A combined Dunaway / Wade / Huntley hearing was conducted before this court on February 27, 2014, February 28, 2014 and March 17, 2014.

Having had the opportunity to hear the testimony of the witnesses, observe their demeanor and assess their veracity, the court now makes the following findings of fact, based upon the material, relevant and credible evidence adduced:

On February 27, 2014, the People called Detective Niurca Maria Quiñones as a witness.^[FN1] Detective Quiñones has been a New York City Police Officer for 23 years. She is currently a member of the Brooklyn Special Victims Squad, where she has been assigned for three years.

On November 29, 2012, Detective Quiñones was assigned to investigate the assault of a female in Brooklyn. Detective Quiñones responded to Kings County Hospital to interview the complaining witness, L. G.^[FN2] L.G. advised that, on November 29, 2012, she entered the elevator of the building in which she lives, on the 18th floor, intending to retrieve her mail from the lobby. Although she pressed the button for the first floor, instead of going down, the elevator went up. When the elevator reached the 20th floor, a male black stepped in and pressed the button for the 11th floor. Upon arrival at the 11th floor, the male stepped out of the elevator, after which the [*2]doors malfunctioned, unable to close or open completely. While the elevator doors continued to malfunction, the male stepped back in and punched L.G. multiple times, while yelling "I want that pussy." L.G. began to scream while the male continued to punch her and tore her sweat pants from her body. As L.G. continued to scream, the male fled the elevator, which had not left the 11th floor. Once the male left the elevator, the doors closed and it descended to the lobby where a number of individuals found L.G. and called 911.

L.G. described the male from the elevator as black; late 20's to middle 30's; medium complexion; approximately 5 feet 9 inches tall; stocky build; wearing a red, white and blue sweater and blue jeans; and holding a DVD and a beer bottle. She surmised that he may have been from the neighborhood or the building, since he was not wearing a coat.

According to Detective Quiñones, on December 1, 2012 she met L.G. at her apartment to show her a photographic array. Detective Quiñones explained that she created a "set book" containing approximately 40 photographs.^[FN3] Detective Quiñones stated that she received the photographs that make up Set Book #1 from other detectives, who simply left them on her desk at different times. Detective Quiñones could not specify the precise sources of the photographs, but assumed that they were the results of computer searches. Although she had no first-hand knowledge of the criteria used to generate the photographs she received, Detective Quiñones was told that they included male blacks from the precincts surrounding L.G.'s building. When prompted by the People, Detective Quiñones agreed that the criteria were "more or less" based upon L.G.'s description of the perpetrator. Of the photographs she received from her colleagues, Detective Quiñones chose those that depicted physical characteristics similar to the description given by L.G.

On December 1, 2012, L.G.'s injuries were fresh, but she was able to look at Set Book #1. Detective Quiñones held the set book and turned the pages, each of which contained one photograph. Detective Quiñones advised L.G. to let her know if she recognized anyone. On this date, L.G. picked a photograph from Set Book #1. The photograph was of a man named Terry Samuels. Since Mr. Samuels' photograph was the first one in the set book, Detective Quiñones advised L.G. to keep looking at the remaining photographs. L.G. did not pick out any other photographs from this set book. Both L.G. and Detective Quiñones signed and dated the photograph of Terry Samuels.

Detective Quiñones did not take any notes regarding the photographic array shown to L.G. on December 1, 2012. Although she prepared approximately 13 DD5's about the investigative steps she took on that date, she did not prepare one regarding the photographic array. Additionally, Detective Quiñones was unsure if the first time she advised anyone of the December 1, 2012 photographic array was approximately 1½ months before the hearing.

Upon investigation, Detective Quiñones determined that Terry Samuels had been involved in a near-drowning incident approximately two years earlier. He lives in a rehabilitation facility, where he is unable to speak or walk. Based upon his condition, Detective Quiñones concluded that Mr. Samuels could not have committed the offense against L.G. Detective Quiñones could not recall if her investigation revealed that Terry Samuels' last known [*3]address was the same building in which L.G. resides. Detective Quiñones did not prepare a DD5 about her investigation into Terry Samuels.

According to Detective Quiñones, on December 11, 2012, she met L.G. at her apartment to show her a second set book. She explained that she created the second set book of approximately 40 photographs.^[FN4] Detective Quiñones' testimony was that Set Book #2 was compiled in much the same manner as Set Book #1. None of the photographs that appeared in Set Book #1 were in Set Book #2. She did not tell L.G. that the person she previously identified on December 1, 2012 (Terry Samuels) was incapacitated and could not have assaulted her.

On December 11, 2012, Detective Quiñones showed L.G. Set Book #2. Detective Quiñones turned the pages of the set book and advised L.G. to let her know if she recognized anyone. On this date, L.G. picked out a photograph of Michael Gattison. According to Detective Quiñones, L.G. was "adamant" that the photograph she picked was of the person who assaulted her. Detective Quiñones testified that Mr. Gattison's photograph did not appear in Set Book #1. L.G. signed the photograph of Michael Gattison, but did not date it. Detective Quiñones did not sign or date it.

Although she prepared approximately seven DD5's about the investigative steps she took on December 11, 2012, once again Detective Quiñones did not prepare one regarding the photographic array shown to L.G. Neither did Detective Quiñones refer to this photographic array in her Grand Jury testimony. In fact, the first time Detective Quiñones told anyone about the December 11, 2012 photographic array was immediately preceding her hearing testimony.

After L.G. identified Michael Gattison on December 11, 2012, Detective Quiñones determined that he resides in the same building as L.G. Detective Quiñones did not take any action to apprehend Michael Gattison following that photographic array, stating that she wanted to perform more investigation and gather more information before placing him in a lineup.

On January 10, 2013, Detective Quiñones removed the photograph of Michael Gattison that L.G. picked out of Set Book #2 on December 11, 2012. She explained that nothing else was coming in to the investigation and that she wanted to make sure she had the right person. Detective Quiñones substituted a photograph of a younger Michael Gattison in a different position in Set Book #2. She did not know where the new photograph of Mr. Gattison came from, except that she found it on her desk in the same manner as with the compilations of the previous set books. None of the remaining photographs in Set Book #2 were changed and they remained in the same order. Detective Quiñones then went to L.G.'s apartment to show her the revised Set Book #2. On this occasion, L.G. turned the pages of the set book herself, and picked out the photograph of Michael Gattison.

Detective Quiñones did not prepare a contemporaneous DD5 about the January 10, 2013 photographic array. In fact, Detective Quiñones did not prepare any DD5's at all regarding this investigation during January 2013. A DD5 about the January 10, 2013 photographic array was [*4]not prepared until January 9, 2014, some 11 months after Michael Gattison's arrest and 1½ months before the hearing.

On February 5, 2013, Detective Quiñones, along with other police officers, apprehended Michael Gattison at his place of residence. He was placed in handcuffs as he stepped out of his apartment at the request of Detective Quiñones, but not immediately told that he was under arrest. Detective Quiñones identified Mr. Gattison, in court, as the person she apprehended on February 5, 2013. Although she had obtained his address in December 2012, Detective Quiñones waited approximately 3½ weeks from the January 10, 2013 photographic array to apprehend defendant, explaining that she was hoping for additional information to come in by means of tips, witnesses, videos or canvasses.

Defendant was transported to the Brooklyn Special Victims Squad and placed in an interview room on the second floor. The interview room is small, with a gated window, a long table, two chairs and a long bench. Detective Quiñones entered the room without a gun. Defendant was not handcuffed. Detective Quiñones read defendant Miranda warnings from a printed script;^[FN5] defendant initialed to confirm his understanding of each warning and signed and dated the form.

After receiving Miranda warnings, defendant agreed to speak to Detective Quiñones. The interview was conducted in two parts, the first on February 5, 2013 and the second on February 6, 2013.^[FN6] At no time during either part of the interview did defendant refuse to answer questions. The first part of the interview was ended as the hour was late and everyone was tired. It was understood that the interview would be continued the following morning. Detective Quiñones did not know whether defendant was housed overnight at the Brooklyn Special Victims Squad or brought to a precinct; she assumed, but under questioning from the court, admitted that she did not know, if defendant had been offered food and a place to sleep.

Although they were not repeated in their entirety, defendant was reminded of the previously administered Miranda warnings before part two of the interview commenced. On February 6, 2013, defendant continued his oral statement and made a written statement, which he signed and dated.^[FN7]On February 6, 2013, Detective Quiñones conducted a lineup. She was assisted by other detectives, who obtained the five fillers also placed in the lineup. Defendant was allowed to choose his number in the lineup; he chose position #4. All of the lineup participants were male blacks, whom Detective Quiñones described as having similar physical [*5]characteristics to defendant. Detective Quiñones explained that all six wore hats in order to allow the viewer to concentrate on their faces. Before the lineup, when asked if he was satisfied with its composition, defendant indicated that he was.

Detective Quiñones administered the lineup, advising L.G. that she would view six men holding numbers. She also advised L.G. that she would view the lineup through a two-way mirror and that she would not be visible to the individuals in the lineup. Finally, Detective Quiñones instructed L.G. to look at the faces in the lineup. Defendant was held in a closed office in the Brooklyn Special Victims Squad and kept separate from L.G., who did not have contact with him before the lineup.^[FN8] Upon viewing the lineup, L.G. identified position #4 (defendant) as the person who assaulted her on November 29, 2012.

Detective Quiñones prepared a lineup report, listing descriptions of the individuals in each position and including a photographic record.^[FN9] L.G. signed the lineup report, indicating that she selected position #4.

On March 17, 2014, the People called the complaining witness, L.G.^[FN10] L.G. recalled meeting with Detective Quiñones to view photographic arrays on several occasions between November 2012 and February 2013. She often could not remember specific dates, but recalled viewing photographs in books on at least three occasions at her apartment: December 1, 2012, December 11, 2012 and January 10, 2013. She also recalled viewing loose photographs on more than one occasion. On several occasions during her testimony, L.G. stated that she had trouble with her memory.

With some prompting, L.G. recalled viewing a photographic array on December 1, 2012. She recalled that she identified the man who injured her face from the photographs. When shown the photograph she picked out on December 1, 2012, L.G. confirmed that it showed the man who injured her face.^[FN11] She confirmed that her signature appeared on the photograph and stated that it was the only photograph that she signed. L.G. was also shown the the signature on one of the photographs of defendant that, according to Detective Quiñones, L.G. picked out of Set Book #2, without being shown the photograph itself. L.G. confirmed that it was her signature, but repeated that she only signed one photograph.

L.G. also recalled viewing a lineup at the Brooklyn Special Victims Squad, where she [*6]

identified the man who injured her face.

Probable Cause

The applicable legal principles are well established and beyond dispute:

In order to sustain a finding that the police had probable cause to arrest, the evidence must show that they were possessed of information which would lead a reasonable person to conclude that it is more probable than not' that a crime has been committed and that the person being arrested is the person who committed it [citation omitted]. A lawful arrest does not require proof to a mathematical certainty, or beyond a reasonable doubt' [citation omitted].

In this regard:

[T]he subjective beliefs of the arresting officers are not controlling on the issue of whether probable cause exists for an arrest [citation omitted]. Rather, it is for the court to make this determination upon a review of all relevant objective information known to the officer at the time of arrest (see People v. Bandera, 204 AD2d 340, 341 [2d Dept 1994], lv denied 83 NY2d 1002 [1994] see also People v. Peters, 136 AD2d 750, 751 [2d Dept 1988], lv denied 72 NY2d 864 [1988]). Judicial evaluation of police action must be based on objective criteria and not an officer's subjective view of his right to make an arrest with due consideration given to the expertise of [the officers] (People v. Lynch, 178 AD2d 779, 781 [3d Dept 1991], lv denied 79 NY2d 949 [1992]).

Simply stated, "the determination of probable cause deals not with technicalities but with probabilities ... under the totality of the circumstances presented'[citation omitted]" (People v. Davis, 192 AD2d 360, 361 [1st Dept 1993], lv denied 81 NY2d 1071[1993]). The information known to a police officer may include "what he ... has seen, learned and heard as a trained officer [citation and internal quotation marks omitted]" (People v. Virola, 300 AD2d 822, 823 [3d Dept 2002], lv denied 99 NY2d 633 [2003]). Courts are instructed to consider all the facts and circumstances together; "[v]iewed singly, the[y] may not be persuasive, yet when viewed together the puzzle may fit and probable cause found [citation and internal quotation marks omitted]" People v. Quarles, 187 AD2d 200, 203 [4th Dept 1993], lv denied 81 NY2d 1018 [1993] see e.g. People v. Letendre, 264 AD2d 943 [3d Dept 1999], aff'd 94 NY2d 939 [2000] People v. Curry, 294 AD2d 608, 611 [3d Dept 2002], lv denied 98 NY2d 674 [2002] [considered in the aggregate, the facts convincingly established probable cause for the defendant's warrantless arrest]).

The People need not present proof beyond a reasonable doubt, or even establish a prima facie case; "what must be shown is that it was more probable than not' that an offense has occurred and that defendant was the perpetrator" (People v. Horsman, 152 AD2d 859, 860 [3d Dept 1989]).

In the case at bar, the court heard and evaluated the testimony of the detective and the [*7]complaining witness who testified. Taking into account the totality of the circumstances of the investigation and the arrest, the court finds, based upon the objective information known to the police at the time of arrest, that there was probable cause to arrest defendant.

Accordingly, defendant's motion to suppress, based upon lack of probable cause to arrest, is denied.

Wade

It is firmly established in our jurisprudence that unduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused (People v Chipp, 75 NY2d 327, 335 [1990][citations omitted]). While the People have the initial burden of going forward to establish the reasonableness of the police conduct and lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive. Where suggestiveness is shown, it is the People's burden to demonstrate the existence of an independent source by clear and convincing evidence. Absent some showing of impermissible suggestiveness, however, there is no burden upon the People, nor is there any need, to demonstrate that a source independent of the pretrial identification procedure exists for the witness' in-court identification (id. at 335 [citations omitted]).

The court notes a myriad of troubling issues regarding the photographic arrays.

1) The lack of documentation in the form of notes or DD5's. Although Detective Quiñones prepared multiple DD5's on December 1, 2012 and December 11, 2012, she failed to document anything about the photographic arrays from which L.G. made two separate identifications. Additionally, she prepared no documentation regarding her conclusion that the person L.G. had identified on December 1, 2012 could not have committed the crime. Furthermore, Detective Quiñones failed to inform the People of these two identifications in a timely fashion. She did not tell the People about the December 1, 2012 photographic array, or the results of her follow-up, until approximately 1½ months before the hearing. The December 11, 2012 photographic array was absent from her Grand Jury testimony and she did not mention it to the People at all until the morning of the hearing.

With respect to the January 10, 2013 photographic array, Detective Quiñones did not prepare a contemporaneous DD5. In fact, Detective Quiñones did not prepare any DD5's regarding this investigation in January of 2013. A DD5 about the January 10, 2013 photographic array was not prepared until January 9, 2014, one year after the identification and 1½ months before the hearing. Detective Quiñones' explanation for the delay in preparing the DD5 about the January 10, 2013 photographic array was that she noticed that she hadn't done it when she reviewed her file in preparation for court.

This lack of documentation, which seems to be particularly applicable to the photographic arrays, calls into question their timing and composition.

2) Detective Quiñones failed to adequately explain the extended delay in apprehending defendant, despite L.G.'s positive identification of him from Set Book #2 as early as December 11, 2012. Although Detective Quiñones followed up with defendant's parole officer in December 2012 and determined that he was a resident of L.G.'s building, she did not apprehend him for [*8]purposes of a lineup, or even speak to him regarding the incident. Her explanation was that she hoped that some form of additional evidence would present itself.

Following L.G.'s second identification of defendant, on January 10, 2013, Detective Quiñones again failed to immediately apprehend or even approach defendant. When asked why she waited approximately 3½ weeks, until February 5, 2013, to apprehend defendant, Detective Quiñones repeated that she was waiting for some form of additional evidence.

3) L.G. consistently testified that she signed only one of the photographs that she picked from the photographic arrays shown to her by Detective Quiñones. This contradicts Detective Quiñones' account, in which L.G. signed the photographs she picked out on December 1, 2012 and December 11, 2012. The court also notes that the photograph that L.G. picked out on December 1, 2012 (that of Terry Samuels) was signed and dated by both L.G. and Detective Quiñones, while the photograph she picked out on December 11, 2012 bears only L.G.'s signature and is undated.

4) Although Detective Quiñones testified that Set Books #1 and #2, entered into evidence as People's Exhibits #1 and #2, were preserved in the same condition as when they were shown to L.G., a review of Set Book #2, ostensibly shown to L.G. on December 11, 2012, reveals that several photographs contained therein were printed after that date. This indicates either that the composition of Set Book #2, as it was entered into evidence, is different from its composition on December 11, 2012, or that the identification procedure took place some time after that date.

5) L.G. recalled viewing loose photographs in addition to those compiled in the set books. However, Detective Quiñones made no mention of any such identification procedures in her testimony. It is unknown when L.G. may have viewed loose photographs, how many were viewed, how they were presented or whether defendant's photograph was among them.

6) Detective Quiñones had a limited role in compiling the set books she showed to L.G. According to her, the photographs appeared on her desk over the course of the investigation, the result of efforts by her colleagues. She was not able to definitively state what criteria were used to obtain the photographs.

These issues, on their own and in the aggregate, call into question the reliability of the photographic arrays. The lack of documentation by Detective Quiñones makes it impossible to determine if they took place at the times and in the manner that she claims. The court finds it inconceivable that a detective with 23 years experience in the New York City Police Department would fail to document an event as significant as a positive identification by a complaining witness. Yet, although Detective Quiñones prepared a multitude of DD5's in this case (many of which were drafted on the days of the respective identification procedures), she testified that she generated no such documentation regarding the results of any identifications made by L.G. In addition to the lack of documentation, Detective Quiñones' testimony revealed that she failed to inform the People of the identifications in a timely fashion.

Despite the issues it raises, the court does not find that the testimony given by Detective Quiñones to be incredible as a matter of law. Although her performance is lacking in many respects, the court does not find that her testimony was "manifestly untrue, physically impossible, contrary to experience, ... self-contradictory" (People v Carmona, 233 AD2d 142 [1st Dept 1996]), "patently tailored to nullify constitutional objections, or otherwise unworthy of belief " (People v Hobson, 111 AD3d 958 [2d Dept 2013]); (see also People v Glenn, 53 AD3d [*9]622 [2d Dept 2008], lv denied 11 NY3d 832 [2008] People v Jay R., 259 AD2d 436 [1st Dept 1999] People v Quinones, 61 AD2d 765 [1st Dept 1978] People v Baldwin, 41 Misc 3d 1217(A) [Sup Ct, Queens County 2013] and People v M.R., 26 Misc 3d 1213(A) [Sup Ct, Bronx County 2009]).

However, Detective Quiñones' testimony makes it impossible to determine how many times L.G. viewed defendant's photograph or when the viewing(s) might have taken place. The lack of documentation; the failure to adequately explain the delay in apprehending defendant; the discrepancies in the dates on the photographs in Set Book #2; and the unaccounted-for loose photographs that L.G. recalled viewing raise serious doubt with respect to the reliability of the photographic arrays in question and constrain this court to find that they were not adequately preserved to enable it to make a determination as to suggestiveness.

Where the People fail to preserve a photograph of a lineup or a photographic array, a presumption of suggestiveness is created. This presumption may be rebutted by the People with competent evidence at the Wade hearing (see People v Galetti, 239 AD2d 598 [2d Dept 1997], appeal denied 90 NY2d 1011 [1997] People v Brennan, 222 AD2d 445 [2d Dept 1995], appeal denied 88 NY2d 980 [1996] People v Simmons, 158 AD2d 950 [4th Dept 1990], appeal denied 76 NY2d 743 [1990] People v Wedgeworth, 156 AD2d 529 [2d Dept 1989], appeal denied 156 NY2d 872 [1990] People v Stokes, 139 AD2d 785 [2d Dept 1988], appeal denied 72 NY2d 867 [1988] People v Mason, 138 AD2d 411 [2d dept 1988], appeal denied 72 NY2d 863 [1988] People v Bratton, 133 AD2d 408 [2d Dept 1987], appeal denied 70 NY2d 798 [1987] People v Sanchez, 128 AD2d 816 [2d Dept 1987], appeal denied 70 NY2d 655 [1987] People v Scatliffe, 117 AD2d 827 [2d Dept 1986], appeal denied 67 NY2d 1056 [1986] People v Jerome, 111 AD2d 874 [2d Dept 1985], appeal denied 66 NY2d 764 [1985]).

The court finds that the failure to adequately preserve the photographic arrays in this case gives rise to a presumption of suggestiveness. The People failed to rebut this presumption by competent evidence at the Wade hearing. Therefore, defendant has met his burden of demonstrating that the photographic arrays were unduly suggestive and his motion to suppress them is granted.

Turning to the lineup itself, the court has reviewed the photographs entered into evidence as People's Exhibits #5A and #5B and finds that the participants appear to be sufficiently similar to defendant with respect to age, skin tone facial features and facial hair. Their respective heights were equalized by having them all sit during the procedure. Additionally, all the participants wore the same color and style hat to account for differences in hairlines (see People v. Kirby, 34 AD3d 695 [2006], lv denied 8 NY3d 598 [2007]; People v. Meatley, 162 AD2d 721 [1990], lv denied 76 NY2d 942 [1990]).

The court finds that the line-up was composed of a representative panel, which allowed the witness to make a reliable identification. Defendant's physical characteristics were sufficiently similar to those of the other participants, negating the likelihood that he would be singled out for identification by the police (see People v. Jackson, 98 NY2d 555 [2002] People v. Chipp, 75 NY2d 327 [1990] People v. Washington, 40 AD3d 1136 [2007], lv denied 9 NY3d 883 [2007] People v. Kirby, 34 AD3d 695 [2006], supra).

In the normal course, a lineup such as this one would clearly pass constitutional muster. [*10]However, having concluded that the photographic arrays were unduly suggestive, the court must determine whether those improper identification procedures tainted the subsequent lineup.

Where an unduly suggestive identification procedure is followed by a properly conducted identification procedure, trial testimony regarding the subsequent procedure may be permissible if the time period between the suggestive and non-suggestive procedures is sufficient to attenuate the taint of the suggestive procedure (see People v. Racine, 28 Misc 3d 1223 (A) [Sup Ct, Kings County 2010]).

In the case at bar, the court is unable to conclude that the time period between L.G.'s viewing of the photographic arrays and her viewing of the lineup was sufficient to attenuate the taint of the earlier suggestiveness. The issues that gave rise to the presumption of suggestiveness with respect to the photographic arrays make it impossible to determine the exact composition of the set books or when L.G. viewed them. Additionally, although conspicuously absent from Detective Quiñones' testimony, there is evidence that L.G. viewed loose photographs on more than one occasion. Exactly when these viewings took place, and whether defendant's photograph was among those shown to her, is unknown.

"The passage of time, usually a factor that works against an accurate identification, has a palliative affect where a tainted viewing has occurred. Periods between the tainted procedure and a further identification which [appellate courts] have found sufficient to achieve the desired affect vary; it can be as little as three weeks, as much as seven months, or something in between" (see People v Waring, 183 AD2d 271, 276 [2d Dept 1992][citations omitted]). Here, however, the court cannot conduct such an analysis; the evidence fails to establish the time period between the suggestive identification procedures and the properly-conducted identification procedure.

Therefore, based upon the evidence presented in this case, the court finds that the People have failed to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in the lineup procedure. Furthermore, defendant has satisfied his burden of proving that the procedure was unduly suggestive (see People v Chipp, 75 NY2d 327 [1990], supra; People v Jay R., 259 AD2d 436 [1st Dept 1999]People v Carmona, 233 AD2d 142 [1996], supra; People v Quiñones, 61 AD2d 765 [1978], supra; People v Baldwin, 41 Misc 3d 1217(A) [2013], supra).

Accordingly, defendant's motion to suppress the line-up identification is granted.

The People will be permitted an opportunity to demonstrate, by clear and convincing evidence, the existence of an independent source for L.G. to make an in-court identification at trial.

With respect to defendant's challenge of the admissibility of his oral and written statements, the People must prove their voluntariness beyond a reasonable doubt (see People v. Holland, 48 NY2d 861 [1979] People v. Anderson, 42 NY2d 35 [1977] People v. Huntley, 15 NY2d 72 [1965]). The People must also prove that defendant, who was subjected to a custodial interrogation, was advised of his Miranda rights and that he knowingly and voluntarily waived them (see Miranda v. Arizona, 384 US 436 [1966]).

As stated in People v. Williams (62 NY2d 285, 288-289 [1984]):

To be valid, an accused's waiver of his or her rights must be knowingly and intelligently made... [and] [a] court must always ascertain whether the defendant understood how the Miranda [*11]rights affected the custodial interrogation.... An individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process (citations omitted).As the Court of Appeals further stated in People v. Sirno (76 NY2d 967, 968 [1990]), when a defendant indicates that he understands his Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to commencement of interrogation is necessary to support a conclusion that the defendant waived those rights" (citing People v. Davis, 55 NY2d 731 [1981] North Carolina v. Butler, 441 US 369 [1979]).

The court finds that the People have proven, beyond a reasonable doubt, that defendant was sufficiently advised of his Miranda rights, that he knowingly and voluntarily waved those rights and that his statements were freely and voluntarily given. This ruling, on the voluntariness of defendant's statements, refers to those given by defendant on February 5, 2013 and February 6, 2013. However, the People have represented that they intend to offer only those statements given on February 6, 2013 on their direct case. Any rulings regarding the admissibility of the statements given on February 5, 2013, should it become an issue at trial, will be left to the trial court.

Accordingly, defendant's motion to suppress his oral and written statements is denied.

This constitutes the Decision and Order of the Court.

Dated: April 2, 2014

J.S.C.