 156 Misc 2d 839 (City Ct. Port Jervis 1993). When LaFond approached, the defendant fled the scene on his motorcycle, leaving his passenger in the grasp of the complainant. While flight alone is insufficient to "create a reasonable suspicion of criminal activity," it "may be considered in conjunction with other attendant circumstances" to establish "the necessary reasonable suspicion" to justify pursuit by the officers. People v. Martinez, 80 NY2d 444, 448 (1992) (citations and ellipsis omitted). Indeed, the First Department recently held that when the police have a founded suspicion upon which to make common-law inquiry, flight in response to an approach can sometimes elevate an encounter into reasonable suspicion justifying pursuit. See In the Matter of Al F., 17 AD3d 141, 142 (1st Dept. 2005). In light of the foregoing, and taking all the attendant circumstances into account - - namely, the dispute, the [*3]signaling for the police, the flight, and defendant's having left his passenger in the grasp of the complainant - - the Court finds that there was reasonable suspicion of criminal activity to pursue the defendant. See People v. Mattienzo, 81 NY2d 778, 780 (1993); People v. Sierra, 83 NY2d 928 (1994); People v. Pines, 99 NY2d 525 (2002). In any event, the defendant's erratic and reckless driving cannot be said to have been a "direct consequence of" LaFond's mere approach, and this conduct independently provided probable cause to arrest. People v. Dennis, 31 AD3d 810, 811-12 (3rd Dept. 2006). In this regard, police officers are duty-bound to use all reasonable means, including pursuit, to stop a vehicle being driven erratically. Saarinen v. Kerr, 84 NY2d 494, 502-03 (1994).

Second, as to the Mapp issues, the marijuana and the counterfeit $20 dollar bill taken directly from defendant's person were recovered pursuant to a search incident to a lawful arrest. People v. Rodriguez, 302 AD2d 240 (1st Dept. 2003). Further, defendant has not argued or shown that he has standing to contest the admissibility of the counterfeit $20 bill that was provided to LaFond by the complainant or the counterfeit $20 bill that was recovered from the back of the police car. In any event, no rights of the defendant were violated in the recovery of these items.

Third, with respect to the Wade issue, LaFond arranged for the complainant to come to the place of the arrest within fifteen minutes of being initially flagged down; the complainant then identified the defendant. This show-up identification was sufficiently proximate in time and place to the crime such that the identification was not unduly suggestive. People v. James, 192 AD2d 496 (1st Dept. 1993). Moreover, LaFond never lost sight of the defendant.

Finally, as to the Huntley portion of the hearing, the People have shown beyond a reasonable doubt that the defendant's statement was voluntary and was not the result of custodial interrogation. Although the defendant was in a holding cell, he was not asked any questions before he made the statement and thus there was no legal requirement that Miranda warnings be administered by that point. The defendant's statement was spontaneous and voluntary and is not subject to suppression on Huntley grounds. See, e.g., People v. Rodney, 85 NY2d 289, 292-93 (1995).

Defendant's motion to suppress is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated:March 22, 2007

Bronx, New York________________________

Joseph J. Dawson, A.S.C.J.