On February 4, 2010, the defendant, Alvin Cuffy, was arraigned and charged with:

PL 260.10 [1]Endangering The Welfare Of A Child

PL 265.01 [1]Criminal Possession Of A Weapon In The Fourth Degree

At the hearing, the People called one witness: Police Officer, Stanislav Feldshteyn, New York City Police Department, Shield No.15593, 71st Precinct, Brooklyn, New York. No witnesses were called by the defendant.

Officer Feldshteyn testified that at approximately 6:30 p.m., he received a radio call that a 911 child caller said his father had guns in the house at 169 Crown Street, Brooklyn, New York. The officer testified that within a few minutes he arrived at the location. Upon knocking on the door, the officer testified that he was greeted by a male child who appeared to be approximately ten-years old. The officer testified that the child whom he later learned was named Gavon Jack ^[FN1], told him that he lived at the location and opened the door to enable the officer to enter into the premises. The officer testified that when he asked the child if he had seen any guns in the house, the child answered yes. The officer testified that he asked the child if he knew where they were, and the child responded in the living room or in the kitchen.

The officer testified that Gavon, without any direction from him, went into the livingroom and kitchen to look for the guns. The officer testified that within thirty to forty-five seconds of looking, Gavon did not find anything. The officer further testified that when Gavon told him his father was in an upstairs bedroom, he went upstairs. The officer also testified that within minutes of entering the home back up officers had arrived, and to his independent recollection two or three of the back up officers went upstairs with him. He also testified that no one had their guns drawn.

After arriving upstairs, the officer testified that he knocked on a closed ^[FN2] bedroom door and the father, whom the officer identified in court as the defendant, opened the door. At that point, the officer testified that as he was standing in the doorway he asked the defendant if he had any guns in the house. The officer testified the defendant answered yes and pointed to a shelf with a couple of towels on it. The officer testified that when he went to the shelf he found a firearm under the towel. The officer further testified that at no time were any weapons drawn, threats made, or promises given in exchange for defendant's statements.

The officer further testified that when he asked the defendant if the gun belonged to him, the defendant answered yes. The officer further testified that defendant also stated the gun was [*3]given to him back in the 90's by a person named Candie who is now deceased. The officer testified that defendant stated the gun was for his protection because he had been robbed in the past. The officer testified that when he asked the defendant if there were other guns in the home, the defendant said his cousin had been there and left one gun.

The officer further testified that after the defendant told him that the gun belonged to him, he then placed him under arrest. When the officer was asked if anything was recovered with the gun, he testified that he recovered a firearm with a magazine and holster. The officer testified he personally vouchered all of the recovered items under three different vouchers. After the defendant was arrested, the officer testified that he was taken to the 71st Precinct where he was given Miranda warnings.

"[I]t need merely appear more probable than not that a crime has taken place and that the one arrested is the perpetrator". (People v Hill, 146 AD2d 823, 824 [1989]). Pursuant to People v Bothwell (261 AD2d 232 [1999]), "the emphasis should not be narrowly focused on . . . any . . . single factor, but on an evaluation of the totality of circumstances, which takes into account the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents' " (see Bothwell at 232).

Turning to the facts in this case, the officer had reasonable cause to believe that a gun was in the premises after receiving a radio run. After arriving at 169 Crown Street where the alleged 911 caller lived, the caller granted access into the premises. Upon entering the premises, the 911 caller, after looking for and not finding any guns, told the officer that his father, who he claimed possessed the guns, was in a second floor bedroom. When the officer encountered the defendant, he asked him if there were any guns in the house. When the defendant answered yes and showed the officer where the firearm was located, it was reasonable for the officer to ask the defendant if the gun belonged to him and when he said, yes, to arrest him.

The officer was invited to the home by a resident of the home. After being in the home, he had probable cause to make the arrest when the defendant admitted that he owned the gun. Based on the above, defendant's motion to suppress his arrest on the ground the officers lacked [*4]probable cause is denied.

Defendant's argument that his statements should be suppressed because he was in custody when they were made and should have been given Miranda warnings is without merits. The statement the defendant seeks to suppress was allegedly made in the upstairs bedroom. The officer testified that after encountering the defendant in an upstairs bedroom he stated that a person named Candie had given him the gun. He told the officer where the gun was located, that it belonged to him and that his cousin also left a gun in the house.

Miranda protections are not triggered unless a suspect is subject to "custodial interrogation" (see Miranda v Arizona, 384 U.S. 436, 444 [1966]; see also People v Berg, 92 NY2d 701, 705 [1999]). Since the officer's sole purpose for being at the premise was pursuant to a 911 call that the caller's father possessed guns, it was reasonable for the officer to ask the defendant if there were any guns in the house, and if so, where they were located and if they belonged to him. The officer further testified that at no time were any guns drawn, threats made, or promises exchanged for defendant's statement. Weighing these factors, the court finds that the defendant was not in custody when the statements were made. The statement was made as a result of an investigation, and therefore, Miranda warnings were not required. Accordingly, defendant's motion to suppress the statements made at the scene is denied.

A Mapp hearing involves the question of the legality of the defendant's arrest. If the arrest was made without probable cause, then any evidence obtained as a result of the arrest is inadmissible at trial (see Mapp v Ohio, 367 U.S. 643 [1961]; see also People v Thomas, 164 Misc 2d 721 [N.Y.C. Civ. Ct. 1995]). Defendant's arrest was lawful and the physical evidence seized from the residence was legally obtained. Accordingly, defendant's motion to suppress the physical evidence obtained as a result of his arrest is denied.

The officer lawfully entered the premises based on a 911 call that a gun was in the house. Pursuant to an investigative inquiry, the officer had probable cause to arrest the defendant when the defendant stated that there was a gun in the house, showed the officer where the gun was to be found, and admitted he owned the gun. When the defendant was questioned he was not in custody, therefore, Miranda warnings were not required, and any physical evidence obtained was the result of a lawful arrest and is therefore not suppressible.

The foregoing constitutes the decision and order of the court. [*5]

________________________________Gerri PickettJudge of the Criminal Court

Dated: Brooklyn, New YorkOctober 24, 2011