An indictment was filed against the defendants accusing them of the crimes of robbery in the second and third degrees, criminal impersonation in the first degree, and other charges. It is alleged that on or about December 19, 2005, in the County of the Bronx, defendants Robinson and Elliot, acting in concert with each other, forcibly stole property, consisting of DVDs and currency, from Frank Fargas. It is further alleged that the defendants pretended to be police officers, and that during this pretense the defendants committed or attempted to commit a felony, i.e., robbery in the second and third degrees, and related offenses.

The defendants, claiming to have been subjected to an unlawful search and seizure, have moved to suppress a box of DVDs, a chain, and an imitation pistol that was retrieved from a vehicle. Defendants also moved to suppress certain statements allegedly made by them. This court conducted a combined Mapp / Huntley / Wade hearing on March 21 and March 22, 2007. The following constitutes the court's decision and order:

I make the following conclusions or findings of fact, based on the testimony of the police officers called by the People, whom I found to be credible in all respects.

The People called Police Officer Brian Croke, assigned to the 48th Precinct, Bronx County, who testified that on December 19, 2005, at approximately four o'clock p.m., he was driving in a marked police car with his partner, Police Officer Rasheem Narvaez, in the area of East Tremont Street and Crotona Avenue in Bronx County. The officers received a radio report of "10-10," "gun-run," which indicated that a civilian witness had reported to 911 that two male blacks, one wearing a black jacket, and one wearing a brown jacket and armed with a gun, had been observed with a gun at 720 East Tremont Street. The civilian caller indicated that the suspects had claimed to be police officers.

When the officers arrived at East Tremont Street, in a matter of minutes following the call, Barbara Rivera approached their car and identified herself as the person who had called 911. She was carrying a cell phone in her hand. Ms. Rivera stated that two men had taken a third person's DVDs, and that one of the perpetrators was armed with a gun. She pointed to a white Lincoln Town car, a livery cab, which was approximately two car lengths away from where the police officers were, and in an excited manner repeatedly stated that the two male perpetrators were in that car.

The officers observed three people in the cab, two people in the back seat and the driver. [*2]They followed the cab and pulled up alongside of it. While this was occurring, Ms. Rivera was walking along the sidewalk, continuing to point to the livery cab and repeating "they're in there, they're in there." When the car turned at East Tremont and Southern Boulevard, the police officers turned on their lights and siren and effectuated a stop. As Police Officer Croke approached the cab, he could see in plain view, on the floor in front of the rear seat near to defendant Robinson, a box of DVDs, which was later found to contain approximately seventy-five DVDs.

The defendants were removed from the cab at gunpoint and placed under arrest. While the defendants were being pulled out of the car, Barbara Rivera was still standing on the sidewalk and repeating that the defendants "were them." Officer Croke identified the defendants as the persons removed from the vehicle and arrested. After the defendants had been removed from the cab, an imitation pistol was recovered under the passenger's seat near where the DVDs were located and where defendant Robinson had been seated. As Mr. Robinson was being handcuffed, and other officers appeared on the scene, he purportedly stated, in sum and substance, "All of this for DVDs?"

Following the apprehension of the defendants, at a point in time when both defendants were in handcuffs and surrounded by several uniformed police officers, Ms. Rivera was asked by Police Officer Calvin Thomas if she was certain of her identification. She responded in the affirmative.Det. Marie Hale, the People's second witness, testified that she is a detective assigned to the Internal Affairs Bureau. In essence, she testified that she became involved in the case because it was alleged that the defendants had impersonated police officers; it is the duty of her unit to investigate such incidents. On December 19, 2005, at approximately 8:00 p.m., her partner and she received information that they were to respond to the 48th Precinct. At the precinct, she spoke briefly with arresting Officer Croke, who told the detectives that defendants Elliot and Robinson had been arrested for a robbery, and that they had in some manner impersonated police officers.

Det. Hale testified that she interviewed the defendants separately. Miranda warnings were read to the defendants by her partner while she was present in the room. She was seated next to her partner, and both she and her partner were seated facing each defendant, who was placed on the opposite side of the table in the interrogation room. Her partner read the Miranda warnings out loud; she did not recall if he read verbatim from the printed sheet. The written "Miranda Warnings"^[FN1] were placed on the table so that each defendant could read the warnings [*3]silently while they were being simultaneously read out loud by her partner. Each of the defendants simply responded "yes" when asked if he understood each of the six separate warnings, with the sole exception that defendant Elliot answered, "Yes, no problem," when asked, "Now that I have advised you of your right (sic), are you willing to answer questions?" The responses to the Miranda questions were recorded by Detective Hale's partner, after which each defendant signed the written form in Detective Hale's presence.

Detective Hale testified that each defendant then separately gave an oral statement, after which each committed the oral statement to writing.^[FN2] No promises were made to defendants, and no threats were made to the defendants at the time that the statements were given. Each interview lasted between 20 to 30 minutes. The defendants were not given any food or any drink, nor a rest room break.

Det. Hale testified that defendant Elliot, before committing his statement to writing, stated, in essence, as follows: "I saw a guy with another guy against the wall; I took DVDs from a peddler, they're illegal anyway; I assisted in the robbery but I didn't impersonate the police officers; and I didn't have a badge or a shield." When asked by Detective Hale why he refused to include these oral statements in his written statement, defendant Elliot responded "because that would be acting in concert and I don't want to be charged with that."

Notice of these oral statements was given to defendant Elliot in the People's Voluntary Disclosure Form (VDF), although, as defense counsel pointed out at the hearing, the VDF erroneously stated that the oral statements were written statements.^[FN3]

The People have the burden of going forward to show the legality of the police conduct. The defendants, however, bear the ultimate burden of proving by a preponderance of the [*4]evidence that the physical evidence should be suppressed.

The defendants argue that the police failed to question Ms. Rivera as to the basis of her knowledge or belief that a crime had been committed, and thus the ensuing stop of the vehicle was unlawful. Contrary to defendants' arguments, the forcible stop of the vehicle and immediate arrest of the defendants were in all respects proper.

At the outset, the Court notes that the police need only have a reasonable suspicion that the defendants were engaged in criminality in order to effectuate a vehicle stop. As was held in People v. Figueroa (2007 NY App. Div. LEXIS 3774, 2007 NY Slip Op 2575 [2d Dept. 2007]):

However, as the People correctly contend, the police were not required to have "probable cause" that a crime had been committed in order to pull over the vehicle in which the defendant was a passenger. "It is fundamental that in order to stop a vehicle the police must have a reasonable suspicion', based on objective evidence, that the occupants were involved in a felony or misdemeanor" (People v Coleman, 183 AD2d 840, 584 NYS2d 89; see CPL 140.50[1]).

In this case, the police had more than a reasonable suspicion of criminality; they had probable cause to effectuate the stop and arrest of the defendants. Probable cause to arrest a suspect may be based upon information provided to the police by an identified civilian informant that the suspect has committed a crime. (People v Robinson, 147 AD2d 596, 537 NYS2d 890 [2d Dept 1989]; People v. Cunningham, 135 AD2d 725, 522 NYS2d 626 [2d Dept. 1987].) Thus, for example, in People v. Robinson (supra ), under facts similar to those presented in the instant case, police officers, in response to a radio run, met a civilian informant, who informed the officers that the defendant had menaced him with a gun. The civilian informant accompanied the officers to a nearby community center, where the civilian pointed out the defendant. The officers seized the defendant's jacket, which he attempted to pass to another person, and which was found to contain a gun. Suppression of the gun was denied as probable cause existed to arrest the defendant.

Similarly, in the present case, Ms. Rivera never lost sight of defendants, and as was the case in Robinson, she lead the officers to the defendants by pointing them out as the officers approached the vehicle. Ms. Rivera, an identified civilian witness, had reported that the defendants had stolen property, and that a gun had been observed. The witness was present at the scene, waited for the arrival of the police officers, was clearly excited, and told the police officers that she was the person who had called 911. All of these circumstances gave credence to the civilian's report that a crime had occurred (see People v. Cunningham, supra [reliability of citizen informant was demonstrated by her obvious familiarity with the situation]), and thus Ms. Rivera's statements were sufficient to establish probable cause to effectuate a lawful arrest.

Even if the officers did not have probable cause for the vehicle stop, they clearly had a reasonable suspicion of criminality which justified stopping the vehicle. Once the vehicle was lawfully stopped, the presence of the box of DVDs in plain view the proceeds of the crime gave rise to probable cause for the arrest of the defendants. The chain recovered from the person of defendant Robinson was recovered as incident to his arrest.

Having determined that the vehicle was lawfully stopped, the next issue is the seizure of items from the vehicle. Although the defendants have standing to the limited extent of challenging the stop of the vehicle (People v. May, 81 NY2d 725, 593 NYS2d 760, 609 NE2d 113 [1992]), the defendants, as mere passengers in a taxi, lack standing to challenge the search of the lawfully-stopped vehicle, as to which they demonstrated no legitimate expectation of [*5]privacy. (People v Millan, 69 NY2d 514, 520, 508 NE2d 903, 516 NYS2d 168 [1987]). A passenger in a lawfully stopped vehicle generally has no standing to challenge the search of the interior, and the limited exception which applies when the passenger is charged with possession of a weapon or drugs under a statutory presumption is not applicable in this case. (People v Bell, 9 AD3d 492, 780 NYS2d 373 [2d Dept. 2004].)

In any event, under the automobile exception to the warrant requirement (see People v Belton, 55 NY2d 49, 432 NE2d 745, 447 NYS2d 873 [1982]), the police may conduct a warrantless search of a vehicle when they have probable cause to believe that the vehicle contains evidence or contraband, and there exists a "nexus" between the arrest and the probable cause for the search. (People v. Blasich, 73 NY2d 673, 543 NYS2d 40, 541 NE2d 40 [1989] [when the occupant of an automobile is arrested, if the circumstances that supply probable cause for the arrest also give the police probable cause to believe that the vehicle contains contraband, evidence of the crime, or a weapon, a warrantless search of the vehicle is authorized, not as a search incident to arrest, but as a search falling within the automobile exception to the warrant requirement]; People v Galak, 81 NY2d 463, 467, 616 NE2d 842, 600 N.Y.S2d 185 [1993]; People v. Baez, 24 AD3d 112, 804 NYS2d 316 [1st Dept. 2005] [police officers conducting buy-and-bust operation could conduct a warrantless search of van which was used to store drugs]); People v. Cruz, 7 AD3d 335, 777 NYS2d 66 [1st Dept. 2004], leave denied, 3 NY3d 671, 817 NE2d 828, 2004 NY LEXIS 2602, 784 NYS2d 10 [2004] [search of entire vehicle permitted under automobile exception was authorized following defendant's arrest for an observed sale of marijuana]). Moreover, a limited search of the "grabbable area" under the seat and on the floor where the DVDs were observed was permissible as a search incident to the defendants' arrest, in order to preserve public safety, as the officers had a reasonable basis to believe that a weapon might be present in the livery vehicle (see, People v. Gokey, 60 NY2d 309, 469 NYS2d 618, 457 NE2d 723 [1983]; People v. Sass, 217 AD2d 428, 629 NYS2d 410 [1st Dept. 1995], appeal denied, 87 NY2d 907, 641 NYS2d 237, 663 NE2d 1267 [1995] ["to leave a bag reasonably suspected of containing contraband in a livery cab would pose a danger to public safety, and thus its seizure falls outside the warrant requirement"].)

Wade Issues

The defendants claim that an improper identification procedure was utilized, and move to preclude the pre-trial identification as well as the prospective identification testimony of the eyewitness, Barbara Rivera. With regard to the identification, the People have the burden of going forward to show that the pre-trial identification procedure was not constitutionally impermissible. The defendant, however, bears the burden of establishing by a preponderance of the evidence the procedure was impermissible. If the procedure is shown to be improper, the People then have a burden of proving by clear and convincing evidence that the prospective in-court identification testimony, rather than stemming from an unfair pre-trial confrontation, has an independent source.

As to the identification of the defendants, that identification was not police-arranged procedure, but was spontaneously made. (People v. Taylor, 34 AD3d 349, 824 NYS2d 278 [1st Dept. 2006]; People v. Kirkland, 192 AD2d 414, 596 NYS2d 689 [1st Dept. 1993].) Here, Ms. Rivera continuously pointed out the defendants as the suspects, and on her own volition followed the car carrying the defendants. A similar situation was presented in People v. Peterkin (8 Misc [*6]3d 1011A, 801 NYS2d 780 [Supreme Court, Bronx County [ Fisch, J.]). In Peterkin, following a report of a woman in distress at a certain location, police officers responded to the location and observed a male standing and a female on the ground in the vestibule of a building. As the officers neared the entrance, the male opened the door and the officers heard the female shouting, "that's him, that's him." The suspect fled and was apprehended approximately 40 to 50 feet from the vestibule. The female complainant arrived moments later and, without any questions from the officers, again stated repeatedly, "that's him, that's him." Here, similarly, the witness was walking alongside the police car and, without prompting, voluntarily pointing and telling police, "those are the guys." She then witnessed the apprehension and reiterated the identification which, in essence, she had already made. The mere fact that she was later asked, again, by a police officer if she was certain of her previous identification did not transform her spontaneous identification into a police-arranged procedure.

In any event, even if the "final" identification is considered a separate showup identification, it was permissible because it was both reasonable and not unduly suggestive. The requirement of reasonableness element is satisfied by proof that the showup was conducted in close geographic and temporal proximity to the crime itself. (People v Jackson, 2 AD3d 893, 895, 768 NYS2d 40 [2003], lv denied, 1 NY3d 629, 808 NE2d 1286 [2004]; People v Ortiz, 90 NY2d 533, 537, 686 NE2d 1337, 664 NYS2d 243 [1997]; People v Duuvon, 77 NY2d 541, 544-545, 571 NE2d 654, 569 NYS2d 346 [1991].) Here, there was an unbroken chain of events leading from the initial point out to the post-arrest identification, satisfying the requirement of close proximity to the time and place of the crime. The procedure was not unduly suggestive given these circumstances. (People v McCorkle, 272 AD2d 273, 274, 709 NYS2d 519 [2000], lv denied 95 NY2d 936, 744 NE2d 148, 721 NYS2d 612 [2000].)

Huntley Issues

With regard to the statements attributed to the defendants, both defendants move to suppress oral and written statements allegedly taken by Det. Hale on December 19, 2005, on the ground that these alleged statements were involuntarily made within the meaning of C.P.L. 60.40, as well as the fruits of the poisonous tree of an unlawful arrest. A confession or admission is admissible at trial in this state only if its voluntariness is established by the People beyond a reasonable doubt.

The court has already determined above that the alleged statements were not the product of an illegal arrest.

The statement attributed to defendant Robinson i.e., "All of this over DVDs" was spontaneous and thus not the product of a custodial interrogation. Spontaneous statements made by defendants in custody which are not the product of questioning are admissible irrespective of whether Miranda warnings were given or not. (People v Starks, 2007 NY Slip Op 695 [3d Dept. 2007].) In Starks, the police encountered the defendant, who matched the description given by an eyewitness to a shooting. When directed at gunpoint to raise his hands, defendant stated, "I wasn't shootin' at them, the Bloods were shootin' at me." Since the statement was made without any interrogation or provocation by police, it was held to be spontaneous. Here, the statement was similarly spontaneous, and while it was made by the defendant as he was being handcuffed, it was not in any way the result of questioning by the police officers. [*7]

The oral and written statements were elicited only after proper Miranda warnings were given. The defendants maintain that the evidence was insufficient to establish that proper warnings were given, as Det. Hale was unable to recall if her fellow officer read the Miranda warnings verbatim from the printed sheet. It is established, however, that Miranda warnings need not be recited verbatim; all that is required is that the warnings given reasonably apprise the defendant of his rights. (People v. John, 288 AD2d 848, 732 NYS2d 505 [4th Dept. 2001]; People v. Parker, 258 AD2d 479, 682 NYS2d 922 [2d Dept. 1999], leave denied, 93 NY2d 877, 711 NE2d 653, 689 NYS2d 439 [1999]). No "talismanic incantation" is required to satisfy Miranda's requirements. (California v. Prysock, 453 U.S. 355, 101 S. Ct. 2806, 69 L. Ed. 2d 696 [1981].) In the present case, the testimony indicated that the warnings were read from a written document, and that document itself was placed on the table in front of the defendants so that they could follow the printed text. Under these circumstances, the evidence sufficed to establish that the defendants were reasonably apprised of their rights.

In addition, the statements, both written and oral, were given freely and voluntarily. There is no evidence that the treatment of the defendants rendered the statements involuntary. (Compare People v. Anderson, 42 NY2d 35, 396 NYS2d 625, 364 NE2d 1318 [1977]). While there was no proof that the defendants were fed, given beverages, or permitted to go to the bathroom, the length of the interrogation was brief, and there is no reason to speculate that defendants were hungry, thirsty, or denied the necessary use of the facilities.

710.30 Issues

Defendant Elliot moves to preclude his oral and written statements on the ground that the People's CPL 710.30 notice was insufficient. The People's VDF erroneously stated that the defendant made only a written statement, and did not give notice that both oral and written statements were obtained at the same interview. As defendant's counsel forthrightly admitted at the hearing, however, aside from this one error, the "sum and substance" of the alleged statements was accurately divulged. The time, place and "sum and substance" of the statement is all that is required to satisfy CPL 710.30. (People v. Coleman, 256 AD2d 473, 682 NYS2d 402 [2d Dept. 1998].) As stated in People v. Lopez (84 NY2d 425, 643 NE2d 501, 618 NYS2d 879 [1994]):

The People were required to inform defendant of the time and place the oral or written statements were made and of the sum and substance of those statements ( see, People v. Bennett, 56 NY2d 837, 453 NYS2d 164, 438 NE2d 870; People v. Laporte, 184 AD2d 803, 804-805, 584 NYS2d 662, lv. denied 80 NY2d 905, 588 NYS2d 831, 602 NE2d 239; People v. Holmes, 170 AD2d 534, 535, 566 NYS2d 93, lv. denied 77 NY2d 961, 570 NYS2d 495, 573 NE2d 583). Full copies of the statements need not be supplied but they must be described sufficiently so that the defendant can intelligently identify them.

As the defendant had notice of the sum and substance of the alleged statements, and could readily identify their content and move to suppress in a timely manner, the People's inconsequential error of identifying part of the statement as written rather than oral does not warrant preclusion. Indeed, the court notes that defendant's omnibus motion moved to preclude "an oral statement reduced to a writing," indicating that defendant was not mislead in any way. (See People v. Dillon, 30 AD3d 1135, 815 NYS2d 574 [1st Dept. 2006], leave denied, 7 NY3d 812, 855 NE2d 803, 822 NYS2d 487 [2006] [difference between the noticed and unnoticed [*8]statements was inconsequential].)

Conclusion

The motions are denied.

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DateJ.S.C.

Appearances: