County Court, Orange County, November 7, 2018

Ozman Law Offices, Walden (Brandon Ozman of counsel), for defendant.

David M. Hoovler, District Attorney, Goshen (Steven E. Goldberg of counsel), for plaintiff.

The defendant Jesus Rotella is charged with nine counts of possessing a sexual performance by a child in violation of section 263.16 of the Penal Law. By decision and order dated October 10, 2018, the defendant was granted a hearing pursuant to CPL 710.60 (4) to determine the admissibility of statements allegedly made by the defendant. A hearing was held on October 22, 2018. Appearing for the People was Assistant District Attorney Steven E. Goldberg, Esq. Appearing for the defendant was Brandon Ozman, Esq. The People called one witness: Investigator Joseph Lofrese of the New York State Police. The defendant did not call any witnesses.

On October 29, 2018, Mr. Ozman submitted a letter memorandum detailing his arguments and citing relevant case law. On October 30, 2018, Mr. Goldberg submitted a memorandum of law detailing his arguments and citing relevant case law. Said submissions were considered by the court.

On January 30, 2018, at approximately 6:30 a.m., Investigator Joseph Lofrese, along with at least six other police officers, executed a search warrant at 21 Satterlee Road, Highland Falls, New York. The officers entered the home with guns drawn and directed the occupants of the residence into the living room area, utilizing a "command voice" in an effort to get the occupants to comply with their directives. During both the entry into the residence and the execution of the search warrant, the officers took steps to ensure their safety, as well as steps designed to maintain the integrity of the scene. The occupants of the residence were not able to move into areas that would compromise the search. According to Investigator Lofrese, the occupants could not interfere with the search, were not under arrest, and were "free to leave." Within approximately 15 minutes of the police entering the home with guns drawn and ordering the occupants into a single room, the defendant was questioned in that same room by Investigator{**62 Misc 3d at 441} Lofrese. Throughout the interview, the defendant never asked if he could leave the residence and never asked for an attorney.

At no time prior to Investigator Lofrese's questions was the defendant Mirandized. Further, the defendant never was advised that he could leave either the residence or the room where he was sequestered by the police during the execution of the search warrant. Law enforcement personnel were walking throughout the house, executing the search warrant while the Investigator was interviewing the defendant. The defendant identified that he lived in the house and specified which room he resided in, indicating he was the only person who resided in that room. He also offered an explanation for why he did not reside with his wife. The Investigator asked about the electronic devices in the defendant's room, including who owned them and whether the devices were password protected. The defendant was asked about whether he viewed pornography. The defendant acknowledged that he did view pornography and, upon request, he detailed the websites, search engines, search terms, and all information regarding what, when, and the manner in which he downloaded pornography. The defendant also provided an "innocent explanation" for why there may be some underage pornography found on his devices. The defendant was not arrested until after a forensic evaluation of his devices was performed.

The defendant seeks suppression of those statements which were made in response to police questioning prior to being Mirandized. "Miranda warnings are required when a suspect is subject to custodial interrogation" (People v Baggett, 57 AD3d 1093, 1094 [3d Dept 2008], citing People v Paulman, 5 NY3d 122, 129 [2005], and People v Berg, 92 NY2d 701, 704 [1999]). "To determine if a person was in custody, courts must evaluate the circumstances and decide 'whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave' at the time that the statement was made" (People v Baggett, 57 AD3d 1093, 1094 [3d Dept 2008], quoting People v Paulman, 5 NY3d at 129, citing People v Burry, 52 AD3d 856, 859 [2008], lv dismissed 10 NY3d 956 [2008]). The initial burden is upon the People to prove beyond a reasonable doubt that the defendant's statements were voluntary. (Id.) In the matter sub judice, the People are required to provide that the defendant "was not subjected to custodial interrogation {**62 Misc 3d at 442}before [*3]Miranda warnings were administered" (People v Baggett, 57 AD3d 1093, 1094 [3d Dept 2008]). The People have utterly failed to meet their burden.

The hearing testimony established that at least seven police officers entered the defendant's home at approximately 6:30 a.m. with their guns drawn. Further, the police officers used a "command voice" to order the defendant into one room of the home, where he was sequestered with the other occupant of the home. While the Investigator testified that the defendant was "free to leave," and the prosecutor argues that a "reasonable person innocent of any wrongdoing" would have believed he was free to leave, those arguments are not supported by the facts elicited at the hearing. In one breath, the prosecutor argues that the officers' aggressive actions were justified to ensure their safety, as well as to maintain the integrity of the scene. In the next breath, he claims that if the defendant was an innocent person, he would have felt free to leave. The testimony reveals that the defendant was not free to leave the room to walk around his home. To have permitted the defendant to do so would have impaired the integrity of the search. The credible evidence and the reasonable inferences that are drawn from that evidence demonstrate that a reasonable person innocent of any wrongdoing would not have believed he was free to leave the home.

The Investigator began questioning the defendant within 15 minutes of numerous police officers entering the home with guns drawn and sequestering the occupants into a single room by ordering them to do so in a command voice. Defendant's movements were limited in scope by the very nature of numerous armed police officers executing the search warrant. Having their guns drawn upon entry, maintaining those weapons during the search, utilizing a command voice in gaining the occupants' compliance, and sequestering the occupants in a single area to limit their movements all are justified to ensure the safety of the officers, as well as to maintain the integrity of the location being searched. However, those same actions also have a bearing on whether the occupants of the residence would have reasonably believed they were free to leave. Based upon the facts and circumstances presented herein, including the overwhelming police presence, a "reasonable, innocent person would not have felt free to leave at the time that defendant" was questioned by the police (People v Baggett, 57 AD3d 1093, 1094 [3d Dept 2008]). Defendant's interrogation occurred during{**62 Misc 3d at 443} a search under authority of a search warrant, by police officers who had drawn their guns. "Obviously, defendant was in custody, his will to resist was affected and there was compulsion to speak. Clearly, under these circumstances, defendant was entitled to the Miranda warnings before being questioned" (People v Tolentino, 40 AD2d 596, 596 [1st Dept 1972], citing People v Phinney, 22 NY2d 288, 291 [1968]; People v Shivers, 21 NY2d 118 [1967]).

There are several categories of statements this court must consider. First, there was pedigree information obtained related to where the defendant lived, including the specific room in which he resided. This statement was properly asked in order to obtain the pedigree of the defendant. It is well settled that pedigree information "is not subject to suppression" even though it was obtained prior to the defendant being Mirandized. (People v Acevedo, 258 AD2d 140, 143 [2d Dept 1999], lv denied 94 NY2d 819 [1999].) Second, while the questions related to the ownership of the electronic devices could be deemed administrative in nature, the prosecutor failed to elicit testimony that the purpose of those questions was to ensure that those items were [*4]returned to the proper owner. Third, all statements related to the passwords and Internet searches performed on any devices clearly were the product of a custodial interrogation. Accordingly, the defendant's motion to suppress the defendant's statements made after pedigree information was obtained in response to Investigator Lofrese's questioning is granted (see People v Bastian, 294 AD2d 882 [4th Dept 2002]; People v Yukl, 25 NY2d 585 [1969]; People v Hall, 125 AD2d 698 [2d Dept 1986]; People v Baggett, 57 AD3d 1093 [3d Dept 2008]; People v Tolentino, 40 AD2d 596 [1st Dept 1972]; People v Marrow, 301 AD2d 673 [3d Dept 2003]; People v Flowers, 59 AD3d 1141 [4th Dept 2009]; People v Hardy, 5 AD3d 792 [2d Dept 2004]).