The defendant is charged under the above-referenced indictment with Robbery in the First Degree [PL § 160.15(3)], two counts of Robbery in the Second Degree [PL § 160. 10(1) and (2)(a)], Attempted Gang Assault in the First Degree [PL § 110/120.07)], Attempted Gang Assault in the Second Degree [PL § 110/120.06], Assault in the Second Degree [PL § 120.05(2)] and two counts of Criminal Possession of a Weapon the Fourth Degree [PL § 265.01(2)].

A pre-trial Dunaway, Mapp, Wade and Huntley hearing was held before this Court on May 5, 18 and 27, 2009.

FINDINGS OF FACT

The witnesses for the prosecution were Police Officer Cesar Diaz, Detective Adolpho Hidalgo, Detective Gregory Jackson, Dulce Espinoza, Jovanny Espinoza, Isaac Jimenez and Jorge Hernandez. The sole witness for the defendant was Amy Cruz, a paralegal with the District Attorney's Office. I find the testimony of the Police witnesses and of Ms. Cruz to be fully credible, and the testimony of the complaining witnesses to be mostly credible.

Police Officer Cesar Diaz of the Brooklyn South Gang Squad testified that on January 29, 2008, he was in an unmarked car and plainclothes working a 7:00 AM to 3:00 PM shift in the 72nd Precinct when he saw a group of Hispanic males at the corner of 44th Street and 4th Avenue screaming across 4th Avenue at another group of Hispanic males; their faces looked combative. He saw the defendant crossing the street towards the other group with his left hand making a tight grip like he was holding something. It appeared that he was about to draw a weapon; he could see its handle. His partner stopped the car and he got out and said "Police." Everyone stopped. He patted defendant down and recovered an icepick. Defendant said, "it's just an icepick—you cannot do anything." and "I am Reyes Loco" ("Crazy Kings," a gang). Officer Diaz arrested defendant. He later vouchered the icepick. [*2]

Officer Diaz testified that he talked to Amy Cruz from the DA's office about the arrest and the DA declined to prosecute the arrest, claiming an icepick is not a weapon per se such that possession of one without more is a crime. While defendant was at the Precinct, Detective Hidalgo put defendant in a line-up for a case for which there was an open investigation, and defendant was arrested for that crime when there was a positive identification. Additionally, Detective Gregory Jackson called the complaining witnesses of another crime to come to the Precinct, and they provided confirmatory identification of defendant, who was then arrested for that crime. These two indictments have been consolidated.

The arrest was not a ruse or pretext. Officer Diaz credibly testified that he was in an unmarked police vehicle heading southbound on Fourth Avenue in Sunset Park, with the windows open and was stopped at a red light on the corner of 44th Street. At the corner, he observed two groups of Hispanic males screaming at each other from opposite sides of Fourth Avenue, a six lane, two-way thoroughfare with a divider. The groups were screaming, waving their arms and had angry, combative faces. He observed defendant, who was on the corner to his right, walk directly in front of his car on 44th Street, from the west to the east side of Fourth Avenue. As the testimony has demonstrated, the defendant is left handed, and his left side was the side facing the officers. It was 3:00 PM in broad daylight. As defendant walked across the street towards the other group, his left hand was gripping something in the manner that one grips a weapon. Officer Diaz had been on the Brooklyn South Gang Squad for four years by then, and had received special training concerning gangs. He was in a neighborhood which has regular gang activity. Officer Diaz believed possession of the ice pick, combined with defendant's aggressive behavior, constituted a crime.

Detective Adolpho Hidalgo testified that on November 30, 2007, he had interviewed Richard Valderi at Lutheran Medical Center. Mr. Valderi said he was the victim of an assault; there were five perpetrators and he suffered 20 puncture wounds. Mr. Valderi did not know the perpetrators, but described them as young Hispanic males. Detective Hidalgo indicated he had prior experience with assaults, including assaults with icepicks, which leave puncture wounds, which are small and round like a mosquito bite. Photos of Mr. Valderi's wounds were admitted into evidence as People's #1 and 2.

Detective Hidalgo stated that when he learned that defendant had been arrested with an icepick, he decided to put him into a line-up. He did not know at that point that the DA would decline prosecution of the crime for which he had been arrested. There had been no prior photo array shown to Mr. Valderi. He called Mr. Valderi and said they had arrested someone with an icepick and he wanted him to come to the Precinct. He got five Police Officers for fillers, and defendant chose position #3. Although there was a picture taken of the line-up where everyone but defendant was smiling, Detective Hidalgo testified that when the line-up actually occurred, everyone had similar facial expressions.

Detective Hidalgo testified that he was with the complaining witness (Ricardo Valderi) supervising the line-up and that the complaining witness chose defendant immediately, saying he was the one involved in the stabbing. Defendant was then placed under arrest for the stabbing.

Amy Cruz, a paralegal at the District Attorney's office, testified at the request of the defense. She stated that she works for the DA at ECAB, screening cases. On January 29, 2008, as part of her duties, she interviewed Officer Diaz concerning the arrest of the defendant. After [*3]refreshing her recollection, she recounted that the Officer told her that he saw defendant with what appeared to him to be a knife, saw defendant place it into his pocket, identified himself, searched defendant and discovered an icepick. She stated that her supervisor told her to decline prosecution as an icepick is not a per se weapon.

Dulce Espinoza testified that she is 16 years old and a student. She testified that she knew the defendant as "Leché" (milk in Spanish), a name she learned from hearing people use it on the street. She first saw him in September 2005 from her balcony with his friends, and after that saw him almost everyday in the neighborhood, although she never spoke to him.

Ms. Espinoza testified that, in 2006, she moved elsewhere in Brooklyn and did not see "Leché" again until Halloween of 2007 at which time she was involved in an altercation involving "Leché," during which he pushed her with his body, and her cousins, Isaac Jimenez and Jovanny Espinoza, were injured. Sometime after the incident she said the Police showed her a picture of "Leché" from his "My Space" page and she identified him. On the back of the photo she wrote, "he pushed me when I tried to help my cousins." She testified that defendant was not wearing a mask and she readily recognized him, but the other perpetrators were wearing masks.

Jovany Espinoza testified that he's 17 years old and does not go to school or work. He testified that he met "Leché" in the park by Fort Hamilton High School in May of 2007. He was with his cousin Isaac at the time. He has seen Leché on a friend's My Space page and has visited Leché's page himself, as it is not "private." He said one of the photos on the defendant's web page is of an arm bearing a tattoo of a carton of milk with "Leché" written under it. The defendant has this distinctive tatoo.

He testified that in September 2007 he saw defendant again. He said he, Isaac and Isaac's mother were in a bakery, and when they left, defendant and his friends confronted them. He believed they wanted to hit him. They said they were Reyes Locos, the name of a gang. Isaac's mother said "let's go" and the group called them "pussies."

He testified that on October 31, 2007, he was attacked by a group of people, one of whom he recognized as "Leché." After the incident, he spoke to the Police and told them he was attacked by "Leché." On January 29, 2008, at the Precinct, he was shown photos and was able to recognize the defendant from his My Space page and the incident in the bakery. He stated he wrote on the photo that Leché was the one who hit him with a bat, and signed the back of a picture.

Isaac Jimenez testified that he is 17 years old. He first saw "Leché" in spring 2006 in the library with his sister, who was friends with him. After that, he saw "Leché" every few weeks in the neighborhood, usually around Sunset Park.

He testified that when he joined the Ninos Malos ("Bad Boys") gang in 2007, he was not friends with the defendant. He left the gang in the summer of 2007. He said he learned "Leché" was a member of Reyes Locos. These gangs do not get along. He, his mother and his cousin Jovanny later saw defendant at a bakery. Defendant and his friends were "calling him out." He believed that they wanted to hit him.

On October 31, 2007, he was involved in an altercation involving "Leché." On that date, he spoke with Police in the hospital. He said that Reyes Locos ("RL") had cut his face, and named "Leché" specifically. On January 29, 2008, he identified a photo of defendant at the [*4]Precinct and wrote on the back that it was Leché and "he cut my face". The photo was entered into evidence as People's #7. He also identified defendant in court.

Jorge Hernandez testified that he's 17 years old. He is living in a residential drug treatment program pursuant to a case in Kings Supreme. His attorney was present during his testimony. He said he met "Leché" two years ago in the park, and "Leché" told him he was RL. Leché asked him if he was Ninos Malos, but he was not then in a gang. At some point he joined Ninos Malos, and he saw defendant about every two weeks on the subway. During these contacts, "Leché" would mention that he was Reyes Locos and sometimes, defendant threatened to kill him.

In the fall of 2007, he said he was "jumped" a few times. Once he was jumped while going to McDonald's by five to seven kids claiming they were Reyes Locos. He said Leché hit him with a bat, several times, using his left hand. He ran home. He did not call the Police.

Then he saw defendant on Halloween, 2007, which was the night he got stabbed. He told the Police he was stabbed by "Leché" before he was shown any photos. He identified the defendant from a photo shown to him at the hospital. He wrote his signature on a picture of defendant on January 29, 2009, which was entered into evidence as People's #8 . He said defendant had a picture of a milk carton tattooed on his left arm. The witness pled the Fifth Amendment when asked about his own crimes.

Detective Gregory Jackson of the 72nd Precinct testified that on October 31, 2007, he responded to a Lutheran Medical Center emergency room call. He was told it was a gang assault. He interviewed the victim and several of his friends. He was told that Isaac Jimenez's brother was having trouble with the RL gang and went to Mexico. He was told the gang was now bothering Isaac on a constant basis. The witnesses told him that the assault was committed by "Leché." Isaac's sister Karinna and another woman, Juanita Aguilar, went with him to the Precinct. At the Precinct, the women were given access to a computer; they went on My Space and pulled up a picture of defendant. He printed it out. He then went back to the Emergency Room and showed it to Dulce Espinoza, who identified defendant, as did both Jovanny Espinoza and Jorge Hernandez, who was lying on a gurney. Isaac Jimenez was being treated at the hospital and he did not speak with him there. They told him defendant went to Middle School 36. He went to the school and got defendant's "government" name and address. Apparently the address was not current. He prepared an I-card.

When defendant was arrested on January 29, 2008, the I-card "popped." He took photos of defendant at the Precinct and he asked the complainants (Dulce, Isaac and Jovanny) to come to the Precinct. They were shown copies of the new photos and they identified defendant. He then processed the arrest. Isaac said that "this is Leché. He is the one who cut my face." Giovanni wrote on the back of the picture that "this is Leché, the one that hit me on the head with a bat," and he signed his name. Dulce wrote "this is Leché, the one who punched me when I tried to help my cousins and my friend." The witnesses all identified defendant in court.

The photos Detective Jackson took at the Precinct of defendant were admitted as People's #6, 7, 8 and 10. People's #10 is of defendant's milk carton tattoo. Detective Jackson was unable to locate the DD5 forms on which he documented his interviews with the complainants. He testified to a "precinct-wide search" and the transition to computerized forms. Because the forms are missing, the DA called the witnesses to testify at the hearing.

[*5]CONCLUSIONS OF LAW

Every stop, search and seizure must be analyzed in a step-by-step fashion, to review the articulable facts, credible objective evidence and the rational inferences that flow therefrom. See, People v. DeBour, 40 NY2d 210 [1976]; People v. Hicks, 68 NY2d 234 [1986].

The first inquiry is one to determine what Officer Diaz was legally and constitutionally permitted to do in the situation he encountered on January 29, 2008.

In Terry v. Ohio [391 US 1, 22 (1968)] the US Supreme Court recognized the necessity of the "stop and frisk." The key is whether the encounter's intrusion on the individuals's right to privacy is outweighed by the State's interest in effective law enforcement and public safety. Id. at 27; see also People v. Cantor, 36 NY2d 106, 111 [1975]; People v. Debour 40 NY2d 210, 217.

The standard for evaluating police conduct in street encounters is one of reasonable suspicion, which requires a less stringent test than probable cause. People v Terry, 391 US 1, 27; People v. Barreto, 161 AD2d 305 [1st Dept1990]. The officer does not need to be absolutely certain that an individual is armed, but rather the question is whether it would be reasonably prudent for the officer to believe that his safety or that of others would be endangered. People v Terry, 391 US 1, 27. The issue is whether the stop was justified at its inception and whether the search was reasonably related in scope to the circumstances which compelled its initiation. People v. DeBour, 40 NY2d 210, 222; People v. Cantor, 36 NY2d 106, 111.

In the instant matter, Officer Diaz credibly testified that he was a passenger in an unmarked police car heading southbound on Fourth Avenue in Sunset Park, with the windows open and was stopped on the corner of 44th Street for a red light. He had a full opportunity to observe. At the corner, he observed two groups of Hispanic males screaming at each other from opposite sides of Fourth Avenue, a six lane, two-way thoroughfare with a divider. The groups were screaming, waving their arms and had angry, combative faces. He observed defendant, who was directly in front of him on 44th Street start walking in front of the car from the west to east side of Fourth Avenue. As the testimony has demonstrated, the defendant is left handed and his left side was the side facing the officers. As defendant walked across the street towards the other group, his left hand was gripping something in the manner that one grips a weapon. It was 3:00 PM and broad daylight. Officer Diaz had an excellent view of defendant's left hand. Officer Diaz had been on the Brooklyn South Gang Squad for four years. He was an officer in housing police for six years before that. Under the circumstances, Officer Diaz was justified in having reasonable suspicion, and therefore was justified in stopping the defendant. Under DeBour, Officer Diaz was authorized to make not only a "request for information" and a "common law inquiry, " but also was authorized to stop and detain defendant. To encounter two groups of male teens on two opposite corners, waving their arms and yelling, is not capable of "innocent interpretation" as defense counsel suggests. It is a circumstance that is appropriate for further investigation, particularly by an officer in the gang squad.

While the defense makes much of Officer's Diaz's testimony being inconsistent, he consistently stated defendant had something in his left hand which he was holding with a tight grip as one would hold a weapon. The fact that he testified at the Grand Jury that it was an object he couldn't identify and at the hearing that it appeared to be a knife is of no consequence. As the testimony shows, on the date of the arrest, he told the DA's paralegal, Ms. Cruz, that it appeared to be a knife, but turned out to be a metal icepick. Given this, plus the Officer's [*6]personal expertise, and the facts and circumstances herein, which clearly show that the Officer saw this incident from a short distance in broad daylight, the defense is clearly misplaced in its assertion that the Officer's testimony rises to the level of manifestly untrue or impossible. See, People v. Garafola, 44 AD2d 86, 88 [2nd Dept. 1974]; People v. Stroman, 83 AD2d 370, 372 [1st Dept 1981].

Officer Diaz said he saw defendant had a tight grip on an object which, from his experience, appeared to be a knife or gun. He may have seen a handle, he may have seen the glint of steel. It happened in a matter of seconds. An officer is authorized to pat down a stopped individual if he reasonably suspects a danger of physical injury. CPL § 140.50(3); People v. Sanchez, 38 NY2d 72 [1975]. Given the circumstances, it is clear that Officer Diaz was justified in patting down the defendant for the limited purpose of removing the perceived threat. See, People v. Benjamin, 51 NY2d 267 [1980]; People v. Smith, 93 AD2d 432, 434 [1st Dept 1983]. In fact, there was virtually no innocent interpretation which could have been drawn from what Officer Diaz saw, and, as such, his actions were justified.

We then come to the arrest, which invokes the principles of probable cause. While the relevant statute does not list "ice pick" as a weapon per se, it has a provision which anticipates the possibility that an instrument such as an icepick could be found to be a weapon.

In pertinent part, PL § 265.01 says a person is guilty of Criminal Possession of a Weapon the Fourth Degree when he or she possesses:

(1) ...any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star"; or

(2) ...any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another; [emphasis added].

The statute (PL 265.00) does not define stiletto, so we must turn to the dictionary. The Merriam-Webster Dictionary defines stiletto, in pertinent part, as a pointed instrument for piercing holes for eyelets or embroidery. An ice pick is used for piercing holes in ice, a distinction which in this case may be one without a difference. But, even if, arguendo, an icepick does not fit the definition of any of the weapons specifically listed in the statute, it seems quite clear that an icepick being brandished during a street confrontation falls under the alternative rubric of "any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another."

The Court further notes that an icepick is an instrument not normally carried in public by law abiding citizens, and that it is readily capable of causing serious physical injury. CPL § 140.50(3); People v. Wise, 47 AD2d 969 [3rd Dept 1975]; People v. Juarez, 13 Misc 3d 1131 [Cty Ct Westchester 2006]; People v. Modesto, 262 AD2d 586 [2nd Dept 1999]; People v. Brathwaite, 276 AD2d 707 [2nd Dept 2000]; Yancey v. Conway, 46 AD3d 1042 [3rd Dept 2007]; People v. Daniel, 35 AD3d 877 [2nd Dept], app. den., 8 NY3d 945 [2007]; People v. Adamkiewicz, 298 NY 176 [1948]; People v. Owusu, 93 NY2d 398 [1999]. [*7]

In fact, the Court of Appeals attempted to resolve this issue in 1948. In People v. Adamkiewicz [298 NY 176, 179], the Court noted that PL § 1897, the virtually unchanged (except, most notably, to add more weapons to the list) predecessor to CPL § 265.01, has two categories of weapons, a list where possession without more is a crime, as unlawful intent is presumed, and another category which "includes any other dangerous or deadly instrument or weapon with intent to use unlawfully against another". The Court held that an ice pick fit into the second category, and that "the intent to use the object unlawfully against another is a necessary ingredient which must be established in order to constitute the crime" as no presumption applied. In this case, the Court found the statute to be " broad enough, under the rule of ejusdem generis in statutory construction and interpretation ^[FN1], to include an ice pick". It is the considered opinion of this Court that the legislature should revisit this issue and amend the statute to clear up any ambiguity by clearly delineating the items where intent is presumed and those where it must be proven. Because of the problems with this statute, defendants routinely challenge it on constitutional grounds, and on the ground that their possession was not "knowing" or that they did not have the requisite intent. See People v. Voltaire,18 Misc 3d 408 (Crim. Ct. Kings Co. 2007); People v. Fana,23 Misc 3d 1114A (Crim. Ct. NY Co. 2009). A thoughtful analysis on the issue of knowing possession is contained in People v. Small, 157 Misc 2d 673 (Sup Ct. NY Co. 1993).

At any rate, it is clear that the arrest was not a ruse or pretext. Officer Diaz believed possession of the ice pick, combined with defendant's aggressive behavior (demonstrating intent to use unlawfully against another), constituted a crime. Despite the DA's discretionary decision not to prosecute, it appears that Officer Diaz was not only sincere in his belief, but also, legally correct.

Statement notice pursuant to CPL § 710.30 (1)(a) was timely given for the statements made by defendant at the scene on January 29, 2008, the sum and substance of which were "It's just an icepick—you cannot do anything," and "I am Reyes Loco."

At a hearing to suppress a statement made to law enforcement officials, the People must demonstrate that the arrest was based upon probable cause; that burden has been met. The People also have the burden of demonstrating, beyond a reasonable doubt, that the defendant's statement was voluntary. People v. Anderson, 42 NY2d 35 [1977]; People v. Huntley, 15 NY2d 72 [1965]. If applicable, the People must also prove that the defendant knowingly, intelligently and voluntarily waived his or her Miranda rights prior to making the statement. Miranda v. Arizona, 384 US 436, 44 [1966]; People v. Williams, 62 NY2d 285, 288-289 [1984].Defendant's statements, made to Officer Diaz at the time of the arrest were not prompted by questioning, but were voluntary and spontaneous utterances, and are therefore admissible. See, People v Ferro, 63 NY2d 316 [1984], cert denied, 472 US 1007. Spontaneous statements are those made without apparent external cause and which are not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed. People v. Maerling, 46 NY2d 289 [1978]; People v. Lanahan 55 NY2d 711 [1981]; People v. Ferro, 63 NY2d 316. In this matter, the defendant made the statements immediately after Officer Diaz [*8]recovered the icepick from defendant's jacket pocket. Defendant had not yet been arrested. Officer Diaz said nothing to prompt the defendant's statements. In addition, it is noted that defendant was not in custody at the time he made the statement. Terry stops do not automatically constitute custody. See, Berkemer v. McCarty, 468 US 420, 439-440 [1984]; US v. Brigoni-Ponce, 422 US 873, 880-881 [1975]; People v Alls, 83 NY2d 94,99 [1993].

Identification Notice pursuant to CPL § 710.30 (1)(b) was given at arraignment for an identification of the defendant by Ricardo Valderi, the complaining witness in the November 30, 2007 incident, at a lineup conducted at the 72nd Precinct on January 29, 2008.

The defense cites People v Sellers, 168 AD2d 581 [2nd Dept 1990]for the proposition that the lineup should be suppressed because it was the product of an unlawful arrest. However, the discretionary decision of the DA not to prosecute this case does not in and of itself undermine the lawfulness of the arrest.

Defendant also argues that the line-up procedure was unduly suggestive because the police told the complaining witness that they had arrested a man with an icepick and wanted him to come down to the Precinct for a line-up. The court rejects this argument. Detective Hidalgo did nothing to imply that defendant was anything but a suspect. He did not state that the complaining witness would definitely see the person who assaulted him in the line-up. See, People v. Warner, 125 AD2d 430 [2nd Dept 1986]; People v. Hernandez, 70 NY2d 833, 834 [1987].Likewise, defendant's assertions that the other participants in the line-up were smiling is not supported, and in fact were refuted, by the credible testimony that they smiled for the photo but not when Mr. Valderi was viewing the line-up.

Finally, defendant argues that the other participants in the line-up were not substantially similar to defendant in appearance. The Court finds the composition of this line-up, which contained five other persons of similar height, age, ethnicity and skin tone to defendant, was not unduly suggestive. There is no requirement that a defendant in a lineup be surrounded by people nearly identical in appearance to him. See, People v. Chipp, 75 NY2d 327 [1990]; People v Mason 138 AD2d 411, 412; People v Collins, 136 AD2d 720, 721)]; People v. Henderson, 170 AD2d 532 [2nd Dept], lv denied, 77 NY2d 995 [1991]. While there was some variation in the height, weight and age of the fillers, there was enough similarity to find the lineup was not unduly suggestive. See, People v. Wiley, 137 AD2d 735 [2nd Dept], lv denied, 71 NY2d 1035 [1988]; People v. Herrera, 219 AD2d 511 [1st Dept], lv denied 87 NY2d 847 [1995].

Finally, defendant argues that the People failed to show that the witnesses who identified

the defendant's photographs were sufficiently familiar with him. The Court finds this argument to verge upon the frivolous. While the witnesses were all teenagers, and displayed various degrees of credibility concerning their personal histories, and sometimes displayed a lack of understanding of the questions, each and every one of them credibly testified as to their prior history with, and basis of their knowledge of, the defendant. In each and every case, the defendant was known to the witness, and each had seen him on many occasions. There is no issue of suggestibility. People v. Gissendanner, 48 NY2d 543 [1979]. There was no true identification by the teens who are the complaining witnesses in the in October 31, 2007 incident, just a confirmation of the defendant's identity. People v. Tas, 51 NY2d 915 [1980]. Dulce [*9]Espinoza had virtually daily encounters with defendant for a period of over six months; Jovanny Espinoza had a scary confrontation with defendant outside a bakery weeks before the October 31, 2007 incident; Isaac Jimenez had multiple conversations with defendant over a six month period and was present at the bakery incident; Jorge Hernandez received multiple threats from defendant for over a year and had a physical confrontation with defendant just weeks prior to the October 31, 2007 incident. The Court find defendant's arguments on this point to be entirely unavailing.

Based on the foregoing analysis and discussion, the defendant's Dunaway, Mapp, Wade, and Huntley motions to suppress are denied in their entirety.

This shall constitute the decision and order of the court.

ENTER:

Hon. Debra Silber, J.S.C.

Dated: June 19, 2009