For the reasons that follow, defendant's motion to suppress a firearm and statements is granted in part and denied in part.

Defendant is charged with Assault in the Second and Third Degrees (PL §§ 120.05[2], 120.00[1]), Criminal Possession of a Weapon in the Second Degree (PL §§ 265.03[3], 265.03[1][b]), Endangering the Welfare of a Child (PL § 260.10[1]) and related crimes. These charges arise out of two incidents that allegedly occurred on the evening of April 21, 2018 on Intervale Avenue in Bronx County. Specifically, the People allege that at approximately 9:00 pm that evening, in front of 1102 Intervale Avenue, defendant kicked Ebony Brasier and then struck her in the eye with a cell phone in front of their five-year old daughter and Brasier's two other children, causing physical injury to Brasier. The People also allege that at approximately 9:55 pm that same evening, defendant unlawfully possessed a loaded, operable firearm in front of 1103 Intervale Avenue. On October 9, 2018, the Honorable Judith Lieb ordered a Mapp/Huntley/Dunaway hearing, which this court conducted beginning on September 18, 2019. The People called two witnesses, Police Officers Lawrice Crawford and Vincent Cuccia, and introduced into evidence defendant's videotaped statement to Crawford and a detective. The defense cross-examined the witnesses but did not introduce any evidence. I found the witnesses credible and credit their testimony. Based on the evidence at the hearing, I make the following findings of fact and conclusions of law.

Officer Crawford has been a New York City police officer for six years and is currently assigned to the Bronx Special Victims Squad. On August 21, 2018, she was assigned to the 41 Precinct in the Bronx, assigned to anti-crime with her partner, Officer Czech. Their tour was from 4:00 pm to just after midnight, and they were in plain clothes in an unmarked car (H 30-32, 55).^[FN1] At about 9:55 pm, she heard a radio run for a man with a firearm at 1103 Intervale Avenue. [*2]Although Crawford told ADA Timothy Bang the next day that the radio run was for a male black with a firearm (H 121-22, 154), she testified at the hearing that the description she heard on the radio run was for "a male black with a blue hoody, blue sweatpants" (H 47-48).

Crawford and Czech arrived at 1103 Intervale Avenue a few seconds after receiving the radio run (H 48, 51). They saw "people outside of the location yelling." Then Crawford saw defendant, who she testified "fit the description" of the person described in the radio run, walking away from the location. Crawford stepped out of the police car as Czech continued to drive, and they followed defendant. Defendant, who appeared nervous to Crawford, turned around, faced Crawford and began to run towards her. Crawford "ran after him" for about 30 seconds and took him to the ground (H 49-52). Crawford testified, "I don't think [defendant] knew I was a police officer" (H 50).

After defendant was on the ground, he flailed his arms and turned his body. As Crawford was trying to handcuff him, defendant started putting his leg towards his chest. Crawford, Officer Ramirez and Officer Dzaverovic tried to hold down defendant's leg and Crawford felt along defendant's waistband. She felt a hard object and Ramirez pulled out a firearm, which he handed to Dzaverovic, who handed it to Crawford (H 51-53). The object was a loaded .38 caliber revolver, which Crawford held onto and took to the 41 Precinct and vouchered (H 53-54). Defendant was arrested and taken to the 41 Precinct (H 54). The time of his arrest was 9:57 pm (H 105).

At about 1:55 am, Crawford was telling defendant, who was in the cells, that she was going to take him from there to the interrogation room, when he made a statement. Crawford was not armed at that time, she had not asked defendant any questions or given him Miranda warnings before he made the statement and he had not asked for a lawyer. Defendant asked Crawford, "Was the gun loaded?" (H 94-97, 104, 105). Defendant had been in custody for approximately four hours at that point (H 105).^[FN2]

Defendant also made statements to Crawford and Detective Diaz in the detective squad interrogation room; those statements were videotaped and received in evidence as People's Exhibit 2 (H 54-55, 58-61,).^[FN3] During this interview, which began at approximately 2:13 am, Diaz asked defendant some pedigree questions ^[FN4] and then advised him of his Miranda rights. Defendant said he understood each of his rights and that he was willing to answer questions. Diaz then asked defendant what happened earlier in the evening. Defendant claimed, in sum and substance, that he had an argument with his daughter's mother that began when he learned that [*3]she was having a relationship with someone else even though defendant was living with her. Defendant denied having put his hands on her. Diaz eventually asked defendant what happened after "these guys assaulted you for their reasons," and defendant told him to see the video. When Diaz then told defendant that he wanted to hear it from him, defendant said "no," he wanted to see his lawyer and did not want to talk anymore. Diaz said that Crawford would take defendant downstairs, but they would let defendant finish his water, since he could not bring it with him. Defendant asked if he could have his phone call, and Diaz said that Crawford would give him a phone call downstairs. Defendant then started talking, saying, among other things, that his phone had gone missing. Diaz replied that defendant had requested a lawyer, and once he did then all conversation had to cease. Diaz said the officers would step outside and leave defendant to finish his water, which he could not take downstairs. Defendant said he was ready to go.

The officers exited and then Diaz and Crawford returned shortly afterwards. As Crawford was attempting to remove the handcuffs from the pole they were locked on (PX 2, H 103), defendant said to her, without any prompting, "You're pretty fast by the way." Crawford said, "I sure am." Defendant repeated, "You're pretty fast. I was going to ghost you."^[FN5] Crawford said something to defendant, defendant said something to her, and then Crawford said, "You're lucky you didn't reach."^[FN6] Defendant asked what Crawford had said, and then said, "Huh? I'm lucky that you didn't reach?" After defendant made a couple of more statements, Diaz said, "You asked for your lawyer, brother. That's it." Crawford also said, "That's it." Diaz said, "From this point, we can't, we can't converse." Defendant said, "Oh, alright." As he was being led out of the interrogation room, defendant said something about the appearance of his face.^[FN7]

Crawford took defendant back to the cell area and put him into a cell. At about 3:00 am, as she was giving defendant directions about fingerprinting him, defendant asked, "The gun had bullets? You run fast. I had no time to get rid of anything"(H 98-100, 101, 102).

Police Officer Vincent Cuccia has been a New York City police officer for about three and one-half years and has been assigned to the 41 Precinct for his entire police career (H 155-56). Although he is currently a Neighborhood Coordination Officer, he was a patrol officer on April 21, 2018 (H 156-57). Cuccia worked two shifts that day, one beginning at 7:00 am and a second beginning at 4:00 pm (H 157). His partner was Officer Londono and they were in uniform in a marked police car (H 158). At 8:53 pm, they responded to a report of an assault in progress — specifically, that a mother and daughter were arguing and that the daughter had hit the mother — at 1122 Intervale Avenue in the Bronx (H 158-59, 161-62, 195-96, 220). When they arrived there, they found out that the correct address was actually a bodega at 1102 Intervale Avenue. They arrived at the bodega within minutes to find "[a] little bit of chaos." [*4]Approximately five to eight people were "standing around" and the victim, Ebony Brazier, was crying and had bruising and swelling to her eye (H 162, 166, 196-97, 203, 204, 207).^[FN8]

Cuccia spoke with Brazier, who told her that her boyfriend, whom she named as Paulin Utshudi, hit her (H 167, 199). The officers took her to the ambulance, which was at 673 Dawson Street, and took a report (H 167-68, 197, 198).^[FN9] At that point, the officers received another call, which was "a firearm job" (H 168). It is unclear what Cuccia did then. On direct examination, he testified that after ensuring that Ms Brazier was safe and secure inside the ambulance, he and his partner went back to the address on Intervale Avenue where they had been first.^[FN10] On cross-examination, however, he testified that after the ambulance left Dawson Street, they returned to the 41 Precinct, where defendant, who had been arrested by the crime team, was already (H 168-69, 198-99). In any event, Cuccia re-arrested defendant at the 41 Precinct at 10:25 pm based on Ms Brazier's domestic violence report (H 169-70, 198-99, 204, 215). After processing the re-arrest, Cuccia went to Lincoln Hospital to speak further with Ms Brazier (H 199).

Back at the 41 Precinct that evening, while defendant was behind the cells and Cuccia was processing his arrest, defendant asked Cuccia, "Is she okay?" Cuccia testified that he was conversing with defendant about something at this point, but did not remember the subject (H 170-72).

Defendant's Arguments

Defendant argues that the People failed to meet their burden of showing that the police acted lawfully, and therefore both the physical evidence and the statements he made after his seizure must be suppressed. Under People v. DeBour, 40 NY2d 210 (1976), "a level three intrusion occurred when Officer Crawford[ ] followed and chased [defendant], acts that required reasonable suspicion" that he was involved in a felony or misdemeanor (Def Mem p 15). But the description of the suspect that she received was insufficiently particular to warrant a seizure, whether that description was a "man with a firearm" or "[a] male black with a blue hoodie, blue sweatpants" (id. pp 16-18). Indeed, the record does not contain sufficient evidence from which the court can conclude that defendant "matched the description" of the "male black" in the radio call (id. pp 24-26). Citing People v. Moore, 6 NY3d 496, 499 (2006), which itself cited Forida v. J.L., 529 US 266 (2000), defendant argues that the radio call must be analyzed as an anonymous [*5]tip, which "cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information — such as information suggestive of criminal behavior — so that the police can test the reliability of the tip" (Def Mem pp 19-20). Crawford's testimony was "bereft of any information" regarding predictive behavior: she did not describe how many people were on the street, what they looked like, what if anything they told her, or even that she saw anyone with a gun, a suspicious bulge "or any motions or gestures indicative of gun possession" (id. p 20).In short,

There was nothing in the testimony to show that the "surrounding circumstances or the nature of the information given in the tip itself provide individualized founded suspicion that [Mr. Utshudi had] engaged in criminal activity." People v. Bilal, 96 N.Y.S.3d 1, 7 (1st Dep't 2019).

Because Crawford "exceeded the degree of intrusion permitted by the circumstances on the scene," the weapon must be suppressed (id. p 30). Defendant's statements at the precinct must also be suppressed as the fruit of that unlawful seizure, because no intervening event broke the causal connection between his arrest and his statements and attenuated the statements from his unlawful arrest (id. pp 30-33).

Finally, defendant argues that the People did not prove that his statements at the precinct were voluntary beyond a reasonable doubt. Defendant's first statement to Crawford was un-Mirandized, "and given the officer's disregard of [his] subsequent invocation of the right to counsel, the Court should not credit [her] testimony that she did not subject [defendant] to questioning or its functional equivalent" before he made it (id. p 36). Defendant's statement made during "a conversation regarding the weapon recovered" after he had been removed from the interrogation room "must be suppressed because that conversation was the functional equivalent of interrogation after [defendant] invoked his right to an attorney" (id.). Finally, the statement to Cuccia must also be suppressed because "it is clear from the nature of the statement, 'Is she okay?', that Officer Cuccia had either questioned [defendant] about the alleged incident underlying the arrest or engaged in the functional equivalent of interrogation" (id. p 37).

The People's Arguments

The People assert that Crawford "had reasonable suspicion that defendant was committing a crime that justified her pursuit" of him (Peo's Mem p 5). They claim that Crawford's observations at the scene "match up directly with all of the information contained in the radio run," that these observations, combined with defendant's flight, provided reasonable suspicion to justify pursuing, stopping, detaining and frisking him, and that when defendant lifted his leg towards his chest Crawford "reasonably suspected that she was in physical danger" (id. p 6). Therefore, the firearm should not be suppressed. Moreover, all of defendant's statements [*6]were voluntary beyond a reasonable doubt. His first statement to Crawford, "was the gun loaded?," was not the product of custodial interrogation. His videotaped statements were Mirandized. As for the statements he made after requesting a lawyer, defendant was the one who initiated the conversation with Crawford and she had not done anything before that which was likely to elicit his statements. Crawford also had not questioned him before he asked, at approximately 3:00 am, whether the gun had bullets, but had merely been giving him instructions about the fingerprinting process. Finally, the People argue that defendant's statement to Cuccia was also spontaneous and not the result of any questioning. The People do not address defendant's attenuation argument.

Resolution of this motion does not require extended analysis. Based on the record before the court, which contains no evidence about who called the police to report "a man with a firearm" on Intervale Avenue, I conclude that what the police received here was an anonymous tip. The description of the suspect in the anonymous tip was vague at best, even if it did contain some generic clothing details. The People introduced no evidence at all that the radio run included any predictive behavior for the "man with a firearm."The People did not have Crawford describe the appearance of any of the people whom she saw "outside of the location yelling" or explain how she concluded that defendant, among all of these individuals, "fit the description" she received on the radio run. Rather than trying to engage defendant to obtain information, however, Crawford and her partner pursued him, she on foot and her partner in an unmarked police car. When defendant turned around and started running towards her, Crawford, who conceded that she did not think he knew she was a police officer, simply took him to the ground and began trying to handcuff him (H 50-51).

"An anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predict information — such as information suggestive of criminal activity — so that the police can test the reliability of the tip [citations omitted]." People v. Moore, 6 NY3d at 499. "An anonymous tip authorizes a police officer to make a common-law inquiry. It does not, without more, provide justification to detain or seize an individual [citations omitted]," People v. Lopez, 63 Misc 3d 1225(A), * 6 (Sup Ct, Kings County 2019) (Cyrulnik, J.). Moreover, "should a citizen run from an officer, such flight, where there is no indication of criminal activity, is an insufficient basis for pursuit by an officer [citation omitted]," People v. Bilal, 170 AD3d at 86. This is particularly true here, where defendant ran towards, rather than away from, Crawford and may not have known that she was a police officer. See Bilal, id. at 87 (suppression should have been granted where, inter alia, defendant was merely with someone else who matched extremely vague, generic description of the suspect, the information police had was not sufficiently indicative of criminal activity on defendant's part and the evidence was insufficient to support conclusion that defendant knew it was police who were approaching him when he fled); People v. Major, 115 AD3d 1, 6 (1st Dept 2014) (hearing court should have suppressed contraband, where defendant did not suddenly change direction upon the sight of police but "walked toward the direction of [the detective] and his patrol car").

Because the People did not establish that Crawford had reasonable suspicion that defendant was committing, had committed or was about to commit a crime, let alone probable cause to believe that he had done so, People v. Moore, 6 NY3d at 498-99, they have failed to [*7]meet their burden of going forward with evidence to prove that she acted lawfully in forcibly seizing him and the firearm. People v. Berrios, 28 NY2d 361, 367 (1971). Accordingly, the firearm must be suppressed.

If the People had addressed defendant's attenuation argument, the court would do so as well. But they do not. Accordingly, all of defendant's statements are suppressed for a Fourth Amendment violation. In light of this result, I need not consider the People's Fifth Amendment arguments.

The foregoing constitutes the decision and order of this court.