Defendant is charged with the murder of his former girlfriend Catherine D'Onofrio and the attempted murder of her friend Melissa Simmons on March 8, 2009 at Ms. Simmons' apartment.

Soon after the shootings, the defendant became the prime suspect. Substantial police resources were mobilized in the search for the defendant. As part of the investigation, Sergeant Ildian Laureano of the internal affairs bureau called Mr. Edward Mandery, who was representing [*2]the defendant on a different case involving allegations of police corruption. Sergeant Laureano asked the attorney for Mr. Bowens' cell phone number to try and contact him. Before turning over the information, Mr. Mandery contacted an attorney ethics specialist as well as a trusted colleague to confer about the propriety of giving the police the number. After several telephone conversations he did turn over the number.

In the interim, Detective Thomas Pisano, Sergeant Jouana Fernandez, Police Officer Michael Rubino and Detective John Sweeney all received telephone calls in the early morning hours of March 9th from a person identifying himself as Jerry Bowens, and making statements about the shootings and his surrendering.

Earlier on March 8, 2009, Detective Michael Greenwood went to see Ms. Simmons in Bellevue Hospital to show her a photo array containing the defendant's photo, whom she identified as the culprit.

Before Sergeant Laureano could contact the defendant, Lieutenant Kevin Paynter, also of internal affairs was in Staten Island canvassing for the defendant's car. He saw a car fitting the description of Ms. D'Onofrio's car speeding with no lights on and passing red lights. He followed the car and identified the license plate as Ms. D'Onofrio's. The car stopped at the 120th precinct and the defendant was taken into custody by officers of the emergency services unit. Lieutenant Paynter went up to the defendant and asked about the gun. The defendant indicated it was in the center console of the car and the lieutenant recovered it.

The defendant was brought into the 120th precinct and brought to Sergeant Peter Guido, the desk sergeant for processing. The sergeant saw the defendant turn to an emergency service officer and tell him "you should have shot me; I was going to shoot you guys."

The defendant was taken to the 94th precinct. He was given his Miranda warnings by Detective Sidney Strobert and thereafter made oral and written statements to both Detective Strobert and Detective Stilianos Panagopoulos.

On October 9, 2009, a line-up was conducted and Ms. Simmons again identified the defendant as the person who shot her and Ms. D'Onofrio.

At the time of his arrest, the defendant had made several telephone calls to the police linking himself to the shootings and indicating he would surrender. The police were waiting for him in force as a result of this and had reasonable cause to arrest him.

Wade

Defendant seeks suppression of identification testimony as being tainted or unduly suggestive. With respect to the photo array, the six individuals depicted were all police officers wearing navy shirts and ties against a green background. All have similar hairstyles, complexions and appear similar in age. Nothing in the array creates a likelihood that the defendant would be singled out for identification (People v Caban, 181 AD2d 787; People v Robert, 184 AD2d 597).

Similarly, the line-up conducted on October 9, 2009, was comprised of men similarly dressed, all wearing dark baseball caps and of close age, height, weight and complexion. Importantly, the line-up was double-blind and took place with counsel present.

Since there was nothing unduly suggestive about the line-up, and it constituted a fairly representative panel upon which a witness could make an identification, it was proper (People v [*3]Baity, 178 AD2d 190; People v Bishop, 167 AD2d 551).

Mapp

(1)Telephone calls

A man identifying himself as Jerry Bowens made four separate telephone calls to four separate commands in the early morning of March 9, 2009. The caller told Detective Pisano of the 90th precinct that he shot the girls and was in a motel in New Jersey. He told Sergeant Fernandez of PSA1 that he wanted to surrender in Staten Island. He also stated to Officer Rubino at the 120th precinct that he had a gun and an AK47 and told Detective Sweeney of the public information office that he wanted press coverage when he surrendered.

These were all spontaneous, unsolicited statements, made before the defendant was in custody. The defendant seeks to suppress them because none of the recipients could identify Mr. Bowens' voice.

Although the most common method of caller identification is voice identification, it is not the only method (People v Lynes, 49 NY2d 286). In this case, there are a good many alternative indices of reliability so that there is no doubt that it was the defendant on the phone and not an imposter. Significantly, the self-identification of the caller, coupled with the context and timing of the series of calls during the manhunt, the content of his statements concerning facts that would only be known to the defendant and the post-call verification of the statements, such as the place of surrender and weapons in his possession, all confirm the identity of Mr. Bowens as the caller. The statements, are, therefore, admissible at trial.

(2)Statement to Lieutenant Paynter

After his arrest in Staten Island, Lieutenant Paynter asked the defendant about the gun and defendant told him it was in the car's center console, where, in fact, it was recovered. This statement is admissible under the public safety exception to the Miranda rule since the gun could have been in the defendant's possession or another place where it could do harm (New York v Quarles, 467 US 649; People v Reed, 78 AD3d 1481; People v Allah, 54 AD3d 632).

(3)Statement in the 120th Precinct

The statement overheard by Sergeant Guido to the emergency service officer was spontaneous, not the result of police questioning, and is admissible.

(4)Statements to Detectives Strobert and Panagopoulos

There is no question that while at the 94th precinct, the defendant was read his Miranda rights and waived them. Nevertheless, if the police knew that the defendant was represented by counsel on the charges for which he was presently in custody, that waiver, in the absence of counsel is ineffective (People v Wilson, 219 AD2d 164).

Although Edward Mandery was still representing the defendant on an unrelated case, this alone does not prevent the police from questioning the defendant on new charges (People v Bing, 76 NY2d 331). Thus, the admissibility of the statements to Detectives Strobert and Panagopoulos turns on whether the attorney told Sergeant Laureano "please make sure, you know, when Jerry's apprehended that you don't speak to him without me being present." That "I mean I am invoking his right to counsel," as testified to at the hearing.

Sergeant Laureano has no recollection of such statements being made by Mr. Mandery. The two knew each other as a result of the defendant's cooperation with internal affairs during the past year, and they had at least three separate telephone conversations on March 9, 2009. In [*4]context, it seems, both of them were fearful of the defendant and both were stunned at the violent turn of events. Under these circumstances, it is completely understandable that portions of the conversations, made during a multi-state search for a man they believed to be heavily armed and extremely dangerous, may have been forgotten, repressed or not comprehended. Thus, the court believes that, although their testimony conflicts, both men are testifying truthfully. Nevertheless, the attorney had the presence of mind to consult with his ethics professor and a colleague to get advice on how to proceed. He also later called the Brooklyn assistant district attorney assigned to the defendant's other case to inquire as to the arraignment on the murder charge. It was only then that he was told he was on a hit list in the defendant's possession which would preclude continuing representation.

All of these facts give credence to Mr. Mandery's testimony, after consulting with another lawyer, that, although shocked, he wanted, in speaking to Sergeant Laureano, "to protect him legally as well as to make sure when he was apprehended, he is not questioned unless I am present, counsel's present," and that he "absolutely" told Sergeant Laureano this.

That being the case, the right to counsel indelibly attached to the defendant and police questioning should not have taken place in the absence of counsel. The statements made to Detectives Strobert and Panagopoulos are not, therefore, admissible at trial (People v Grice, 100 NY2d 318; People v West, 81 NY2d 370; People v Gunner, 15 NY2d 226).

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.