Defendant is charged in a ten-count indictment with, inter alia, one count of Burglary in the First Degree as a Sexually Motivated Felony (PL § 140.30 [2]) and one count of Attempted Rape in the First Degree (PL § 110/130.35 [1]). This Court conducted a combined Wade/Huntley/Dunaway hearing, followed by oral arguments and written submissions of the parties. By Order entered on or about November 13, 2015, this Court denied defendant's motion and this written decision follows.

The People presented the testimony of Detective Aubrey Henry (hereinafter "Detective Henry"), assigned to the Brooklyn Special Victims Squad, whom the court finds to be credible. Detective Henry, a twenty-four-and-a-half year veteran, had been assigned to the Brooklyn Special Victims Squad for approximately eight years. On June 5, 2014, at about 8:00 a.m., he became involved in an investigation concerning an incident that took place at 952 Jefferson Avenue in Brooklyn (H: 5-6). Although the investigation was initially conducted by different detectives of the Night Watch Special Victims Unit, Detective Henry conversed with fellow officers and familiarized himself with the paperwork to guide him with his investigation (H: 6; 47-50).

At the onset, Detective Henry spoke with the complainant who informed him that at about 11:30 p.m. on June 4, 2014, "she had been home on the computer, and she was administering her Advair medication. She said it was hot in the apartment [and] she was sitting on the couch. She fell asleep [and] was pretty much naked. She felt somebody standing over her. At first she wasn't facing the person, but then she turned around and thought it was her son," although he was actually at work during the time of the incident (H: 7; 59; 62). She further stated that she saw a man, whom she did not know, and he put his hands to her mouth. He told her not to yell because "his man was going to kill her" and that "his boy was there." The complainant, however, did not see anyone else in her apartment (H: 7: 60; 63).

After observing that his pants were down to his knees, she told him that "if [they] were going to do this, he needed to use a condom." Defendant complied but then began choking her and pushed her back on the couch. In the ensuing struggle, she started wheezing and told him that she needed to get her asthma medication. He allowed her to get it but they again struggled and eventually she managed to flee from the apartment to the street. Thereafter, defendant left and "went right" (H: 8; 63-65). Detective Henry recovered and viewed video surveillance of Jefferson Avenue, but he was "not able to identify a suspect fleeing from the scene" (H: 56-57).

The complainant also described her assailant as African American, five feet nine inches or five feet eleven inches tall, with a scruffy full beard, weighing 160 pounds, with short hair, and wearing a purple and green rugby shirt with a white collar, blue jeans, and white sneakers (H: 9; 65-67). The police recovered from the top of the stairs inside her apartment Wireless "Beats" headphones, a Kindle Fire and a letter bearing defendant's name from a driving school, none of which belonged to the complainant. Although a condom was recovered outside the apartment, Detective Henry did not know its precise location (H: 8-9; 52-54; 68). Along with defendant's name on the letter, there was also a telephone number, so Detective Henry's next step in the investigation was to verify whether the "Donovan Buyund" on the letter was the same person who had been in the apartment (H: 68-69).

On June 5, 2014 at approximately 11:55 a.m., using the description that was provided to him, Detective Henry conducted a photo array with the complainant. He chose the fillers for the photo array by inputting defendant's picture, taken in July 2013, into the database and the [*2]computer provided similar images. Defendant was depicted in photo number three of the array and the images of the fillers were of the approximate age, with facial hair and a similar hair type, except that defendant's hair is fuller on the top while short on the side. Detective Henry read the complainant the pre-viewing instructions report (People's Exhibit number 1A) and the viewing report (People's Exhibit number 1B), both of which she signed and initialed. He then showed her the actual photo array (People's Exhibit number 1C). Other than these instructions, Detective Henry did not have any other discussions about the photo array with the complainant.

After taking her time to view the array, the complainant selected number two and stated, "I believe he looks like the person that came into my apartment last night. His eyebrows look like the guy in my house last night." Further, she said "he had a round face like the person who was in her apartment." She then signed the picture depicting number two. Detective Henry did not investigate or learn anything about that individual (H: 9-15; 18; 69-73).

Notwithstanding the complainant's failure to select defendant from the photo array, Detective Henry nonetheless placed an I-card along with a wanted flyer containing defendant's photograph for his arrest, because of the existence of the mail bearing defendant's name from the scene. This was an indication to other officers that defendant should be apprehended on sight (H: 74-77).

Detective Henry called defendant on his cell phone number, specifically, the number listed on the mail from the driving school. Falsely identifying himself as "G," Detective Henry pretended to be from the driving school and said that they were scheduled to meet at Broadway and Cooper. He subsequently told him that he was a detective who wanted to meet with him regarding this investigation and defendant agreed to meet him at the corner of Cooper and Bainbridge (H: 19); the location that defendant "said he wanted to meet" was at Bainbridge and Rockaway and that is where he was apprehended (H: 77-78). Prior to meeting defendant, Detective Henry did not make any promises to nor threatened defendant (H: 18-19; 78-80).

Accompanied by Detectives Paribello and Soto, Detective Henry met with defendant at approximately 10:15 pm at the corner of Bainbridge and Rockaway for "a minute-and-a-half." He told defendant that the latter "needed to go back to [Detective Henry's] office to conduct the investigation" and did not make any promises to nor threatened him. Defendant, who was never handcuffed at the scene, was cooperative and polite. He agreed to get in the back of the car and was not free to leave if he wanted to do so (H: 20; 80-82). Detective Henry did not recall either he or the other detectives speaking to defendant during the twenty to twenty-five minute drive to the precinct. Further, he did not give defendant any information about the complainant's statements (H: 83; H1: 112).

At the precinct, defendant was placed in an interview room which was "a small room, maybe 12 by 12, one door, one window, table, three chairs." Detective Henry and Detective Haffenden were also in the interview room. "[Detective Henry] was seated with [his] back to the window, the defendant sitting to [his] left and Detective Haffenden was seated across from [him] by the door." Defendant was not handcuffed during this time and both detectives' firearms were [*3]on the other side of the office (H: 20-21). Detective Henry told defendant that he wanted to speak with him regarding the investigation and gave him Miranda warnings. After defendant indicated that he understood all the warnings by writing "yes" and initialing them, Detectives Henry and Haffenden signed the Miranda warning form (People's Exhibit number 2; H: 21-23).

Defendant stated that "he had been out with some friends. They had been drinking He had been drinking. He was on his way home when he encountered the victim standing in front of her gate. She started flirting with him, told him that he was cute, and invited him upstairs so they could have sex she wanted to have sex with him before her son came home. They went upstairs. The victim started performing oral sex on him, and during the course of doing that, she put her finger in his anus. He [was] not into that. He told her to stop, not to do that. She continued performing oral sex on him, and she did it again. This sparked an argument between him and her He was getting very upset about it. And she was begging him to let her finish [D]uring the course of the dispute that they were having [and the ensuing struggle], she scratched him, and she ran out of the apartment, and he ran out after her." She "was running in the streets screaming that [defendant] tried to rape her" (H: 24-28). Defendant maintained that he did not ejaculate. "He mentioned that he left a headset - - headphones and a Kindle" at the apartment (H; 27). Detective Henry denied that he told defendant (1) to say that "he entered the apartment illegally;" or (2) that "his story would be more believable in other circumstances." Nor did he give defendant "any details corroborating his statement" (H: 92).

Defendant later memorialized his statement at about 12:05 a.m. on June 6, 2014. In it, defendant confirmed the substance of his oral statement but contradicted it to the extent that he now claimed that he encountered the complainant after entering through a door that had been cracked open and going up the stairs. He added that while he intended to burglarize the location, he never had any intention of raping anyone (People's Exhibit number 3A and 3B; H: 89-90). During the brief period between the oral and written statements, Detective Henry did not have any conversations with defendant about the substance of the complainant's statements, but he did tell him about the nature of the allegations. Prior to and during the time that defendant made the written statement, Detective Henry neither threatened nor made any promises to him (H: 29-30; 84-87). After writing his statement, defendant signed it twice because he added more information. Detective Henry "didn't suggest anything to him" about the contents of his statement (H: 95-96).

Defendant made a video statement approximately twelve hours after his written statement, beginning at 12:29 p.m. and ending at approximately 1:04 p.m. (People's Exhibit 4; H: 30; 84). Among other things, he confirmed that Detective Henry gave him Miranda warnings prior to his oral statement; that no one had forced him to make the statements; that everything on his written statement had been in his handwriting; that the two signatures were his, as were any "cross outs;" that Detective Henry did not tell him to "write something here or cross that out." He then confirmed and elaborated on his written statement.

That same day, at approximately 2:15 pm, Detective Henry conducted a line-up involving defendant. The complainant was notified to come to the precinct and "she arrived on her own." She was told that she was coming to view a lineup regarding her case and was escorted to the same interview room where Detective Henry had interviewed defendant. The detective could not recall who placed her in the interview room; when she arrived at the precinct, defendant was in a holding cell. Detective Henry did not recall having any conversation with defendant while he was in the cell (H: 35-37; 88; H1: 108-109). The complainant and defendant would not have been able to see each other because "they are on two different sides of the floor on the second floor. The room is to the right. The cell is to the left." Detective Haffenden was there to make sure that she did not leave the room. However, on cross examination, Detective Henry stated, "I don't know that he was in the room with her. He was on the same side of the building with her." Since Detective Henry was not present, he could not say what, if anything, was discussed with the complainant (H: 35-37; H1: 107). The five fillers in the lineup were obtained by other police officers on Detective Henry's team whereby "they were given a picture of the defendant to go find the fillers" with similar descriptions and similar features to defendant (H: 39; 97).

When the fillers were brought to the precinct, they were dropped off in front of the building, escorted to the second floor and then placed in the cell with defendant. Every filler was seated and wore a white T-shirt and defendant chose the number "4." Detective Henry was trained to eliminate as many sources of suggestiveness in a line up, so he wanted to get individuals who looked similar to defendant in age, height, hair type and weight. At least one other person, filler number 6, and defendant had a full beard (H: 39-41; 99-100). Although the complainant described her assailant as being 28 to 30 years old, filler number 1 was 20 years old, five feet eight inches tall and 195 pounds; filler number 2 was 21 years old, five feet eleven inches tall and 159 pounds; filler 3 was 47 years old, five feet ten inches tall and 175 pounds; filler number 4, defendant, was 24 years old, six feet one inch tall and 190 pounds; filler number 5 was 22 years old, six feet tall and 180 pounds; and filler number 6 was 48 years old, five feet nine inches tall and 170 pounds. Thus, none of the fillers was actually 28 to 30 years old (H1: 106-107; 115-116; People's Exhibits 5 [c-e]).

The complainant would not have been able to see the fillers because the window in the room in which she was seated was around the corner from the front of the building. The complainant read the Lineup Script (People's Exhibit number 5A) and the Lineup Administration Report (People's Exhibit number 5B). After the lineup was arranged, Detective Haffenden brought her into the lineup room. Sergeant Olsen was also present in the room. The complainant viewed the lineup and identified defendant, number 4, by saying, "[t]hat was the guy that broke into my house, a hundred percent" (H: 39-46; H1: 109).

Defendant argues that, without probable cause, he was placed under arrest from the time he met the detectives and was then transported to the precinct. The People counter that he was not placed under arrest until after the complainant identified him from the lineup. They maintain further that there was in fact probable cause to arrest him if indeed the Court determines that he [*4]was arrested when the police encountered him on the street.

"We have rejected as standards for determining when a de facto arrest has taken place the wholly subjective belief of the officer, as well as that of the citizen and looked instead to 'what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position'" (People v. Hicks, 68 NY2d 234, 239-240 [1986]; People v. Yukl, 25 NY2d 585, 589 [1969]).

"Factors to be considered include, (1) the amount of time the defendant spent with the police, (2) whether his freedom of action was restricted in any significant manner, (3) the location and atmosphere under which the defendant was questioned, (4) the degree of cooperation exhibited by the defendant, (5) whether he was apprised of his constitutional rights, and (6) whether the questioning was investigatory or accusatory in nature" (People v. Blake, 177 AD2d 636, 636-637 [2d Dept. 1991], appeal denied 79 NY2d 853 [1992]; People v. Forbes, 182 AD2d 829, 829-830 [2d Dept.], appeal denied 80 NY2d 895 [1992]).

Here, the Court agrees with defendant that there was a de facto arrest when, after having initially been advised that Detective Henry (who had already issued an I-card and wanted flyer for defendant's arrest), wanted to meet with him regarding this investigation, he agreed to do so at a specific street location; that when he actually encountered the detectives hours after the incident, he was instead told within a minute and a half that he "needed to go back" to the precinct "to conduct the investigation; that he "agreed" to enter the detectives' car but was not free to leave the scene; and that he was transported to the precinct twenty to twenty-five minutes later, whereupon he was given Miranda warnings and subjected to questioning. Under the circumstances of this particular case, a reasonable person, innocent of any crime would have thought that an arrest had occurred requiring the existence of probable cause (People v. Jackson, 286 AD2d 688 [2d Dept. 2001]; People v. Freeman, 151 AD2d 967 [4th Dept. 1989]). Contrary to defendant's claim, however, there was probable cause for his arrest.

"In determining probable cause, the standard to be applied is that it must 'appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice'" (compare People v. Vandover, 20 NY3d 235, 237 [2012], quoting People v. Carrasquillo, 54 NY2d 248 [1981]). "Probable cause to arrest exists if the facts and circumstances known to the arresting officer would lead a reasonable person possessing the same expertise as the arresting officer to conclude that it is more probable than not that the suspect has committed or is committing a crime" (People v. Attebery, 223 AD2d 714, 715 [2d Dept.], appeal denied 88 NY2d 844 [1996]).

The People may establish probable cause by relying on circumstantial evidence (People v. Mims, 88 NY2d 99, 114 [1996]). In that regard, the existence of a description of the perpetrator coupled with circumstantial evidence may demonstrate probable cause, which does not require proof beyond a reasonable doubt (People v. Rodriguez, 84 AD3d 500 [1st Dept], lv denied 17 NY3d 861 [2011][probable cause where defendant matched the description of one of three suspects and there was "strong circumstantial evidence linking defendant to one of the other suspects "]; People v. Ketterman, 56 AD3d 323 [1st Dept. 2008], lv denied 12 NY3d 784 [2009][probable cause where "[i]n investigating the nighttime burglary of an office, the police were aware that there was no forced entry, that the office was accessible by punching a code on a [*5]keypad, that defendant knew this code, that defendant had been recently discharged from a job that had included cleaning that particular office, that he had been seen in the building's lobby at 11 p.m. on the night of the burglary, and that he was on parole"]).

Here, the complainant confirmed that neither the Kindle, the Beats headphones nor the letter from the driving school belonged to her. These items just happened to have been recovered inside her apartment at the top of the stairs immediately after the alleged encounter. Based on his conversation with the complainant, Detective Henry was advised that defendant left the building shortly after the complainant allegedly escaped from him and ran out to the street, supporting the inference that whoever left the items, left hurriedly from the premises. The letter bore not just defendant's name, but his telephone number. Upon calling this specific number, the detective was able to confirm that not only did this number belong to defendant but that he was in fact speaking to "Donovan Buyund." The description provided by the complainant generally fit defendant.

Notably, to the extent that the complainant failed to select defendant from the photo array, that would not undermine the probable cause in this case particularly since a review of defendant's photo therein reflects that his hair was fuller on the top and he bore a striking resemblance to filler number 2, the person actually selected by the complainant. Based upon all of these circumstances, there was probable cause to conclude that it was more probable than not that defendant committed the crime. Defendant's reliance on Dunaway v. New York, 442 US 200 (1979) is misplaced. There, unlike the facts in this case, the detective who concluded that a jail inmate's allegations implicating the defendant in an attempted robbery and homicide were not sufficient to obtain a warrant, nonetheless ordered other officers to take him into custody and bring him to the detective.

Defendant first contends that the People's failure to call Detective Haffenden, who was responsible for the complainant prior to her viewing the lineup, left "a crucial gap in testimony regarding what information was provided to Ms. Frazer while she was at the precinct," thus failing to demonstrate the reasonableness of the police conduct (Ades Memorandum at Section IV). He maintains further that distinctions in the age and facial hair rendered this "a lineup of one" (id.).

The People counter that defendant's claims regarding statements to the complainant are speculative and that the fillers were sufficiently similar to support the propriety of the lineup. This Court agrees.

"While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the 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" (People v. Chipp, 75 NY2d 327, 335, cert denied 498 US 833 [1990]). "However, where the People fail to sustain their initial burden, the burden of establishing that the identification was unduly suggestive never shifts to the defendant" (People v. Coleman, 73 AD3d 1200, 1203 [2nd Dept. 2010]). "While the fillers used in a lineup must be sufficiently similar to the defendant [t]here is no requirement that a defendant in a lineup be surrounded by people nearly identical in appearance" (People v. Moore, 118 AD3d 916, 918 [2d [*6]Dept.], lv denied 24 NY3d 1086 [2014]; see also, People v. Matthews, 57 AD3d 1008, 1009 [2d Dept. 2008], lv denied 12 NY3d 785 [2009]).

In this case, the photos of the lineup (People's Exhibit 5c-5e) depict six African American men wearing white T-shirts, each seated holding a card in front of their torsos. While it is true that defendant appears to have the fullest beard, all of the fillers have varying degrees of facial hair. Although numbers 3 and 6 are in their forties, "[a]n age discrepancy between a defendant and the fillers in a lineup, without more, is not sufficient to create a substantial likelihood that the defendant would be singled out for identification" (People v. Jackson, 98 NY2d 555, 559 [2002]) (internal quotations omitted). Thus, contrary to defendant's suggestion "the alleged variations in appearance between the fillers and the defendant [are] not so substantial as to render the lineup impermissibly suggestive" (People v. Reaves, 112 AD3d 746, 747 [2d Dept. 2013], lv denied 22 NY3d 1202 [2014]).

To the extent that defendant speculates that the police conveyed that he was the target of the lineup or that the complainant believed that she was being given "a second chance to pick the right guy," this Court finds no basis to support these claims. Indeed, there is no evidence that the complainant was even told that she had selected the "wrong" person. Further, the record reveals that the complainant was in a separate room from the holding cell where defendant had been held and did not come into contact with either defendant or the fillers. Although it was not clear if Detective Haffenden stayed in the room with the complainant, the record offers that the detective was on the same side of the building with her and there was no evidence that he communicated to her about the location and/or appearance of defendant and the fillers.

Furthermore, prior to her identification of defendant, the complainant read and initialed the lineup script (People's Exhibit number 5A) and the lineup administration report (People's Exhibit number 5 B). That defendant appeared in both the photo array, where he was not identified, and then selected from a lineup a day later "is not a ground for concluding that the procedure was so conducive to the possibility of irreparable misidentification as to require suppression" (People v. Denny, 177 AD2d 589 [2d Dept. 1991]; People v. Carroll, 200 AD2d 630 [2d Dept. 1994]).Accordingly, defendant's motion to suppress the lineup is denied.

As set forth above, and contrary to defendant's contention, there was probable cause for his arrest and his motion to suppress all statements on that basis lacks merit. Furthermore, defendant's motion likewise fails where, as here, the evidence demonstrates that he was advised of his Miranda rights and voluntary waived them prior to making the aforementioned statements (People v. Pinto, 103 AD3d 921 [2d Dept.]; lv denied 22 NY3d 1043 [2013]).

Based upon the foregoing, defendant's Wade/Huntley/Dunaway motion is denied.

This constitutes the Decision and Order of the court.