The defendants, Jason Scott, Austin Scott and Christopher Hart move to suppress physical evidence and identification testimony. Defendant Austin Scott also moves to suppress his statements. The defendants are charged in a fourteen count indictment with the crimes of assault in the first degree (PL 120.10-1), burglary in the first degree (PL 140.30-2) (three counts), burglary in the first degree (PL 140.30-3), burglary in the first degree (PL 140.30-4), robbery in the first degree (PL 160.15-1), robbery in the first degree (PL 160.15-3), robbery in the first degree (PL 160.15-4); robbery in the second degree (PL 160.10-1), robbery in the second degree (PL 160.10-2A) (three counts) and robbery in the second degree (PL 160.10-2B). A combined Mapp/Huntley/Wade/Dunaway hearing was held before this Court on December 9, 2013, January 7, 2014, January 25, 2014 and February 7, 2014. Police Officer Philip Degorter and Police Officer John Riccardello testified on behalf of the People. The defendants did not present any witnesses. (A photograph was admitted as a defense exhibit).

On September 30, 2011, P.O. Degorter, an eight year veteran with the NYPD, was assigned to the Anti-Crime unit. He was partnered with Sergeant Lubomski and working a tour that began at 11:15 p.m. and ended at 7:50 a.m. . P.O. Degorter, in plain clothes, was the driver of an unmarked vehicle while Sgt. Lubomski sat in the driver seat. At approximately 1:44 a.m., the officers received information from central communications regarding a 911 call of a 10-31, which is a burglary in progress, at the basement of 33-57 164 Street, Queens County. P.O. Degorter drove from Whitestone to the location in approximately three to five minutes.

Upon arrival, P.O. Degorter observed Sergeant James Blauvelt and Police Officer Elaine Galvin, both in uniform, in front of the residence. With Sgt. Blauvelt leading the way, the four officers walked to a rear stairwell that led to a closed basement door. There were no visible signs of forced entry but as the officers approached, a loud female voice screamed from inside of the residence. Sgt. Blauvelt used his hands to push open the basement door revealing several people in various stages of undress sitting or laying on the floor. Sgt. Blauvelt then ordered all of the officers to back away from the basement door.

As additional police units arrived at the location, P.O. Degorter continued to receive updated information from central communications. This updated information described the perpetrators as four to five Black males wearing hoodies and dark clothing and advised that at least one of the perpetrators could still be at the location. The officers set a perimeter around the residence, preventing anyone from exiting or entering the location. They then began escorting people, one by one, from the basement, removing a total of 16 scantily clad people. All of those removed were frisked, handcuffed, and placed on the driveway of the residence.

One of the individuals removed from the basement was a person identified as Steven Gusikoff, the owner of the location. Mr. Gusikoff, dressed in his underwear and handcuffed by unidentified officers, advised P.O. Degorter that they were playing cards when they were robbed by four or five Black males all wearing hooded sweatshirts. The men, he said, had large guns, made everyone take off their clothes and "ran through" everyone's pockets after which they then ran to the rear of the residence. P.O. Degorter observed injuries on a person identified as Terrence Beaman, who was seated in the driveway.

Two individuals, later identified as the defendants Austin Scott and Jason Scott, were observed by P.O. Degorter exiting the residence from the main entrance. The main entrance is located to the side of the residence and faces the driveway. Jason and [*3]Austin Scott were ordered by the officers to get down. They complied and were both frisked and handcuffed.

Jason and Austin Scott were then taken from the main entrance to the section of the driveway where the people removed from the basement were. At this time, some of these individuals exclaimed "those are the guys!" (or words to that effect). Jason and Austin Scott were then separated from the group and taken to the front lawn of a neighboring house. Austin Scott was wearing a black hooded sweatshirt and blue jeans. (There was no evidence presented at this hearing as to Jason Scott's clothing.). P.O. Degorter removed from Austin Scott's pants pocket, $968, gloves and a hat. He also removed gloves, $23 and a mask from Jason Scott's pants pockets. Without administering Miranda warnings, P.O. Degorter then asked Austin Scott: "where are the guns?". Austin Scott responded: "guns are in the house". (This conversation was not memorialized at the scene, however P.O. Degorter later wrote it down in his memobook at the precinct.).

P.O. Degorter then separately took each of the four individuals who had been removed from the basement, approximately 10 feet away, for showup identifications of Jason Scott and Austin Scott. Jason Scott and Austin Scott were both handcuffed and seated next to each other on the lawn during these showups. The first person taken to view Jason Scott and Austin Scott was Mr. Gusikoff. Pointing to them, Mr. Gusikoff indicated that Jason and Austin Scott were part of the four or five males who ran into the house with guns. The next person to participate in the showups was Frank Tolino. After P.O. Degorter asked "do you see who did this?", Mr. Tolino indicated that the men on the lawn "did this".

Christopher Leon and Keith Thompson were the last two individuals taken to view the showups. P.O. Degorter asked the same question as he did with the other witnesses. Both Mr. Tolino and Mr. Leon identified both Jason Scott and Austin Scott as being responsible. (No evidence was presented at this hearing regarding any specific action taken inside of the residence by either Jason Scott or Austin Scott.)

Shortly thereafter, P.O. Degorter was advised by P.O. Riccardello, of the Queens North Blast Team, that a third person, later identified as Christopher Hart, had been apprehended and was now at the back of a police car (hereinafter RMP) parked approximately two houses away from the location. At approximately 2:30 a.m., P.O. Degorter walked Frank Tolino from the driveway of the location to the RMP. Mr. Tolino was asked by P.O. Degorter: Do you see anyone who did this? Mr. Tolino nodded towards the direction of the defendant Hart. At the time of this show-up, Christopher Hart was seated in the backseat of the RMP, alone and handcuffed. According to P.O. Degorter, during this show-up, the dome lights of the RMP illuminated the vehicle. (This testimony [*4]is inconsistent with the testimony of P.O. Riccardello who indicated that he used his flashlight to illuminate the interior of the vehicle).

The three defendants were then escorted back to the precinct and placed in separate holding cells. At approximately 5:09 a.m., P.O. Degorter proceeded to remove the defendants from these cells to interview rooms where Miranda warnings were administered to each defendant. Each defendant declined to make a statement. Upon the instruction of Detective Padodo, P.O. Degorter provided bottles of water to each of the defendants. These water bottles were subsequently recovered from each holding cell, vouchered and sent to the NYPD lab for DNA testing.On September 30, 2011, P.O. John Riccardello, a seven year veteran of the NYPD, was working a tour that began at 7:30 p.m. and ended at 4:00 a.m. He was working with his partner, P.O. Christopher Bramwell, as part of the PBQ North Blast unit. (PBQ North Blast unit is a burglary larceny surveillance team focused on investigations from the northern part of Queens county). They were dressed in plain clothes and traveling in an unmarked 2006 Mercury Grand Marquis in which P.O. Riccardello was the driver. At approximately 1:43 a.m, they were in the area of Roosevelt Avenue when P.O. Riccardello received a call of a burglary in progress at 33-57 164 Street. Using turret lights and sirens, he responded to the location within five minutes. At the location, he observed several marked and unmarked police vehicles at the scene. P.O. Riccardello then assisted in the setting up of a perimeter around the house. After approximately five to ten minutes at the location, he heard a noise, which sounded like banging, coming from the back of the residence near a fence. P.O. Riccardello followed the direction of the noise as it moved away from the location. The sound traveled from a distance of a house and a half away before P.O. Riccardello saw, from approximately 60 to 70 feet away, a Black male walk out from the rear of a house onto the street. This male, later identified as Christopher Hart, appeared to be approximately 5 feet 10 inches tall and was wearing a dark overcoat with a visible light colored shirt underneath. P.O. Riccardello, carrying a radio on his belt, moved towards Mr. Hart with his shield and flashlight. Mr. Hart ran perpendicular to P.O. Riccardello before falling to the ground next to a parked four door sedan vehicle. Mr. Hart then placed his legs underneath the car. P.O. Riccardello approached Mr. Hart, who was bleeding, handcuffed him and placed him inside of a marked police vehicle which had pulled up to the scene. P.O. Riccardello guarded this vehicle for approximately five minutes before Frank Tolino appeared with P.O. Degorter for a showup. According to P.O. Riccardello, during this procedure, he used his flashlight to illuminate the inside of the car. He was soon [*5]thereafter informed by P.O. Degorter of a positive identification.

This Court must decide whether the pre-trial identification procedures conducted in this case were so unduly suggestive that there was a substantial likelihood of misidentification. See, Neil v Biggers, 409 US 188 (1972). "Showup identifications, by their nature suggestive, are strongly disfavored but are permissible if exigent circumstances require immediate identification..., or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately... ."

See People v Riley, 70 NY2d 523, (1987) citing People v Rivera, 22 NY2d 453(1968)and People v Love, 57 NY2d 1023 (1982).

In this case, the showup identifications of defendants Austin Scott and Jason Scott were separate and apart from Christopher Hart. This Court will first address their identifications.

This Court finds that Jason Scott and Austin Scott were initially spontaneously identified by the group of people taken out of the basement. After these initial identifications, and in this rapidly changing environment, it was not unduly suggestive for P.O. Degorter to immediately take each of the four witnesses, separately, to the neighboring yard for showup identifications. "Showups conducted in close temporal and spatial proximity to the commission of the crime being investigated are generally permissible, where the procedure used is not unduly suggestive... ." People v Dunbar, 104 AD3d, 198 217 (2d Dept. 2013), citing People v Fox, 11 AD3d 709 (2d Dept. 2004). Although the dual showups of Austin Scott and Jason Scott, with multiple witnesses, were not under ideal conditions, there was no evidence presented at this hearing which showed that any of these factors influenced the identifications made by any of the witnesses. See People v Alexander, 226 AD2d 548,(2d Dept. 1996) (finding that the simultaneous showup identification of a defendant by a robbery victim and a witness near the crime scene and within several minutes of the robbery was not unduly suggestive). See also People v Colson, 148 AD2d 626 (2d Dept. 1989) (finding that a showup was not rendered unduly suggestive by the mere fact that two defendants were viewed together).

Furthermore, although both Austin Scott and Jason Scott were handcuffed at the time of the showup, this fact in of itself does not cause the showup to become unduly suggestive. See People v Delances, 262 AD2d 249 (1st Dept. 1999) (finding that a showup was not unduly suggestive even though it was conducted before a group of victims, while defendant was in handcuffs and accompanied by uniformed officers.) Indeed, the evidence showed that because of the fluidity and volatility of the scene, it was [*6]appropriate for the police, for their own safety and for the safety of any of the victims, to frisk and temporarily handcuff everyone, including the defendants, as a precaution until they could sort out who were victims and who were perpetrators.

In arguing that the showups were unduly suggestive, the defendants primarily rely on two cases (1) People v Adams, 53 NY2d 241 (1981) and (2) People v Ford, 100 AD2d 941 (2d Dept. 1984). In Adams, the Court of Appeals found that a showup was "unnecessarily suggestive" when it occurred hours later at the station house and where the victims were instructed that the police had the suspected robbers. See Adams at 249. In Ford, two victims were robbed by three men at their apartment. After a canvas with one victim who was unsure about his identification, the defendant was transported to the apartment in handcuffs in order that the second victim could view the defendant. The Court found the showup under these circumstances, along with the inconsistent testimony of the second victim, made the identification unreliable and unduly suggestive. See Ford at 943.

Clearly the facts of Adams and Ford are distinguishable from the case at bar where during the course of a chain of unbroken events, the suspects were quickly identified at the scene of the crime. Indeed the Court in Adams duly noted that "...in the interest of prompt identification, procedures that are less than ideal may be anticipated and tolerated." See Adams at 383. Furthermore, unlike Adams and Ford, at the time of the showups here, the police were still attempting to distinguish armed suspects from the victims. Under these exigent circumstances, it was lawful for the police to ensure that the correct individuals were being apprehended.

Accordingly, the motions of defendants Jason Scott and Austin Scott to suppress identification testimony are denied in all respects.

The Court next turns to the identification of Christopher Hart. This Court finds that it was proper for P.O. Riccardello to stop the defendant Hart and briefly detain him until a showup could be conducted. See People v Hicks, 68 NY2d 234 (1986). P.O. Riccardello had reasonable suspicion that Mr. Hart was involved in the burglary when he observed Mr. Hart, a Black male wearing dark clothing, scurrying away from the scene, minutes after the crime was committed and when several perpetrators were still outstanding.

With regards to the showup itself, using the analysis of the Court of Appeals in People v. Duuvon, 77 NY2d 541 (1991), this Court finds that despite the fact that defendant Hart was handcuffed and seated in the back of a police car, the showup procedure utilized here was not unduly suggestive. In Duuvon, the [*7]defendant was arrested, handcuffed, placed in the rear of the police car and was transported around the corner where he was identified by the employee of a dry-cleaning establishment that he had just robbed. The Court of Appeals determined that a showup under these circumstances was not so suggestive as to create a substantial likelihood of misidentification. See Duuvon at 544. See also People v Calero, 105 AD3d 864 (2d Dept. 2013). Furthermore, this Court does not find that it was unduly suggestive to illuminate the interior of the police vehicle (either by dome light or flashlight or both) to enhance the witness's ability to observe.

Accordingly, the motion of defendant Christopher Hart to suppress identification testimony is denied.

Based on the spontaneous identifications of Jason Scott and Austin Scott, and the showup identifications that followed, the police had probable cause to place both men under arrest for burglary. Furthermore, this Court finds that the police also had probable cause to arrest Christopher Hart for the crime of burglary after he was identified by Mr. Tolino. There is no basis for suppression of any of these identifications as the product of an unlawful arrest.

This Court now turns to the seizure of property to wit: $968, a pair of gloves and hat from Austin Scott's pants pockets and the gloves, $23 and a mask from the Jason Scott's pants pockets. This Court finds that these items were lawfully recovered pursuant to a search incident to the lawful arrest of the defendants. See People v Perel,34 NY2d 462 (1974).

This Court next turns to the statement, "guns are in the house", made by the defendant Austin Scott. Although, this statement was made in response to P.O. Degorter's question and while Austin Scott was in custody, this Court finds that the public safety exception to Miranda is appropriate. At the time of the statement, the police were in the midst of an ongoing investigation involving four or five armed perpetrators. The Court finds that P.O. Degorter's question "Where are the guns?" was proper as the officers needed to ensure the safety of the police officers and civilians at the location. See, New York v Quarles, 467 U.S. 649 (1984); People v Howard, 162 AD2d 615 (2d Dept. 1990). Thus, there is no basis for suppression of Jason Scott's statements. Furthermore, as previously discussed, it is clear that the defendant's statements were not the product of an unlawful arrest.

Accordingly, the motion of defendant Jason Scott to suppress his statements is denied in all respects.

Finally, this Court turns to the recovery of the water bottles from inside of the holding cells of each of the defendants. This Court finds that recovery of these bottles do not fall into the scope of Fourth Amendment protection as the [*8]bottles were recovered from an area where the defendants had no legitimate expectation of privacy. See People v Ramierez-Portoreal, 88 NY2d 99,108 (1996); People v Ginosyan, 148 AD2d 630 (2d Dept. 1989); People v Wesley, 73 NY2d 757 (1989). Furthermore, this Court does not find that the use of deception by the police to obtain DNA from these bottles violates due process rights. It is well settled law that the police may engage in a ruse with respect to a defendant as long as it is not coercive or so fundamentally unfair as to deny due process. Here, the offering of water to the defendants was neither coercive or fundamentally unfair. Therefore it was lawful for the police to retrieve the bottles and attempt to obtain DNA from them. See People v LaGuerre, 29 AD3d 820 (2d Dept. 2006) (finding that detectives did not deprive defendant of due process when they obtained sample of his DNA from a chewing gum he voluntarily discarded in course of contrived taste test challenge).

Accordingly, the motions of the defendants to suppress physical evidence, to wit: water bottles, are denied in all respects.

This foregoing constitutes the order, opinion and decision

Stephen A. Knopf, J.S.C.