The defendants were indicted for two counts of Robbery in the Second Degree and one count of the Administrative Code Violation of Unlawful Sale or Possession of an Imitation Pistol; said charges arising from their alleged participation in the June 20, 2008 robbery of one Mr. Chunilall Raganauth.

Having reason to believe that their constitutional rights may have been violated by the police, both defendants have moved for the suppression of evidence in their respective omnibus motions. By decision and order, dated July 13, 2009, the Hon. James P. Griffin ordered a Dunaway/Huntley/Wade hearing for the defendant Molina; in addition, a Mapp hearing was ordered with respect to any property recovered from his person. The subject weapon in this matter, a "BB" gun, was recovered from the defendant's girlfriend's apartment, a location over which the defendant had not asserted a legitimate expectation of privacy. Justice Griffin did not, however, address the issue of whether or not the recovery of the weapon might have been the product of illegal questioning by the police and, hence, suppressible as the "fruit of the poisonous tree." In the People's affirmation in opposition to the defendant's omnibus motion (see, Affirmation of People, pgs. 9-10, dated June 23, 2009) the People, in arguing against the defendant's right to contest the seizure of the weapon at a Mapp hearing, stated the following:

"... the basis of the defendant's argument appears to be that the imitation pistol should be suppressed as the "fruit of the poisonous tree" in that its recovery was derived from a statement that he alleges was improperly obtained ... The People respectfully submit that this is not a proper basis for the granting of a Mapp hearing, but, rather, is an issue to be addressed at a Huntley hearing. Should the Court at a Huntley hearing determine that the statement that led to the recovery of the imitation pistol was unlawfully obtained, the exclusionary rule may apply, but, again, that is an issue for the Court at a Huntley hearing, not a Mapp hearing."

Based upon the above quoted statement, the Court finds that the People were aware of the fact that the issue of the gun being seized as a result of an improperly obtained statement might be addressed at the Huntley hearing; moreover, since Justice Griffin did not rule upon this issue, the "rule of the case" doctrine has no application here.

With respect to the co-defendant Mohabir, Justice Griffin ordered a Huntley hearing.

A combined Dunaway/Wade/Huntley hearing was held before this Court on December 15, 2009. The sole witness to testify at the hearing was Detective Timothy Feehan. The Court found his [*2]testimony to have been credible and worthy of belief.

During the questioning of Raganauth & Mohabir, the two detectives noticed inconsistencies in their respective stories; including the purported direction of flight of the robber. Therefore, the detectives decided to question Raganauth & Mohabir separately. At approximately 6:45 p.m., Detective Feehan escorted Mohabir into another room where he read him his Miranda warnings from a printed sheet. The defendant verbally indicated that he understood each warning and printed the word "yes" on a line after each warning, together with his initials: "mrm." Both the defendant and Detective Feehan signed their names at the bottom of the Miranda sheet, just below where the defendant acknowledged that having been advised of his rights he would be willing to answer questions.

Initially, Mohabir kept to his original story, that is, that he, along with Raganauth, were the victims of a robbery, but gradually after more questioning by both detectives, Mohabir admitted that the robbery of Raganauth had been planned by himself, "John," and "Tito" (who would eventually be identified as Roberto Molina). Upon his acknowledgment that he had actively participated in the robbery, Mohabir was in custody and no longer free to leave the precinct, if not yet formally arrested. At the request of the detectives, Mohabir composed a three paragraph written statement, finishing the document at 10:00 p.m. During the course of the preparation of the written statement, Mohabir, now in handcuffs, was removed from the station house and was [*3]driven^[FN1] to a location which he claimed was where Molina ("Tito") resided. At the subject location, Mohabir pointed out Molina's automobile to the detectives. A DMV computer check of the vehicle was done, and the results came back with Molina being the registered owner; in addition, the DMV inquiry yielded a photograph of Molina.

At 4:30 p.m. on June 23, 2008, Raganauth, who had been asked to come to the precinct to look at photographs, was shown a photo array that contained Molina's photograph in the No.5 position. After viewing the array, Raganauth stated that #

5 (Roberto Molina a/k/a Roberto Martinez) was "the person who put the gun in my waist on the day of the robbery."

The following day, June 24, 2008, the detectives located the alleged third perpetrator, John Sharabo (phoe), and continued their search for Molina. At approximately 8 p.m., the defendant was observed in front of his house, standing next to the Nissan Maxima that had been identified as belonging to him. The two detectives exited their vehicle and asked this individual his name. When he replied, "Tito," Molina was arrested and was placed into the police vehicle.

On the way back to the precinct, a conversation commenced between the non-Mirandized defendant, handcuffed in the back seat of the police vehicle, and the two detectives seated in the front. Detective Feehan told him the basis for his arrest and informed him that John and Matthew had already been arrested. The detective then expressed his concern about the gun, about it being "out there, anywhere" and about the possibility of anybody getting "hurt" by it. Detective Feehan would later testify: "I wanted to get to (sic) gun. It is a safety issue. If I could ever get a gun any time in regard to a case, I want to get it."

Molina replied that he could take the detectives to the gun, which was at is girlfriend's. He also stated that the gun wasn't real, that it was a BB gun or pellet gun. He further said that he thought the driver (Raganauth) was "in on it." Armed with the information concerning the whereabouts of the gun, the detectives stopped at Molina's girlfriend's residence in order to retrieve the weapon, prior to transporting the defendant to the station house.

The two detectives and the defendant arrived back at the 102 Precinct, approximately one half-hour after the defendant had been arrested and taken into custody. The defendant was brought to an interview room and was given Miranda warnings in the English language from a standard police form. The defendant initialed the printed form and signed his name at the bottom. Detective Feehan [*4]then asked him to "memoralize what we spoke about orally." Molina asked if it was O.K. if he wrote the statement in Spanish, and although Detective Feehan testified that up until that point he and the defendant were communicating without trouble in English^[FN2], the detective re-Mirandized the defendant in Spanish and, as he had done minutes before in English, Molina acknowledged that he understood his rights and was willing to answer questions. The dual sets of Miranda warnings were completed at approximately 8:25 p.m. A brief oral conversation ensued between the detectives and the defendant, followed by the defendant drafting a one page written statement in Spanish, which was completed at 9:00 p.m. As candidly admitted by Detective Feehan on cross-examination at this hearing, "...the written statement was him memorializing his version of the events and what he had discussed ... in the car ride" (hearing minutes, pg. 74, lines 16-19, dated December 15, 2009).

On June 25, 2008, at approximately 1 p.m., Raganauth arrived at the 102 precinct, where he viewed a lineup containing the defendant Molina and five "fillers." Molina was in the #

1 position, and he and the five fillers were all wearing white T-shirts and dark baseball-style caps. When asked if he recognized anyone, Raganauth replied that #

1 was the person who put the gun to his waist.

As a threshold matter, the Court finds that the arrest of this defendant was predicated upon legally sufficient probable cause, the defendant having been positively identified in a photo array by the victim of the crime, Mr. Raganauth. Also, the co-defendant Mohabir had identified this defendant's vehicle to the police, beside which he was standing when he was apprehended by the police and acknowledged that his name was "Tito."

Almost contemporaneously with him being placed under arrest and into a police vehicle for transport to the 102 Precinct, the defendant was informed of the basis of his arrest and of the fact that his two alleged accomplices had also been arrested. Then, while in handcuffs and prior to the administration of Miranda warnings, the defendant was asked about the location of the weapon that was utilized in the robbery. In seeking to convince the Court that the defendant's reply to Detective Feehan's inquiry should be found admissible, the People contend that the "public safety" exception (see New York v Quarles, 467 U.S. 649, 655-657, 104 S. Ct. 2626) to the Miranda rule (see Miranda v Arizona, 384 U.S. 436, 86 S. Ct. 1602) prohibiting [*5]custodial interrogation absent a valid waiver of constitutional rights is applicable.

In Quarles, a woman notified responding police officers that she had been raped and that the gun wielding man who had done so had just sought to escape by running into a nearby supermarket. A quick search of the store resulted in the apprehension of the suspect, but a frisk of this individual revealed an empty shoulder holster. When asked about the location of the gun, the man told the officer where in the store he had hidden it. Despite the fact that the suspect was in custody and had not been read his Miranda rights, the Supreme Court found the question about the location of the gun was permissible, thereby carving out what has become known as the "public safety" exception.

As the Appellate Division - Second Department reasoned in Matter of John C, 130 AD2d 246 (2nd Dept. 1987), "...the (Supreme) Court predicated the (public safety) exception upon a balancing between a police officer's need to ask questions reasonably prompted by a concern for public safety and the prophylactic rule protecting an individual's privilege against self incrimination" (Matter of John C, supra ., at 251, citing New York v Quarles, supra ., at 657).

Nevertheless, in Matter of John C, supra ., at 252, the Second Department concluded that the public safety exception is not viable in every situation involving weapons, stating:

"If inquiry as to the location of weapons were permitted in every case without the police being required to first give Miranda warnings, the exception would overcome the rule and inquiries as to the location of weapons would never be subject to the strictures of the Miranda rule "(Matter of John C., at 252).

Unlike the situation posed in Quarles, where the police had just apprehended a suspect whom they had every reason to believe had just secreted a gun in a supermarket where it posed a potential and imminent danger to the public; or in People v Oquendo, 252 AD2d 312, wherein the police had responded to a radio report of "shots fired" and observed a man fitting the description of the report and then chased the suspect who, when apprehended, stated that he had "fell down and dropped the weapon on 101st St. and Third Avenue;" or in People v Melvin, 188 AD2d 555, where a police officer arrived at the defendant's home, having to pass by numerous people, including children, to get to the front porch where he observed a woman lying in the doorway with a bullet wound in her chest, and the defendant admitted to the shooting, the facts and circumstances at bar do not lend themselves to the type of "volatile" situation whereby custodial interrogation of a non - Mirandized suspection would be permissible under the "public safety" exception.

Here, the arrest of the defendant on June 24, 2008, at approximately 8 p.m., was more than 4 days after the robbery that had occurred during the late afternoon of June 20, 2008. The defendant's two alleged accomplices had already been apprehended and arrested, and the investigation by the police had not developed any leads that other individuals might be involved in the crime. In fact, the prior questioning of Raganauth and Mohabir did not suggest that the weapon was loaded and/or operable. In short, there was no immediacy or volatile situation necessitating the police to question this defendant prior to the administration of Miranda warnings.

Therefore, the Court concludes that the facts of this case do not fall within the ambit of the Quarles - "public safety" exception, and the initial statement made by the defendant to the police regarding the location of the gun must be suppressed. [*6]

The seizure of the subject weapon, a BB gun or pellet gun, from the residence of the defendant's girlfriend was a direct result of the improper questioning of the defendant by Detective Feehan and his partner. "It is well settled that if admissions are obtained from a suspect as a result of unconstitutional police procedures which lead to the discovery of tangible evidence relating to the alleged crime, such tangible evidence in the absence of a waiver will not be admissible at the trial of the individual who made the admissions" (People v Paulin, 33 AD2d 105, aff'd 25 NY2d 445; citing Nardone v United States, 371 U.S. 338; Wong Sun v United States, 371 U.S. 471; see also People v Lavin, 182 AD2d 710, app den 80 NY2d 834, habeas corpus denied 1993 WL 262780, aff'd 17 F3d 391). Absent any showing of attenuation between the defendant's statement relating to the location of the gun and the resulting seizure of the weapon itself, or any other ground upon which to purge the initial taint, the Court is constrained to suppress the gun recovered at 94-24 143 Street.

The next issue to be addressed by the Court concerns the oral and written statements allegedly made by the defendant at the 102 Precinct, after he had been read Miranda warnings in both the English and Spanish languages. As found hereinabove, the Court concludes from the credible evidence adduced at the suppression hearing that the two detectives and the defendant did, in fact, engage in a substantive conversation concerning the underlying facts and circumstances of the crime, while still in the police vehicle and prior to any Miranda warnings being issued. The conversation included the location of the gun, the type of gun it was, and the fact that Molina believed that the driver was "in on it." Although the balance of the conversation was not explicitly described in detail during Detective Feehan's testimony, there was a clear concession by the witness that Molina's written statement was, in effect, the defendant memorializing his version of the events as had been discussed in the car ride to the precinct.

In 1986 the Court of Appeals was called upon to decide whether its decision in People v Chapple, 38 NY2d 112 (the so-called "cat out of the bag" case) remained viable in light of its possible inconsistency with the United States Supreme Court's holding in Oregon v Elstad, 470 U.S. 298. Answering in the affirmative, the Court of Appeals, in People v Bethea, 67 NY2d 364, concluded:

"...that the mandate of NY Constitution, article I, §6 that (n)o person ... shall ... be compelled in any criminal case to be a witness against himself' would have little deterrent effect if the police know that they can as part of a continuous chain of events question a suspect in custody without warning, provided only they thereafter question him or her again after warnings have been given" (People v Bethea, supra , at 366).

Here, the evidence at the hearing established a "continuous chain of events" from the moments following the defendant's arrest and initial questioning, until he was finally Mirandized at the station house approximately one-half hour later. In addition, the ride to the station house was punctuated by a brief stop at the defendant's girlfriend's house to recover the weapon, which may be construed as a physical nexus to the conversation itself, thereby eliminating any break in those communications. Once at the station house, the defendant was transferred from the police vehicle to an interview room and was questioned by the very same detectives who had arrested and were questioning him during the preceding half-hour.

Since there was no definite break, or attenuation, between the improperly obtained statements in the police vehicle which preceded Miranda warnings and the additional oral and [*7]written statements made at the 102 Precinct, the Court finds that the later statements must be suppressed as well (see People v Rifkin, 289 AD2d 262, lv to app den 97 NY2d 759; People v Evans, 294 AD2d 918, 1v to app dism 98 NY2d 768).

Addressing the legal propriety of the two pre-trial identification procedures participated in by Raganauth (June 23, 2008 photo array and the June 25, 2008 lineup), the Court is guided by the established legal maxim that "the test for suppression of identification testimony is whether it has been tainted by a procedure so unnecessarily suggestive as to create a substantial likelihood of misidentification" (see People v Gee, 286 AD2d 62, aff'd 99 NY2d 158; quoting People v Moore, 264 Ad2d 693, 694, 1v denied 94 NY2d 826; see People v Adams, 53 NY2d 241, 251; People v Rahming, 26 NY2d 411, 416).

Having viewed the photo array and a photograph of the lineup, the Court finds that the fillers used in both procedures were close in age and had similar skin tones and facial characteristics; and , as noted above, the defendant and the fillers in the lineup were all wearing black baseball-style caps and white t-shirts. Moreover, there was nothing suggestive in the manner in which both of these procedures were conducted so as to unduly draw the attention of the viewer toward the defendant. "Contrary to the defendant's assertion, neither the photo array nor the lineup that Raganauth viewed was unduly suggestive (see People v Maffei, 12 AD3d 394, 1v to app denied 4 NY3d 833).

Therefore, that branch of the motion seeking to suppress the potential identification testimony of Raganauth at trial is denied.

B.The Defendant Mohabir

The Court finds that "the People met their burden of going forward to show the legality of the police conduct in the first instance" (see People v Drumm, 15 AD3d 910, lv to app denied 4 NY3d 853; People v DiStefano, 38 NY2d 640), with respect to the questioning of the defendant Mohabir. The defendant was treated as a "victim" and not as a suspect, until such time as the two detectives' suspicions were raised by the inconsistencies in the differing versions of events offered by Mohabir and Raganauth.

During the initial phase of dual questioning, there was no requirement that the defendant be afforded Miranda warnings, since he was not in custody. "In deciding whether a defendant was in custody prior to receiving his [Miranda] warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position" (People v Andrews, 13 AD3d 1143; quoting People v Yuki, 25 NY2d 585, 589, rearg denied 26 NY2d 845, cert denied 400 U.S. 851).

When Detective Feehan determined that he wanted to question Mohabir separately from Raganauth, the defendant was escorted, without force, into a different room, and was immediately given his Miranda rights which he waived. The Court finds that the defendant was fully apprised of his Miranda rights and readily understood and waived those rights (see People v Doherty, 305 AD2d 867, lv to app denied 100 NY2d 580) prior to the second phase of questioning. Consequently, the Court finds the defendant's waiver of his rights to have been knowing, intelligent and voluntary.

Having found that the People initially demonstrated the legality of the police conduct and [*8]the defendant's waiver, the burden of persuasion on the motion to suppress his statements rested with the defendant (People v Drumm, supra , at 911). The defendant has not satisfied this burden and his motion to suppress his oral and written statements must be denied.

C.Conclusion

The Defendant Molina - The defendant's motion to suppress is

granted to the extent that all of the oral and written statements he allegedly made to the police, together with the gun recovered by the police are suppressed; it is denied with respect to the potential identification testimony of Mr. Raganauth.

The Defendant Mohabir - The defendant's motion to suppress his oral and written statements is denied.

D.People's Application To Re-Open the Hearing

In their post-hearing memorandum of law, dated February 23, 2010, the People contend that counsel for the defendant "misapprehended the factual sequence of events that the detective described at the hearing." The People then state that they "consent to the reopening of the hearing so that the witness can clarify what was made by those responses." It is unclear how the People are "consenting" to a procedural device that was never moved for by the defendant. In fact, in the defendant's response to the People's memorandum, the defendant vigorously opposes that suggestion.

In People v Havelka, 45 NY2d 636, the Court of Appeals stated the rule to be applied in determining whether to reopening a hearing:

"Generally, where no contention is made that the People had not had [a] full opportunity to present evidence ... [t]here [is] no justification ... to afford the People a second chance to succeed where once they had tried and failed" (People v Havelka, supra , 643, quoting People v Bryant, 37 NY 208, 211; see also People v Robinson, 100 AD2d 945).

The People do not contend that they did not have a full opportunity to present evidence at the hearing, nor do they argue that the Court made a ruling which precluded such opportunity. Therefore, the People's application is denied.

The foregoing constitutes the Opinion and Decision of the Court.

Order signed herewith.

The Clerk is directed to forward copies of this Decision and the accompanying Order to the attorney for the defendant and to the District Attorney.

_____________________________

Robert Charles Kohm, J.S.C.