Motion denied.

The officer had an articulated credible, objective reason for stopping the defendant under a DeBour level one stop. The defendant was positively identified by the complainant. Therefore, the officer had probable cause to make the arrest. Miranda warnings were not required because when the statement was made defendant was not being interrogated.

On September 19, 2010, defendant, Darnell Hardware, was arraigned and charged with [*2]

PL 130.52Forcible Touching

PL 130.55Sexual Abuse In The Third Degree

PL 240.26 [1]Harassment In The Second Degree

PL 220.03Criminal Possession Of A Controlled Substance In The Seventh Degree

On June 21, July 8, and September 20, 2011, the court held a Huntley/Dunaway suppression hearing to determine whether there was probable cause to arrest the defendant and whether statements made by the defendant should be suppressed pursuant to People v Huntley, 15 NY2d 72, 555 N.Y.S.2d 838, 204 N.E.2d 179 [1965]) and Dunaway v New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 [1979]).

On September 18, 2010, the officer testified that he was working the midnight to 7:50 a.m., tour in uniform with his partner, Lieutenant Palmentry ^[FN1]. He testified that they were in a marked van, of which, he was the operator. The officer testified that he received a radio call at approximately 6:40 a.m., regarding an incident at the Franklin Avenue, IRT, 2 and 3 train station in Kings County. He further testified that the caller gave him a description of the alleged suspected person involved in the incident. The officer testified that the caller described the suspected person as a Black male wearing a gray sweatshirt, jeans, and roughly in his twenties.

The officer also testified that when he arrived at the train station the complainant told him what had happened. He testified that she stated the suspect was on the train, he started a conversation with her, and in the midst of talking to he her, he began mentioning stuff about his penis. The officer testified that the complainant told him that she got off the train at Franklin Avenue and the suspect also got off. The officer then testified that the complainant stated that before the suspect left the station, he grabbed her buttocks and fled. (Testimony of Officer Edwards, June 21, 2011, at 21:1-19).

After speaking with the complainant, the officer testified that he began canvassing the area to look for the suspect. The complainant, the officer testified, was in another vehicle with Officers Torres and Bacon, who also responded to the radio call. Within approximately five minutes, the officer testified that he observed an individual, whom he believed fitted the [*3]description of the suspect walking from the direction of the Franklin Avenue subway station. At the time of this observation, the officer testified that the individual was alone, and he saw no one else around him. The officer further testified that when he stopped the individual they were approximately four or five blocks from the subway station. When the defendant was stopped, the officer testified that the complainant who was in the other car with Officers Torres and Bacon made a positive identification of the defendant. The defendant, the officer testified, was then placed under arrest. However, before the defendant was arrested, Officer Edwards testified that Officers Torres and Bacon had gotten out their car and told him that the complainant had just made the positive identification of the suspect.

Following defendant's arrest, Officer Edwards testified that he placed him in the patrol vehicle to be transported to the precinct. The officer further testified that when he informed the defendant of why he was being arrested, defendant said nothing. Officer Edwards testified that because he had no conversation with the suspect nor asked him any questions, there was no reason to Mirandize him while they were in the patrol car

Officer Edwards testified that while the suspect was in the back of the van he noticed signs of intoxication such as the smell of alcohol on the breath and it was the suspect's birthday. For safety reasons, the officer testified he frisked, searched and handcuffed the suspect before placing him in the van, at which time no weapons or contraband were found. The officer further testified that he could not recall if he recovered anything from the suspect to indicate that the suspect had been on the subway.

The officer also testified that as defendant was being transported in the back seat to the station, he began to mumble and talk to himself. At some point, the officer testified that he heard the suspect say, "I fucked up, I shouldn't have grabbed her ass." (Testimony of Officer Edwards, June 21, 2011, at 16:19-20). The officer concluded his testimony when he testified that he said nothing to the suspect in response his statement.

The officer then testified that when the suspect was searched again at the station house, crack cocaine was recovered from the defendant's left sock (Transcript, July 8, 2011 at 5:13-19), and to his recollection, the vehicle had been searched for contraband before it was taken out of the station.

On September 18, 2010, the officer testified that he was working the 11:15 p.m. to 7:50 a.m., tour in uniform with his partner, Officer Bacon. He testified that they were in a marked van, of which he was the operator, when he received a radio call at approximately 6:30 a.m., regarding an assault of a female at the Franklin Avenue, IRT, 2 and 3 train station in Kings County. He further testified that from the radio transmission he received a description of the alleged person involved in the incident. The officer testified that the person was described as a Black male wearing a gray sweatshirt and jeans. [*4]

The officer testified that when he arrived at the train station, he went downstairs to the booth area where a female who was crying approached him and said a male grabbed her by her "ass"and took off running. (Testimony of Officer Torres, July 8, 2011, at 12:24-25 to 13:1-2). The officer testified that the complainant said the following to him at the station: (1) the suspect wore a gray sweater hoodie, blue jeans, and a baseball cap, (2) the incident occurred approximately two to three minutes before the officer arrived, and (3) the suspect left the station and ran towards Franklin Avenue. The complainant was placed in the back of the vehicle and then they canvassed the area. The officer testified that all the windows in the vehicle were rolled up, the windows were untinted, it was a clear day, the sun was just coming up, and he saw approximately two to three people on the street.

As the officers and complainant were canvassing the area, the officer testified that within approximately seven to ten minutes, the complainant, who was looking to her left, said to him, "there he is standing to my left." After receiving this information, the officer testified that he stopped the vehicle and got out and spoke to Officer Edwards, who had just pulled up, informing the officer that the complainant just made a positive identification.

At a suppression hearing, the People have the initial burden of presenting evidence of probable, or reasonable cause to show the legality of police conduct (see People Baldwin, 25 NY2d 66 [1969]; People v Malinsky, 15 NY2d 86 [1965]; People v Wise, 46 NY2d 321 [1978]; People Dodt, 61 NY2d 408 [1984]; People v Moses, 32 AD3d 866 [2nd Dept. 2006] lv. den. 7 NY3d 297 [2006]). Once the People have met this burden, it is the defendant that bears the burden of proving the illegality of police conduct (People v Berrios, 27 NY2d 361 [1971]; People v DiStefano, 38 NY2d 640 [1976]; People v Lombardi, 18 AD2d 177 [2nd Dept. 1963]).

The officer may stop an individual who bears a resemblance to a suspect being sought in connection with a crime (see People v Smith, 220 AD2d 219 [1995]; People v Reid, 173 AD2d 870 appeal denied 78 NY2d 972 [1990]). Here, the officer had a common-law right to inquire based on the defendant's resemblance to the suspect described in the radio call. Also, this defendant was identified by the complainant when Officer Edwards received a positive identification from the complainant through Officers Torres and Bacon. At that point, the intrusion escalated into probable cause to arrest the defendant. In view of the foregoing legal intrusions, defendant's motion to suppress the initial stop and his arrest as a violation of his fourth amendment right against unwarranted intrusion by the police is denied.

Defendant's argument that his statement should be suppressed because he was in custody and Miranda warnings were not given is without merits. The statement the defendant seeks to [*5]suppress was allegedly made as he was being transported to the station. Officer Edwards overheard the defendant mumbling and talking to himself in the back seat of the van. At no time did the officer have any conversation with the defendant while they were in the patrol van.

The fact that a defendant is in custody is not controlling on whether Miranda warnings should be given (see People v Huffman, 41 NY2d 29, 33 [1976]). 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]). Weighing these factors, although the defendant was in custody, he was not interrogated at the time he made the statement. Thus, the statement was voluntarily made. Because the statement was voluntarily made, Miranda warnings were not required. Accordingly, defendant's motion to suppress the statement he made while being transported to the station is denied.

Based on defendant's resemblance to a suspect, the officer had an articulated credible, objective reason for stopping the defendant under a DeBour level one stop. Once the defendant was positively identified by the complainant, the officer had probable cause to make the arrest. Since the defendant was not being interrogated while in custody, Miranda warnings were not required. Therefore, defendant's suppression motion is denied in its entirety.

The foregoing constitutes the decision and order of the court.

________________________________

Hon. Gerri Pickett

Judge of the Criminal Court

Dated:Brooklyn, New York

October 19, 2011