In the Matter
of Noel M. A Person Alleged to be Juvenile a Delinquent, Respondent.
|
D-41450/14
Appearances: Holly Cooper, Esq., for petitioner Corporation Counsel
Lydia Cooper Esq., for respondent Noel M.
Mary Bednar, J.
By petition filed on July 23, 2014 the respondent has been charged with numerous
counts, the highest being Attempted Criminal Possession Of A Weapon In The Second
Degree (Penal Law § 110/265.03). The respondent alleges that statements he
allegedly made to the police on the date of the arrest were involuntarily made, and has
moved for suppression of those statements.
Claiming to be aggrieved by an illegal search and seizure the respondent has
also moved for an order suppressing the introduction of tangible evidence at the
prospective fact finding hearing.
With respect to tangible evidence, the Presentment Agency has the burden of
going forward to show the legality of police conduct, while respondent has the ultimate
burden of proving that the evidence should be suppressed (People v. DeStefano,
38 NY2d 640, 653; People v. Pettinato, 69 NY2d 653, 654).
With respect to respondent's statements, the Presentment Agency must
establish voluntariness beyond a reasonable doubt (People v. Valerius, 31 NY2d
51, 55; People v. Rosa, 65 NY2d 380, 386).
In order to determine whether respondent's statements, should be suppressed,
a Huntley/Mapp hearing was conducted before [*2]me on
July 23, 2014 and July 24, 2014. The hearing was reopened on September 9, 2014 for the
Presentment Agency to present additional evidence. Police Officer John Riquelme, Park
Enforcement Police supervisor Larry Durante, Police Officer Ramos, Police Officer
Michael Espenberg, and Police Officer Lauren Cinnante testified for the Presentment
Agency during the July hearing dates. Detective Carl Roadarmel, Police Precinct
Custodian Karen Williams and Police Officer Johnny Solorzano testified during the
reopened portion of the hearing. Respondent presented no evidence. Oral summations
were delivered by the parties. Based upon the testimony of the witness, I make the
following findings of fact and conclusions of law.
FINDINGS OF FACT
Police Officer John Riquelme testified that on July 12, 2014 at 5:35 p.m. he
was in uniform and working with his partner at Central Park's Lasker pool, when three
males were escorted from the pool by Park Enforcement Police. "One of the gentlemen
said that you're throwing us out of the pool, when this person has a firearm,' that's what
he said to the Park's employee, and he pointed out a locker." (Tr. 7-23-14, p. 6, ll.
4-6).
This conversation was relayed to Officer Riquelme by a member of the Park
Enforcement Police, who "approached us and told us that somebody possibly had a
firearm."(Tr. 7-23-14, p. 6, ll. 9-10). Officer Riquelme was given a description of the
person who possibly had the gun: "fair-skinned male, wearing blue shorts with two white
stripes." (Tr. 7-23-14, p. 7, ll. 4-5). At 6:20 p.m. Officer Riquelme saw someone who
matched the description walk past him and jog into the locker room. At the suppression
hearing the witness identified the person he had seen jog into the locker room, as the
respondent.
Officer Riquelme followed the respondent into the locker room. "We were
watching him. He took about, I'd say, two minutes, he was looking around, looking for a
locker, looking. Then he found his locker. Keyed the locker. Opened it." (Tr. 7-23-14, p.
8, ll. 3-5). The respondent removed sunglasses and shoes. He was about to close the
locker when a police officer said "Can you just hold on a second? What else do you have
inside your locker?" (P. 8, ll. 19-20). The respondent then removed two cellphones and a
second pair of sneakers.
"At that moment we see a bulk, like a bulge in the shirt." (Tr. 7-23-14, p. 8,
ll. 21-22). The shirt Officer Riquelme saw was in the back of the locker and respondent
was standing a foot from the locker. The police asked respondent "what do you have in
there?" The respondent stayed quiet and the police told him "please remove it, take it
out." (Tr. 7-23-14, p. 9, ll. 8-9; 10-11). Respondent removed the shirt and placed it on a
wood bench near the locker, causing a "thud" sound. Officer Solarazan asked "Wait a
minute. What do you have there?" [*3]Respondent
answered "something I shouldn't be carrying." Officer Solarazan asked what it was and
respondent answered "a gun." (Tr. 7-23-14, p. 9, ll. 18-19; 20-22).
The respondent was immediately handcuffed. After he was handcuffed "we
put on the gloves, took a look, we saw the gun. At that moment I requested a supervisor
to respond to the scene." (Tr. 7-23-14, p. 10, ll. 7-9). Respondent was placed into an
office the police have near the locker room. "It's an office, it has a desk, it has a window
that you can see part of the swimming pool. It's 20 feet—20 by 20? It's a small
room." (Tr. 7-23-14, P. 10, ll. 12-14). An Officer Ramos stayed with respondent in the
office, for 45 minutes.
Twenty-five to 30 minutes after respondent was placed in the police office,
Officer Contreares from the Evidence Collection Team responded to the scene. Officer
Ramos and an Officer Espenberg transported respondent to the Central Park Police
Precinct, which was 20 blocks from the Lasker pool. Officer Riquelme stayed at the pool.
The witness also told the court that there were about 1,000 people at the Lasker pool the
day respondent was arrested.
On cross examination Officer Riquelme testified that a seasonal aid with the
Park Enforcement Police escorted the three males from the pool and another seasonal aid
told his supervisor what the males said about the gun. The supervisor then told Officer
Riquelme about the accusation concerning a gun. All three males who were escorted
from the pool relayed the information about the gun and none of the males was
handcuffed. The Parks Enforcement Police supervisor gave Officer Riquelme the
information about the gun at 5:30 p.m.
The respondent was pointed out to Officer Riqueleme by one of the Park
Enforcement Police personnel who said "That's the male that we think possibly has a
firearm." (Tr, 7-23-14, p. 16, l. 21). The respondent was wearing bright blue shorts with
stripes and "they were pretty long. So after that we just were focusing on him." (Tr.
7-23-14, p. 17, ll. 3-5). The original description of respondent's clothing that Officer
Riquelme was given was blue shorts with two white stripes. When respondent went into
the locker room he was followed by Officer Riquelme and Officer Solarzan.
The witness described respondent's locker as one foot high and two feet
deep. Swimmers bring their own locks to lock the lockers. Officer Riquelme did not see
the shirt in respondent's locker until after the second pair of sneakers had been
removed.
Respondent was only wearing swim shorts when he was handcuffed and
escorted to the police office, which was air-conditioned. Respondent was in the office 30
to 40 minutes. Fifty minutes passed from when Officer Riquelme was told about the gun,
[*4]until he followed respondent into the locker room.
Officer Riquelme stood on the pool deck during the 50 minute interval and during that
time he spoke to one of the three males who informed the Park Enforcement Police about
the gun.
"I asked one of the gentlemen that pointed out the locker said that he had a
firearm, was leaving the pool. And I asked him, do you have ID?'" The male refused to
give the officer his identification. "I held onto his bookbag, actually. I told him the
severity of the claims he's making of someone having firearm inside a public area. You
can't just say that and then just leave the pool, just leave an area and leave like that. He
just got I'm 13 years old and I am not a snitch, I am not snitching on anyone." (Tr.
7-23-14, pp. 26-27, ll. 12-18, 20-25; 1).
The Park Enforcement Police did not have the names of the males who
alerted them about the gun. After respondent was handcuffed Officer Riquelme spoke to
Kano Rivera, the Park Enforcement Police seasonal aid, who alerted his supervisor, Mr.
Durante, about what the three males said about the gun. The seasonal aid told Mr.
Durante that he was informed, "A kid with a locker over here has a gun, a .25
millimeter." (Tr. 7-23-14, p. 29, ll. 9-10). After this information was relayed by the
seasonal aid, Mr. Durante spoke to the three males, "[w]hen they made the claim, he was
trying to speak to them. They pointed out a different locker, actually, saying this person
here has that firearm.'"(Tr. 7-23-14, p. 30, ll. 10-14).
The Park Enforcement Police passed this information on to Officer
Riquelme and showed him the locker that the three males had pointed to. Based on this
information the police followed a Caucasian male and his son into the locker at six p.m.
After the man and his son removed the contents of his locker the police asked him if he
had anything else in his locker and he said that he did not. The police let the Caucasian
male and his son leave, without further investigation.
After being escorted from the pool area one of the three males "...stood
there, waiting for his—actually, they all stood, waiting for his buddies." (Tr.
7-23-14, p. 30, ll. 16-17).
On re-direct examination Officer Riquelme testified that at 6:10 p.m., which
was after the police had followed the male Caucasian and his son into the locker room,
Larry Durante pointed out respondent to the police as the person suspected of having a
gun. One of the three males removed from the pool had pointed out respondent to Mr.
Durante.
Larry Durante testified that he is employed as a New York City Parks and
Recreation supervisor and is a peace officer. On July 12, 2014 at 5:15 p.m. he was
working at the Lasker pool. "We were ejecting two individuals from the pool for
disorderly behavior. And we were bringing them into the locker room. And the [*5]two individuals informed me, they said, Larry, you're
throwing us out for our behavior but people are doing crazy things here." And I said,
what?' They said, This kid has a gun.'" (Tr. 7-23-14, p. 36, ll. 7-13).
The males gestured towards a locker and Mr. Durante asked them to show
him who the person with the gun was. "We walked out to the pool deck, and he showed
me an individual sitting down and he pointed him out to me." (Tr. 7-23-14, p. 36, ll.
23-24). The person they pointed out was on the pool bleachers, wearing blue shorts with
two white stripes down the sides.
"I asked some of our park security and other individuals to watch him. As
we were ejecting the other two—the disorderly kids out, one of the kids came back
to reclaim something. And I said, can you show me the one who has the gun?' And he
said, pointed out the same person with the blue shorts and white stripes." (Tr. 7-23-14, p.
37, ll. 6-12). The two males were not together when they pointed out the
respondent—they did so separately.
Mr. Durante informed Officer Requilem about the accusation made by the
three males. When respondent went into the locker room police officers followed. Mr.
Durante also entered the locker room, but by the time he was inside respondent had
removed a sweatshirt, two phones and sneakers. He saw him remove a t-shirt from the
locker and heard respondent say " I have something that I shouldn't have.'" (Tr. 7-23-14,
p. 41, l. 17). He then saw the police handcuff respondent.
On cross-examination Mr. Durante testified that he does not know the names
of the three males ejected from the pool. He had, however, seen them several times
before the incident. "They're regulars, they come there quite often." (Tr. 7-23-14, p. 43,
ll. 5-6).
Mr. Durante told the court how the three males told him that they knew of
somebody at the pool who had a gun:
What happened was, when we were escorting them out, we brought them
into the locker room. And what happened was the first person got, he is dressed quickly,
and then I said I want you both to leave.' And they both, just before the first person left,
he said, there are people doing crazy things, like this kid has a gun. And he came to me.'
Well, who has a gun?' He said, This kid.' And I said, Well, who is he?' And he walked
out and identified him. (Tr. 7-23-14, p. 8, ll. 19-25)
Mr. Durante also elaborated on the sequence of events when the males
pointed out respondent:
...The first person that went with me after he identified him, he left. And
then I went back into the locker room, he was also gone, but he came back down to get
something, he came back down. I said who was the person that has the gun? And then
he came back to me and he pointed out the same person. (Tr. 7-23-14, pp. 46-47, ll.
20-25;1)
One of the males also told Mr. Durante how they learned about the gun.
"According to him they all came in together, so that's why." (Tr. 7-23-14, p. 47, ll. 9-10).
He asked the males "...to leave, but be visible."(Tr. 7-23-14, p. 50, l. 9). When Mr.
Durante followed respondent into the locker room, he brought two co-workers with him.
He heard a "thump" when respondent placed his shirt on the bench by the lockers. The
police officers and park personnel were all wearing uniforms. Respondent was wearing a
swimsuit and was wet.
Mr. Durante also testified that after the males identified respondent as being
the person with the gun, he pointed out respondent to Officer Riquelme, while
respondent was sitting in the bleachers. The locker the two males pointed to as
containing the gun was not respondent's locker. Rather it was "like maybe two lockers
over," from respondent's locker (Tr, 7-23-14, p. 53, l. 23).
Police Officer Ramos testified that on July 12, 2014 she was in uniform in
her office at the Lasker pool. At 6:30 p.m. the respondent was placed in her office in
handcuffs for her to watch him. Respondent and Officer Ramos were alone in the office
when "I asked him if he had a gun with him. He said yes' and that he had—he was
saving it for his friend. That was it." (Tr. 7-23-14, p. 57, ll. 22-24). After 30 to 40
minutes another officer came into the office, to transport respondent to a police
precinct.
Officer Ramos helped transport respondent to the precinct, where an officer
Epsenberg took over. Officer Ramos left the precinct soon thereafter and had no further
interaction with respondent. The office at the Lasker Pool where she and respondent
waited was near the locker rooms. "It has a window, air conditioner and it has two
tables." (Tr. 7-23-14, p. 59, ll. 3-4).
On cross-examination Officer Ramos testified that respondent was wearing
only a bathing suit the entire time she was with him. She did not offer him anything to
wear because, "We didn't have anything available for him to wear." (Tr. 7-23-14, p. 60, l.
6). Officer Ramos sat next to respondent in the back of the police car for the ten minute
drive to the police precinct and respondent was handcuffed. She never offered
respondent food or drink.
Under questioning by the court Officer Ramos testified that the respondent's
statement to Officer Ramos was initiated when the officer asked him "What happened?"
or "Why are you in cuffs?"(Tr. 7-23-14, p. 63, ll. 6-7).
Police Officer Michael Espenberg testified that on July 12, 2014 he was
assigned to the Central Park Police Precinct and was working with Officer Burgos. At
6:30 or 6:45 he was contacted from the Lasker pool by the patrol supervisor Sergeant
Allua and asked to transport two youths from the pool to the precinct.
One of the youths to be transported was Joshua M., who is respondent's
cousin. Officer Espenberg was told that his sneakers were in the same locker as
respondent's gun and "they just wanted to question him." (Tr. 7-23-14, p. 67, l. 13).
Officers Burgos and Espenberg transported Joshua M. from the pool to the precinct in an
RMP and Joshua was not handcuffed. The officers placed Joshua in a precinct
conference room and Officer Espenberg returned to the Lasker Pool at seven p.m. At the
pool he saw Sergeant Allua, who instructed him to transport respondent to the precinct.
Officer Espenberg went to the office where respondent was being held. He and Officer
Ramos placed him in an RMP and transported him to the precinct, which was five
minutes away. There was no conversation in the car.
Officer Ramos took respondent to the precinct's juvenile room, but had no
further involvement in the case. "The juvenile room is about a ten by four room, that has
a desk half the size of the room with the computer, with two bench seats to the back of
the wall, with a glass window to the right side." (Tr. 7-23-14, p. 71, ll. 2-5). There is a
window in the room that leads out to the desk officer, but a blind was covering the
glass.
Respondent was taken to the juvenile room at 7:12 p.m. and Officer
Espenberg sat him in a chair. "I uncuffed one hand and put the other cuff on the seat."
(Tr. 7-23-14, p. 72, ll. 15-17). Thirty to 45 minutes after respondent was placed in the
room Officer Espenberg was informed that respondent's guardian was at the precinct.
Officer Espenberg watched respondent in the juvenile room for two hours,
but they had no discussion about the firearm and respondent never indicated that he
needed food, drink or a restroom. After two hours the arresting officer entered the
juvenile room and said he would take over. Officer Espenberg had no other contact with
respondent.
In response to questions from the court Officer Espenberg testified that he
was with respondent until 9:30 p.m. and the entire time respondent was clothed in
nothing but swim trunks.
On cross-examination Officer Espenberg testified that the desk Sergeant
informed him when respondent's aunt arrived, [*6]but he
did not share this news with respondent. Officer Espenberg never offered respondent any
clothes and respondent did not indicate that he was cold.
Police Officer Lauren Cinnante testified that on July 12, 2014 she was
working in plain clothes with Detective Roadarmel, when at 6:45 p.m. she received a call
to respond to the Central Park Precinct to "enhance a case" which means "further
question the defendant on anything that transpired regarding that arrest." (Tr. 7-23-14, p.
83, ll. 16-17). She and her partner reported to the precinct and at 7:45 p.m. the
respondent arrived as did two witnesses—Larry Durante and Auxillary Officer
Keanu Rivera. While officer Cinnante interviewed Mr. Durante and Mr. Rivera,
Detective Roadarmel interviewed three witnesses. "They were three young gentleman
that were being escorted out of the Central Park Pool for being disorderly by Larry
Durante and Auxillary Officer Keanu." (Tr. 7-23-14, p. 85, ll. 17-19).
Later in the evening Detective Roadarmel told Officer Cinnante what
transpired during his interview of the three witnesses. "They basically pointed at Noel M.
as having a firearm. They also let him know that he actually showed it to them that day in
the park." (Tr. 7-23-14, p. 85, ll. 22-24).
Officer Cinnante also testified about her interviews with Larry Durante and
Joshua M.. Mr. Durante told Officer Cinnante that while escorting three males from the
Lasker pool one of them said "I don't understand why you're taking us out of the park,
when there are people in here with guns." (Tr. 7-23-14, pp. 86-87, ll. 25;1). The males
then pointed out Joshua and Noel M. as being the people who had a gun.
Officer Cinnante interviewed Joshua M.—who is respondent's
cousin—in the presence of his mother, at 8:50 p.m.Joshua and his mother were
read Miranda warnings and agreed to be interviewed. "At which time Joshua M. actually
stated that he was unaware that the firearm was in the locker at that time, but he did see
the firearm at the apartment prior to going to the park that day and it was not his firearm."
(Tr. 7-23-14, p. 88, ll. 11-14).
Officer Cinnante next interviewed respondent. Also present at the interview
were Detective Roadarmel, the arresting officer and Mrs. M., respondent's aunt, who is
also Joshua M.'s mother. Nobody was carrying a firearm. "I was sitting with my back to
the door. My partner, Detective Roadarmel, was seated to the left of me. The arresting
officer was seated to the right of me. Noel M. was directly in front of me. And his aunt
was sitting to the side of him." (Tr. 7-23-14).
Detective Roadarmel read the six Miranda warnings to respondent and his
aunt from a Miranda sheet. They answered yes to each question and Detective Roadarmel
wrote "yes" next to each [*7]question on the sheet.
Respondent, his aunt and Detective Roadarmel signed and dated the Miranda sheet.
I asked Noel M. why he felt it was necessary to have a firearm in Central Park pool.
He then stated that he has beef with people. I then asked him if he is affiliated with any
gangs. He said yes, he was, that he's affiliated with the OYG, which is also known as the
Young Gunners, who he said had a beef with. He said the 1040 Gang, who he said was
usually at the Central Park pool. (Tr. 7-23-14, pp. 96-97, ll. 22-25; 1-3).
He also told the police that he got the gun two days earlier from a member of the
Young Gunners gang, and that he brought the gun into the Central Park pool by placing
it into the waistband of his swimsuit. He said the firearm was a.25 caliber, with a white
handle and black barrel. He had shown it to his friend Thomas Williams, who was one of
the three eyewitnesses, who had been removed from the pool. The interview lasted 20
minutes.
On cross-examination Officer Cinannte testified that after Joshua M. was
interviewed she walked with respondent's aunt to the juvenile room. During this walk "I
believe I asked if she wanted to speak to him, and she said that she would actually do that
after we spoke together." When being interviewed by police respondent wore only his
swimsuit. Auxilary Officer Keanu Rivera told Officer Cinannte that one of the witnesses
at the pool had pointed out Noel and Joshua, as having been together.
The Miranda warnings were issued at 9:25 p.m. Respondent did not speak to
his aunt before the issuance of Miranda warnings.
After Officer Cinnante's testimony the parties rested and delivered oral
summations. The case was adjourned to August 29, 2014 for decision on respondent's
Mapp/Huntley motion.
On August 27, 2014 petitioner filed an order to show cause, in which they
asked that the suppression hearing be reopened for additional testimony, which would
allegedly show that respondent had been given a towel to cover his body, prior to his
interrogation.
On August 29, 2014 respondent filed response papers, in which he opposed
the application to reopen the hearing. The matter was adjourned to September 9, 2014 for
decision on the motion to reopen. Prior to the court date the court informed the parties
that the hearing would be reopened for additional testimony on September 9, 2014.
At the September 9, 2014 reopened-hearing the Presentment Agency called
Detective Carl Roadarmel, Karen Williams, a Police Department custodian, and Police
Officer Johnny Solorzano. The respondent called no witnesses. Oral [*8]summations were given following the testimony.
Detective Carl Roadarmel testified that on July 12, 2014 he was notified by
the desk sergeant at the Central Park Police Precinct that respondent had been arrested.
Detective Roadarmel went to the juvenile room where he first saw respondent. "He was
wearing a bathing suit, no shirt, I believe he had sandals or slippers on." (Tr. 9-9-14, p. 5,
ll. 14-15).
Detective Roadarmel told an Officer Solorzano to get a blanket for the
juvenile and the officer returned a minute or two later. "The blanket was given to Noel,
and then I proceeded to read his juvenile Miranda rights in front of his legal guardian, his
aunt, Janira M.." (Tr. 9-9-14, p. 6, ll. 3-5). The blanket was wrapped around respondent
while he was read his Miranda warnings.
On cross-examination Detective Roadarmel testified that the precinct was
air-conditioned on July 12, 2014. He only spoke to Officer Cinnante about this case in
regards to his DD5, which is a detective report. He also told the court that he sent Officer
Solarzano to get a blanket because, "...I wanted to make him comfortable before the
interview." (Tr. 9-9-14, p. 8, ll. 6-7). He also testified that respondent's aunt did not
speak to respondent before he answered any questions in the juvenile room.
Karen Williams testified that she is a custodian at the Central Park Precinct,
where she keeps a "change of clothes, food, pillow, blanket, shoes gym clothes." (Tr.
9-9-14, p. 13, ll. 1-2). One evening during either June or July "I came downstairs from
cleaning upstairs, walked past the juvenile room, and noticed the blanket and I wanted to
check to see whether the blanket was mine or not. And I saw my blanket was gone and so
then I took my blanket." (Tr. 9-9-14, p. 13, ll. 16-19).
Police Officer Johnny Solorzano testified that on July 12, 2014 he was
working at the Central Park Precinct, when Detective Roadarmel instructed him to get a
blanket. He got a blanket "[i]nside the precinct, I believe in an office. We were just
searching and that's where we found it. The only blanket we could find." (Tr. 9-9-14, p.
17, ll. 17-21). He gave the blanket to respondent.
On cross-examination Officer Solorzano testified that when Detective
Roadarmel asked him to get a blanket for respondent, he was in the juvenile room with
Officers Riquelme and Cinnante. At the time respondent was only wearing a bathing suit.
Officer Roadarmmel told the court that he has not spoken to either Officer Riquelme or
Detective Roadarmel about this case.
CONCLUSIONS OF LAW
The rules guiding street confrontations between the police and citizens was
set forth in People v. DeBour, 40 NY2d 210:
The minimal intrusion of approaching to request information is permissible when
there is some objective credible reason for that interference not necessarily indicative of
criminality. The nextdegree, the common-law right to inquire, is activated by a founded
suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a
policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory
information, but short of a forcible seizure. Where a police officer entertains a reasonable
suspicion that a particular person has committed, is committing or is about to commit a
felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person.
A corollary of the statutory right to temporarily detain for questioning is the authority to
frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of
the detainee being armed. Finally a police officer may arrest and take into custody a
person when he has probable cause to believe that person has committed a crime, or
offense in his presence. People v. DeBour, at 223
The fellow officer rule has been stated as follows:
The arresting officer acts with probable cause when he arrests on the
direction of a fellow officer who has probable cause or without such direction on the
basis of information received from a fellow officer who testifies at the suppression
hearing concerning how he obtained his knowledge, which information itself or together
with that known to the arresting officer establishes probable cause [FN1]
." (People v. Brnja, 50 NY2d 366, 373, n. 4).
In his oral summation respondent argued that the three males who told the
Park Enforcement Police about the respondent's gun were anonymous tipsters, since the
police did not know their names. As such, the police did not have enough information to
act as intrusively as they did. In the alternative respondent argues that even if the tipsters
were not anonymous the police possessed at most a common law right to inquire, since
the police were not informed that the tipsters actually saw the gun. Respondent further
contends that his Mirandized statements should be suppressed, as the police kept him in
his bathing suit for several hours, without giving him a shirt or shoes, all of which [*9]made respondent feel especially vulnerable and incapable
of giving a voluntary statement.
In his oral summation after the reopening of the hearing respondent asked
me to find that the testimony by the Presentment Agency's witnesses about the blanket
was tailored to satisfy constitutional objections. Respondent also argued that if the police
did give respondent a blanket they did so only after he was interrogated. In the alternative
respondent argues that it is irrelevant whether the police gave respondent a blanket prior
to questioning, as that can not balance the harm done by the fact that respondent spent
three hours wearing only his bathing suit while being handcuffed in police custody.
In their oral summation Presentment Agency argues that the police had
sufficient information to ask respondent to remove the items of his locker. Their
authority was also enhanced by the need to protect the public from the possible presence
of a firearm. In addition, while conceding that respondent's statement to Officer Ramos
must be suppressed, the Presentment Agency contends that the respondent's Mirandized
statement was attenuated from the improperly elicited statement.
In summing up after the hearing was reopened Presentment Agency argued
that the testimony about the blanket should satisfy any constitutional concerns about the
voluntariness of respondent's precinct statement.
Turning to my analysis the first issue is the status of the citizen informants
who told the Park Enforcement Police that respondent brought a firearm into the Lasker
Pool locker room.
"The bare report of an unknown, unaccountable informant who neither
explained how he knew about the gun nor supplied any basis for believing he had inside
information about [the defendant]" can not be the basis for reasonable suspicion
(Florida v. J.L., 529 US 266). But, "[e]ven in instances where the informant is
unidentified, where the police have had a face-to-face confrontation with the informant,
and have had an opportunity to evaluate his or her reliability, such information, while not
rising to the level probable cause, may provide the reasonable suspicion necessary for a
stop and frisk." People v. Dejesus, 169 AD2d 521, 522(1st Dept).
In the case at bar the reliability of the tip was enhanced by the fact that it was
conveyed in a face-to-face encounter with Parks Enforcement Police personnel
(see, People v. Cartagena, 189 AD2d 67 [1st Dept]; People v.
Acosta, 264 AD2d 630[1st Dept]; People v. Fernandez, 182 AD2d 431 [1st
Dept][cases emphasizing the ability to access the credibility of witnesses in face-to-face
encounters]). And the tipsters conveyed the source of their knowledge, as they implied to
Mr. Durante that they saw [*10]the gun in the locker
room.[FN2]
Although Mr. Durante did not convey that information to Officer Riquelme, under the
fellow officer rule he did not have to for the police to rely on Mr. Durante's
communication (see People v. Rosario, 78 NY2d 583 [finding that fellow officer
rule applies to peace officers and auxilary police]).
Also enhancing the reliability of the tip was that both tipsters pointed out
respondent at the pool (see People v. Brown, 288 AD2d 152 [1st Dept][police
had reasonable suspicion to stop and detain fleeing suspect after informant pointed out
defendant and claimed he had just mugged someone, even though police did not know if
informant had witnessed the mugging]; People v. Gonzalez, 138 AD2d 622[2nd
Dept][finding that "...an accusation against a specific individual from an identified
citizen is presumed reliable."]).
Moreover, the two males [FN3]
who informed the Park Enforcement Police about respondent's gun were not truly
anonymous. At least one of the informants remained at the scene long enough after
giving their tip to speak with Officer Riquelme and, thus, placed themselves in danger of
prosecution if their report was fabricated. In addition, they made themselves available to
Detective Roadarmel at the police precinct and frequented the Lasker Pool, where they
were known to The Parks Enforcement Police(see People v. Hicks, 38 NY2d 90
[informants who subject themselves to prosecution for conveying fabricated information
to police are afforded a high degree of credibility]).
The fact that one of the informants was uncooperative with Officer
Riquelme does not discredit their tip (see People v. Flow, 37 AD3d 303 [1st Dept][holding that
identified witness's lack of cooperation after defendant's arrest does not render his tip
unreliable]). Nor is it consequential that the police did not know the tipsters names
(see People v. Simpson, 244 AD2d 87 [1st Dept][fact that informant left scene
before being able to identify defendant or give his name does not detract from
information he gave to police]).
Overall, given that the tip was conveyed in a face-to-face encounter and the
two informants pointed out respondent as having a gun and conveyed the source of their
knowledge, while staying in the pool area long enough to be interviewed by police, [*11]who received the tip through the fellow officer rule, I find
that the police had reasonable suspicion to believe that respondent had a gun in his
locker.
Armed with reasonable suspicion the police acted legally when they
instructed respondent to empty his locker [FN4]
.
The case People v. Herold (282 AD2d 1 [1st Dept]) is instructive. In
Herold the police received a 911 call regarding a dispute involving a man with a
gun in front of a specific address. The caller described the person with the gun and left
her apartment number at the address, but conveyed no other identifying information.
When police arrived at the address they were buzzed into the building by the
person in the apartment the 911 caller identified. In the building's vestibule they
encountered a man who fit the description in the 911 call and immediately instructed him
to raise his hands. When he hesitated the police put his hands against a wall and searched
him, revealing a gun.
The justices found that even though the 911 caller did not give her name she
was not anonymous since she gave her apartment number, which subjected her to
prosecution if her claims were fabricated. The justices also found that the police could
infer that the 911 caller had seen the gun, since the firearm was allegedly displayed in
front of the building where the 911 call derived from. These facts gave the police
reasonable suspicion.
In addition, the court concluded that the police would have acted properly in
instructing defendant to raise his hands, even if they only possessed a common law right
to inquire. In so finding they noted "[w]here a described suspect is alleged to be armed
with a gun, courts have consistently recognized that the police, in undertaking a
common-law inquiry of the suspect, must be permitted to take limited precautionary
measures to protect themselves." (Herold at 7 [citations omitted]). They went on
to say that under a common law inquiry scenario the defendant's hesitation in raising his
hands gave the police the right to place defendants's hands against a wall and conduct a
frisk.The informants in the case at bar were more reliable than the informants in
Herold, in that the information conveyed at the Lasker pool was conveyed in a
face-to-face interaction, rather than a 911 call. The informants here also pointed out
respondent, whereas in Herold the police had to rely [*12]on a description to identify the suspect. Moreover, the
police in Herold had to infer how the informant knew the defendant had a gun,
while the informants here conveyed that they saw the gun in the locker room.[FN5]
The instant matter is also similar to Herold in that it involved a tip
about a firearm. As such the police could take the precautionary measure of instructing
respondent to remove items from his locker in order to protect themselves [FN6]
. And just as the police in Herold could place defendant's hands against the wall
after he hesitated to raise his hands, the police here could instruct respondent to remove
his shirt after he hesitated to remove all the items in his locker.
Overall, given the indicia of reliability surrounding the tip of a gun in a
public setting the police acted appropriately by exercising the minimally intrusive option
of instructing respondent to remove the items from his open locker. And when
respondent hesitated by only partially emptying his locker, that raised the level of police
suspicion, as did the fact that the shirt appeared to be wrapped around something "like a
bulge." These factors justified the instruction to remove the shirt from the locker, which
led to the tell-tale thud and question about what was in the shirt.(see People
v.Simpson, 244 AD2d 87 [1st Dept][Unidentified informant tells police officer that
man in car he describes waived a gun at him. Officer conveys this information to fellow
officer, who stops car matching description, places occupants in custody and conducts
search revealing a firearm. Even though informant left scene before arrest and did not
give his name, Justices found police actions were justified by probable cause, since tip
was conveyed in face-to-face encounter.]).
The case In the Matter of Shakir J. (119 AD3d 792 [2d Dept]), which
was cited by respondent in his oral summation, does not require a different result. In
Shakir J., the police, after observing respondent in a high crime area on the street
holding his waistband and looking over his shoulder, instructed him to lift his shirt up.
Respondent lifted only the back of his shirt, [*13]prompting the police to ask him to lift the front.
Respondent complied, revealing the butt of a gun. The trial court found that the police
had the right to ask respondent to lift up his shirt, but the Appellate Justices disagreed. In
so doing they found that the police observations gave them only a common law right to
inquire and that asking respondent to lift up his shirt was unduly intrusive.
Unlike the police in Shakir J., who relied on their equivocal
observations, the police here had specific information, from an identified informant, that
respondent had a gun. This gave Officer Riquelme reasonable suspicion that respondent
had a gun, rather than the common law right to inquiry possessed by the police in
Shakir J..
The next issue is to decide whether respondent's Mirandized statement is
attenuated from the improperly elicited statement respondent made to Officer Rosado
[FN7]
. In deciding the attenuation issue there are several factors to consider including:
...the time differential between the Miranda violation and the subsequent
admission; whether the same police personnel were present and involved in eliciting each
statement; whether there was a change in the location or nature of the interrogation; the
circumstances surrounding the Miranda violation, such as the extent of the improper
questioning; and whether, prior to the Miranda violation, defendant had indicated a
willingness to speak to police. No one factor is determinative. People v. Paulman, 5 NY3d
122, 130-131.
In addition "...the issue of attenuation is not appreciably different for
juveniles than for adults: in either case it is critical that there be a pronounced break
between the pre-Miranda and post-Miranda questioning." In re Daniel H., 67
AD3d 527, 529 (1st Dept).
In the case at bar several the following factors lead me to a finding of
attenuation: none of the police personnel involved in the non-Mirandized statement were
involved in the [*14]taking of the Mirandized statement;
the Mirandized statement was taken in a different location from the non-Mirandized
statement; the questioning of respondent during the taking of the non-Mirandized
statement was brief and non-coercive; and the time lapse of two hours between the
non-Mirandized statement and the Mirandized statement was sufficiently lengthy to
support attenuation (see People
v. Samuels, 11 AD3d 372 [1st Dept][45 minutes between Mirandized and
non-Mirandized statements found sufficient to support finding of attenuation]; People
v. Davis, 287 AD2d 376 [1st Dept][40 minutes between Mirandized and
non-Mirandized statements found sufficient to support finding of attenuation]).
The final issue is the admissibility of respondent's Mirandized statement.
According to FCA §305.2(7) "A child shall not be questioned..." unless a parent or
other person personally responsible for respondent's care has been notified, and if
present, is advised of the child's Miranda rights.
The ultimate inquiry is whether the prosecuting entity proved that the
statement was voluntary beyond a reasonable doubt through a consideration of the
totality of the circumstances (see Matter of Paul QQ., 256 AD2d 751, 751-752.
Relevant factors to be considered include respondent's age, prior criminal experience,
evidence of coercion by the police prior to obtaining the waiver and whether the
Miranda warnings were fully, clearly and adequately administered to the
youth'(Matter of Philip J., 256 AD2d 654, 656, quoting People v.
Boykins, 81 AD2d 922, 923; see Fare v. Michael C., 442 US 707, 729). Matter of Richard UU., 56
AD3d 973, 975 (3rd Dept).
It is undisputed that respondent and his aunt were properly advised of
respondent's Miranda rights. But the treatment of respondent after his arrest created an
environment that raises serious doubts about the voluntariness of respondent's statement
at the police precinct.
The Presentment Agency failed to alleviate these concerns through their
presentation of testimony about respondent receiving a blanket before being Mirandized
[FN8]
. Officer Cinnante [*15]testified unequivocally that
respondent was garbed only in his bathing suit while being questioned and no
explanation at the reopened portion of the hearing was offered to explain why her
testimony conflicted so dramatically with the scenario offered by Detective Roadarmel
[FN9]
. As such the Presentment Agency failed to clarify the circumstances under which
respondent was questioned, leaving the doubts raised by Officer Cinnante's testimony in
place.
It is unclear how long respondent remained wet after swimming, but Mr.
Durante made clear that he was wet when handcuffed in the locker room and there was
no testimony that he was allowed to dry off before being placed in Officer Rosado's
air-conditioned office, where he was subjected to improper questioning. In addition,
Detective Roadarmel testified that the Central Park Police Precinct was
air-conditioned.
All told respondent spent approximately three and one-half hours in police
custody, clothed in nothing but a bathing suit, in air-conditioned surroundings. At no
time did any police officer offer him a shirt, shoes or towel [FN10]
. Nor was there testimony that the police requested respondent's aunt to bring clothing for
respondent to wear while being questioned.
Respondent undoubtedly felt vulnerable and physically uncomfortable while
handcuffed and clothed in his wet bathing suit for such a long period and it is
inconceivable that the police were unaware of respondent's discomfort. The voluntariness
of respondent's statement was surely compromised by a desire to end his ordeal as
quickly as possible.
Whether it was vindictiveness or sheer neglect that was behind police
allowing respondent to remain only partially clothed while in custody, it was inexcusable
that they made no attempt to alleviate his unease. Such inaction is especially egregious
given that the police are charged with exercising "...greater care to insure that the rights
of youthful suspects are vigilantly observed." (People v. Hall, 125 AD2d 698,
701). [*16]Certainly any reasonable fifteen-year-old
would have felt intimidated and humiliated while in respondent's position (see Matter
of Renette B., 281 AD2d 78 [1st Dept][case in which First Department adopted
"reasonable juvenile" standard for evaluating voluntariness of juvenile statements]).
Adding to the discomfort and stress respondent likely experienced was the
abrupt questioning by Officer Rosado, while he sat wet in her air conditioned
office—a situation that overtly conveyed to respondent that the police lacked
regard for his well-being while in custody. While Officer Rosado's questioning is not, by
itself, enough to fatally taint the Mirandized statement, it contributed to the overall
coercive tone surrounding his treatment by police.
Also contributing to the sense of unfairness surrounding respondent's
questioning was the inherent conflict of interest his aunt had, being both the mother of
Joshua M. and guardian of respondent [FN11]
. The respondent presumably would have assumed that his aunt would have wanted him
to take responsibility for the gun, since it would exonerate his cousin (see Matter of
Chad L., 131 Misc 2d 965 [Fam Ct, Kings County][conflict of guardian during
Mirandized statement, who was respondent's aunt and the guardian of deceased who
respondent was accused of killing, is factor in finding that non-Mirandized statement
fatally tainted Mirandized statement]).
Viewing the totality of the circumstances—the fact that respondent
spent three and one-half hours in police custody clothed only in a bathing suit in
air-conditioned surroundings, and that he was wet for part of that time; that a police
officer improperly interrogated respondent, eliciting an inculpatory statement from him;
that the respondent's guardian present for Mirandized questioning had an inherent
conflict of interest—I find that the Presentment Agency has failed to prove the
voluntariness of respondent's statement at the police precinct beyond a reasonable doubt
(see Matter of Robert P., 177 AD2d 857 [3rd Dept][Mirandized statement tainted
by non-Mirandized statement, where improper statement taken after 15 year old was
awaken from sleep by police and taken to police station, where both statements were
made][In re Robert S., 22 Misc 3d 1120[A][Fam Ct, Bronx County][Age of 14
year-old respondent and [*17]fact that improperly elicited
statement was taken at one a.m. and that Mirandized statement was taken at
three-twenty-five a.m., is factor in suppression of both statements]).
The circumstances of respondent's detention would require suppression even
if I had found that he had been given a blanket prior to being Mirandized. By the time
respondent had supposedly been given the blanket by Officer Solorzano he had already
been subject to treatment that would have made any reasonable fifteen year old believe
that the police regarded his rights with contempt.
For all the reasons herein I find that respondent's motion to suppress his
statement to Officer Rosado and his Mirandized statement at the police precinct is
granted and that those statements are suppressed [FN12]
. The motion to suppress introduction at fact-finding of the gun recovered from the
locker in the Lasker pool locker room is denied.
So Ordered:
NY, NY
September 26, 2014
______
_____________________________
J.F.C.
Footnotes
Footnote 1:While the rule usually
applies where the existence of probable cause is at issue, it can also be used to determine
whether reasonable suspicion has been conveyed from one officer to another.
(See, People v. Gittens, 211 AD2d 242 [2nd Dept]).
Footnote 2:I find that respondent
was mistaken in his assertion at oral argument that the tipsters did not reveal how they
knew respondent had a gun.
Footnote 3:Although Officer
Riquelme and Officer Cinnante testified there were three informants I credit the
testimony of Mr. Durante that there were two informants, as Mr. Durante is the witness
who encountered the informants, when they told the Park Enforcement Police about the
gun.
Footnote 4:The Presentment Agency
did not argue that respondent consented to a search of his locker. In any event, I would
find that since respondent was surrounded by uniformed law enforcement officers when
he was instructed to remove the contents of his locker, the atmosphere was too coercive
for the Presentment Agency to "carry their heavy burden of proving the voluntariness of
[respondent's] consent to a search." People v. Quaglicta, 53 AD3d 670, 671 (2nd
Dept).
Footnote 5:Even if the two males
had not told Park Enforcement Police the source of their information the police could
infer that the informants saw the gun in the locker room, since they were told that
respondent had placed a gun in a locker.
Footnote 6:It is of no matter that
Officer Riquelme did not testify to being fearful for his safety or the safety of the 1,000
people at the Lasker pool the day of the incident, since such apprehension was
objectively reasonable (see People v. Moore, 32 NY2d 67, 72; People v.
Batista, 88 NY2d 650, 654) [cases where police had reason to fear for their safety,
even though they did not testify to such fear]).
Footnote 7:As previously noted
Presentment Agency concedes that Officer Rosado improperly questioned respondent at
the Lasker Pool and his statement to Officer Rosado must be suppressed. Given that
respondent was in handcuffs while in the Lasker pool office, it should have been clear to
Officer Rosado that her non-Mirandized questioning of respondent was likely to lead to
an incriminating response (see People v. Steele, 277 AD2d 932 [4th
Dept][Non-Mirandized question from detective to defendant "do you know why you are
here?" should have been anticipated to evoke an incriminating response, since detective
knew of evidence showing respondent's guilt]).
Footnote 8:I decided to reopen the
hearing as the First Department routinely permits the reopening of suppression hearings
where a motion to reopen is made prior to the rendering of a decision on the suppression
motion (see People v.
Cestalano, 40 AD3d 238 [1st Dept]; People v. George, 73 AD3d 401 [1st Dept]; People v. Banner, 61 AD3d
592 [1st Dept]). In addition, "[u]nder the circumstances here...there [is not] a
significant risk of tailoring, particularly since the officer [is] subject to cross examination
regarding whether he had discussed his testimony with the prosecutor." People v. McCorkle, 111
AD3d 557, 558).
Footnote 9:I note that Officer
Solorzano never specified in his testimony about whether respondent was given a blanket
before or after he was Mirandized. The most plausible explanation for the discrepancy
between the testimony of Officer Cinnante and Detective Roadarmel is that respondent
was given a blanket after making his statement.
Footnote 10:Officer Rosado's
testimony that there was no clothing available slides past the fact that since respondent
was arrested in a pool area the police must have had access to a towel that could have
allowed respondent to dry off while sitting in officer Rosado's air-conditioned office.
Footnote 11:In his oral
summation respondent chose not to make an issue of the aunt's conflict. In any case the
aunt's conflict was not severe enough to disqualify her as a proper guardian for purposes
of taking respondent's statement. For an excellent summary of guardian conflict of
interest cases in the Miranda context see Matter of Omar L., 192 Misc 2d 519
(Fam Ct, Kings County) (dual role of mother as parent of victim and respondent is no bar
to her acting as respondent's guardian during questioning)
Footnote 12:On September 18,
2014 I issued a decision and order on the instant suppression motion, in which I ruled on
the admissibility of respondent's non-Mirandized statement to police in the Lasker Pool
locker room. This ruling was unnecessary, however, as the Presentment Agency did not
intend to introduce that statement at fact-finding and respondent never moved to suppress
it. This amended decision excises that part of the September 18, 2014 decision which
dealt with the admissibility of the locker room statement. The September 18, 2014
decision and order is otherwise unchanged.