A Mapp/Huntley/Dunaway/Wade hearing was held before this Court on June 7, 2022. The People called three witnesses at the hearing: Detective Kimberly Cenizal, Police Officer Robert Sheron, and Police Officer Ivor Alexander. The Court credits each of their testimony. This decision summarizes the testimony below, as the Court's findings of fact, and constitutes the Court's conclusions of law.

On August 5, 2021, at approximately 8:55 a.m., Detective Kimberly Cenizal, observed defendant fire a gun toward an MTA bus near the intersection of 148th Street and Jamaica Avenue. Detective Cenizal, who was off duty at the time, noticed that defendant was wearing black clothing, as well as a red hat and red sneakers. Detective Cenizal followed defendant in her [*2]car as he began walking away from the scene of the shooting. At some point, he turned his back to her and began fidgeting. Detective Cenizal could not discern if defendant had put the gun in his waistband or the backpack. Defendant then crouched down behind a truck outside of Detective Cenizal's view before heading south on 148th street. At the corner of 148th Street and Archer Avenue, a marked police car stopped next to defendant and two officers approached him with their guns drawn. Defendant dropped the backpack and put his hands up. One of the officers tased defendant.

Detective Cenizal picked up the backpack as defendant was being handcuffed and gave it to Officer Athena Poh for safeguarding. Because the police had not located the gun, Detective Cenizal promptly began looking for it. According to Detective Cenizal, it was a "hectic scene" at that point—the street and the sidewalks were filled with cars and people— and the police were unable to close off the scene. The police had also learned that two bystanders on the MTA bus had been shot. With several other officers, Detective Cenizal searched the surrounding sidewalks and streets, as well as under vehicles and in storefronts, for the gun. After approximately ten minutes, Detective Cenizal returned to the scene of the shooting, opened the backpack, and saw a black firearm inside.

Police Officer Robert Sheron of the 103rd Precinct similarly observed defendant fire a gun at the corner of 148th Street and Jamaica Avenue on the morning of August 5, 2021. According to Officer Sheron, defendant was shooting at an individual later identified as Amadu Sow. Officer Sheron then radioed a description of defendant, as well as a report that he was shooting at somebody. Mr. Sow approached Officer Sheron, pointed at defendant down the street, and said: "That's him, that's the guy." Officer Sheron witnessed a marked police car approach defendant and heard the officers tase him. Along with several other officers, he was then tasked with safeguarding the backpack until the evidence collection team arrived to process the firearm. The police recovered a firearm and two magazines from the backpack, as well as spent shell casings at the scene of the shooting. Afterward, witnesses informed Officer Sheron that two people on a bus had been shot.

Police Officer Ivor Alexander, an officer with the 103rd Precinct, was one of the officers who arrested defendant. After being told by an MTA bus driver on Jamaica Avenue that someone had been shot, Officer Alexander heard Officer Sheron's radio call with the details of defendant's appearance and location, as well as the fact that defendant had fired a gun. Officer Alexander and his partner apprehended defendant near the intersection of 148th Street and Archer Avenue. Officer Alexander tased defendant after telling him to get on the ground. Amadu Sow then approached and started speaking to defendant. Mr. Sow said that defendant had tried to shoot him. Although handcuffed and surrounded by several police officers, defendant engaged in conversation with Mr. Sow until the police separated them by putting defendant in a police car.

Defendant was later brought to the hospital to have the taser prongs removed. When he was taken back to the police precinct, two detectives and Officer Alexander met with him. They read Miranda warnings to him before asking him any questions. He agreed to speak with them after acknowledging that he understood his rights. Defendant asked to speak to a lawyer a few minutes into the questioning and the detectives promptly ended the interview.

Conclusions of Law

As an initial matter, the Court finds that defendant's arrest was proper. It is well settled that the police have probable cause to arrest an individual when they have "information [*3]sufficient to support a reasonable belief that an offense has been [committed] or is being committed or that evidence of a crime may be found in a certain place." People v Jones, 202 AD3d 821, 825 [2d Dept 2022]. While mere suspicion or conduct equally susceptible to innocent or culpable interpretation is not sufficient, probable cause does not require proof beyond a reasonable doubt. People v Alexander, 200 AD3d 790 [2d Dept 2021], lv denied 37 NY3d 1159 [2022]; People v Kamenev, 179 AD3d 837 [2d Dept 2020], lv denied 35 NY3d 1027 [2020]. When a police officer witnesses criminal activity, that officer's observations "form the basis for probable cause to arrest." People v Dudden, 138 AD3d 1452, 1453 [4th Dept 2016], lv denied 28 NY3d 929 [2016]; People v Lopes, 204 AD3d 699, 699-700 [2d Dept 2022]; People v Green, 13 AD3d 646 [2d Dept 2004], lv denied 4 NY3d 831 [2005]; People v Thomas, 149 AD2d 745, 746 [2d Dept 1989]; People v McKay, 124 AD2d 828 [2d Dept 1986]; see also People v Khan, 74 Misc 3d 129(A) [App Term, 1st Dept, 1st Jud Dist 2022], lv denied 38 NY3d 1034 [2022].

In this case, Officer Sheron witnessed defendant shooting a gun at another individual on a crowded, public street. Those eyewitness observations were more than sufficient to support a reasonable belief that an offense had been committed. Officer Sheron then informed other officers over the radio of defendant's actions, as well as his appearance and location. Under the fellow officer rule, "an arresting officer is deemed to act with probable cause when making an arrest at the direction of another law enforcement officer who has the requisite probable cause." People v Rosario, 78 NY2d 583, 588 [1991]; People v Mortel, 197 AD3d 196 [2d Dept 2021], lv denied 37 NY3d 1097 [2021]. Here, Officer Alexander arrested defendant, acting upon the information relayed in Officer Sheron's radio call and the information provided by the bus driver (People v Vidro, 148 AD3d 526 [1st Dept 2017], lv denied 29 NY3d 1088 [2017]). Accordingly, the police had probable cause to arrest defendant.

1. Statements Made at the Scene

When a defendant is the subject of a custodial interrogation by the police, it is beyond well-settled that the police must administer Miranda warnings to the defendant. People v Paulman, 5 NY3d 122 [2005]; see also Miranda v Arizona, 384 US 436 [1966]. However, statements by a defendant that are "spontaneous and not the product of custodial interrogation or its functional equivalent" are admissible despite the lack of Miranda warnings. People v Roper, 208 AD2d 571, 571 [2d Dept 1994]; People v Latimer, 75 AD3d 562, 563 [2d Dept 2010]; People v Tyrell, 67 AD3d 827, 828 [2d Dept 2009] ["Volunteered statements are admissible provided the defendant spoke with genuine spontaneity and not the result of inducement, provocation, encouragement or acquiescence"]; People v Hinds, 13 AD3d 554, 554 [2d Dept 2004]. Similarly, statements overheard by the police are generally not subject to suppression unless they are the "product of police activity" (People v Giddens, 161 AD3d 1191, 1193 [2d Dept 2018]) or "attributable to police suggestion, prompting, or other misconduct." People v Eldridge, 213 AD2d 667, 668 [2d Dept 1995].

Here, Amadu Sow, without any prompting or direction by the police, approached defendant and began talking to him. Defendant freely responded to him. Such statements were spontaneous rather than the product of police activity or suggestion. See People v Rada, 177 AD3d 558 [1st Dept 2019], lv denied 34 NY3d 1162 [2020] [arrested defendant's statement to victim was not subject to suppression]; People v Cascio, 79 AD3d 1809, 1811 [4th Dept 2010] ["Defendant was aware of the detective's presence throughout the conversation, and he nevertheless spoke freely and unguardedly"]; People v Cooper, 38 AD3d 678 [2d Dept 2007] [*4][defendant's statement in the presence of police not subject suppression]; People v Pierre, 241 AD2d 559 [2d Dept 1997], appeal denied 91 NY2d 878 [1997] [statement that was overheard by detective was admissible]. Further, at no point did the police pressure or encourage defendant to respond to Mr. Sow. Accordingly, defendant's motion to suppress these statements is denied.

2. Statements Made at Police Precinct

Miranda rights can be waived by the defendant provided that such waiver is made "knowingly, intelligently, and voluntarily." People v Stevens, 203 AD3d 1181 [2d Dept 2022]. Such a waiver is determined "upon an inquiry into the totality of the circumstances surrounding the interrogation, including an evaluation of the defendant's age, experience, education, background, and intelligence." People v Santos, 112 AD3d 757, 758 [2d Dept 2013]. The People bear the burden of establishing, beyond a reasonable doubt, that defendant voluntarily waived those rights. See People v Smith, 199 AD3d 1023 [2d Dept 2021]. However, where a defendant unequivocally requests the assistance of counsel, the police may not question the defendant outside the presence of his attorney. People v Dawson, — NY3d —, 2022 NY Slip Op 02772 [2022].

Here, the detectives read defendant Miranda warnings and he freely agreed to speak with them after acknowledging that he understood his rights. The detectives did not pressure or coerce defendant to waive his rights and there is no evidence that defendant, under all the circumstances, failed to understand the nature of his waiver. After several minutes of freely answering the detectives' questions, defendant stated that he needed a lawyer, and the detectives immediately stopped the questioning. Accordingly, the defendant's statements prior to his invocation of his right to counsel are not subject to suppression.

The United States and New York State Constitutions protect against "[p]olice-arranged identifications, confrontations between a witness and a defendant which have come about at the deliberate direction of the police for the distinct purpose of identifying the perpetrator," that are unduly suggestive. People v Gomez, 60 AD3d 782, 783 [2d Dept 2009]; see also People v Jade, 286 AD2d 688, 690 [2d Dept 2001]. The principal evil to be avoided in such cases is police conduct creating a "substantial likelihood of misidentification." People v James, 128 AD3d 723, 725 [2d Dept 2015], appeal dismissed 26 NY3d 1118 [2016]. However, an accidental or unarranged show-up identification is not unduly suggestive if it results from "mere happenstance" and "the spontaneous encounter was not caused by police conduct or questionable police procedures." People v Rodriguez, 98 AD3d 530, 531-32 [2d Dept 2012], lv denied 19 NY3d 1105 [2012]; People v Brown, 123 AD3d 938 [2d Dept 2014], lv denied 25 NY3d 939 [2015]; Gomez, 60 AD3d at 783.

When a defendant seeks to suppress identification evidence, the People bear the initial burden of "establishing the reasonableness of the police conduct and the lack of any undue suggestiveness." People v Sosa-Marquez, 177 AD3d 1003, 1004 [2d Dept 2019]. Once the People meet this burden, the defendant "bears the ultimate burden of proving that a pretrial identification procedure was unduly suggestive." People v McDonald, 138 AD3d 1027, 1028 [2d Dept 2016].

Here, Amadu Sow, without any prompting or direction by the police, approached [*5]defendant and identified him as the person who shot at him. The police played no part in this identification, and it cannot be attributed to police conduct or questionable police procedures. People v Taylor, 134 AD3d 739, 740 [2d Dept 2015], lv denied 26 NY3d 1150 [2016] ["complainant's identification of the defendant near the scene of the crime was spontaneous, and not the result of a police-arranged confrontation"]; People v Robinson, 121 AD3d 1405, 1408 [3d Dept 2014] ["Where, as here, a complainant flags down a police officer and then points to the attacker on the street, it cannot be said that the initial identification of the defendant was anything other than spontaneous"]; see also People v Dixon, 85 NY2d 218, 223 [1995]. As a result, defendant has failed to meet his burden of showing that the identification was police-arranged or unduly suggestive.

The Court of Appeals has repeatedly held that, under the New York State Constitution, "[a]ll warrantless searches presumptively are unreasonable per se." People v Jimenez, 22 NY3d 717, 721 [2014]. Accordingly, a warrantless search incident to arrest of a defendant's property within his grabbable area will be deemed unreasonable unless it is: (a) contemporaneous with the arrest (People v Anderson, 142 AD3d 713 [2d Dept 2016]; People v Diaz, 107 AD3d 401 [1st Dept 2013]); and (b) justified by the presence of exigent circumstances." People v Gokey, 60 NY2d 309, 312 [1983]; People v Smith, 59 NY2d 454, 458-59 [1983]. The Court of Appeals has identified two interests that may establish exigent circumstances: "the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment." Gokey, 60 NY2d at 312; Jimenez, 22 NY3d at 722. In some instances, the nature of the offense can supply the necessary exigency. Id.; People v Johnson, 59 NY2d 1014 [1983]; People v Williams, 122 AD3d 502 [1st Dept 2014].

To justify the warrantless search of a defendant's bag, the People must establish that the police, at the time of the arrest, had an objectively reasonable belief that the suspect might gain possession of a weapon or be able to destroy evidence in the bag. Anderson, 142 AD3d at 714-715; People v Alvarado, 126 AD3d 803, 805 [2d Dept 2015]. There is no requirement that the bag be "within [the defendant's] immediate reach at the time of the search" for the People to establish the proper exigency. People v Dunbar, 183 AD3d 1263, 1264 [4th Dept 2020], lv denied 35 NY3d 1044 [2020]. Rather, the People need only show that defendant "could have had access to the [bag] when arrested" and that the time between the arrest and search was not significant enough to "dissipate the reasonableness" of conducting such a search. Smith, 59 NY2d at 459; People v Bowden, 87 AD3d 402, 404-05 [1st Dept 2011], appeal dismissed 18 NY3d 980 [2012] [even though defendant was secured, exigency still existed because police had reason to suspect that a gun was in the defendant's bag]. Several courts have found that an exigency existed where, in addition to concern about a weapon, the bag has not been reduced to the exclusive control of the police at the time of the arrest and the location was a crowded, public place. See In re Kenneth S., 27 NY3d 926, 928 [2016]; People v Jimenez, 109 AD3d 764 [1st Dept 2013]; In re Freddy S., 84 AD3d 687, 688 [1st Dept 2011]; People v Estrella, 288 AD2d 133, 134 [1st Dept 2001].

Considering all the evidence (In re Michael H., 161 AD3d 459 [1st Dept 2018]; Freddy S., 84 AD3d at 688), the Court finds that the police properly seized the firearm and magazines [*6]pursuant to a search incident to arrest. Defendant was observed by two police officers firing a gun at a person in a crowded, public area. Defendant still had the backpack at the time he was stopped by police and Detective Cenizal searched the bag approximately ten minutes after he was apprehended. This delay is attributable to several factors, none of which dissipated the reasonableness of the search. First, the police did not know where the gun was and had learned that two bystanders were shot. Second, after retrieving the bag, Detective Cenizal searched for the gun in places where she had observed defendant just moments prior and where she thought defendant might have hidden the gun. Third, the police did not have exclusive control of the scene of the shooting, which was very crowded and "hectic," and there was legitimate concern about evidence being lost or destroyed. Finally, since the police had arrested defendant for firing a gun, an objectively reasonable belief certainly existed that defendant would be armed and pose a danger to the officers and the public. See, e.g., People v Johnson, 86 AD2d 165, 168 [1st Dept 1982], affd 59 NY2d 1014 [1983] ["We should not ignore the highly dangerous and volatile situation with which the police were confronted"].

This is not a case where the defendant was arrested for a nonviolent offense and showed no signs of being armed. See, e.g., Jimenez, 22 NY3d at 459-460 [defendant arrested for trespassing and police had no suspicion that she was armed]; Gokey, 60 NY2d at 313 [defendant arrested for possession of marijuana]; People v Hinton, 148 AD3d 545, 546 [1st Dept 2017] [defendant arrested for criminal possession of forged instrument]; People v Anderson, 142 AD3d 713 [2d Dept 2016] [defendant arrested for burglary and showed no signs he was armed]; People v Thompson, 118 AD3d 922 [2d Dept 2014] [defendant arrested for marijuana possession and showed no signs he was armed]; People v Hendricks, 43 AD3d 361, 363-64 [1st Dept 2007] [defendant arrested for criminal trespass and showed no signs he was armed]. Under all the circumstances, and mindful of the need for the police to be able to take "reasonable measures to assure their [and the public's] safety" (People v Allen, 73 NY2d 378, 380 [1989]), the Court concludes that the firearm and the magazines were properly recovered pursuant to a search incident to arrest.

The defendant has also failed to establish that the shell casings recovered from the scene should be suppressed. Under the plain view doctrine, the police may seize an item without a warrant if: "(a) they are lawfully in a position to observe the item; (b) they have lawful access to the item itself when they seize it; and (c) the incriminating character of the item is immediately apparent." People v Brown, 96 NY2d 80, 89 [2001]; People v John, 27 NY3d 294, 302-303 [2016]. In this case, the police found the shell casings at the intersection of Jamaica Avenue and 148th Street, a public area where the police were lawfully able to observe and access the shell casings. Further, since defendant had been observed firing a gun near that intersection, the "incriminating nature" of the shell casings was "readily apparent." People v Knight, 205 AD3d 928, 930 [2d Dept 2022]; People v Griffin, 188 AD3d 1701 [4th Dept 2020], lv denied 36 NY3d 1050 [2021].

Accordingly, the defendant's motions to suppress statements, identification, and physical evidence are denied.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the [*7]attorney for the defendant and to the District Attorney.