A Mapp/Huntley/Dunaway/Wade hearing was held before this Court on April 19, 2022, May 3, 2022, and June 9, 2022. The People called five witnesses at the hearing: Police Officer Andre Perez, Sergeant Charles Dever, Detective Carmelo Stracuzzi, Detective Michael Perez, and Detective Mark Santiago. 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 July 1, 2020, Sergeant Charles Dever, a detective with the 110th Precinct Detective Squad, began investigating a fatal shooting that took place the previous night near the corner of 41st Avenue and Warren Street in Queens. While there were no eyewitnesses to the shooting, Sergeant Dever and several other officers recovered surveillance video of the shooting from several nearby houses. The video depicted two individuals chasing Dante Santillan, the victim of the shooting. The first individual, later identified as defendant Joshua Petillo, was wearing a blue durag, a white t-shirt, gray sweatpants, and beige workboots. The second individual, later identified as defendant Kevin Guerra, wore a camouflage hoodie, dark shorts, and white socks with black flip-flops. The videos showed defendants exit a dark SUV and chase the victim on foot. Defendant Petillo then extended his arm and shot the victim with a handgun.

Sergeant Dever learned that, approximately forty minutes prior to the shooting, there was a fight, which involved the victim's brother, at a deli ten blocks away from the location of the shooting. In surveillance video obtained by the police, Kevin Guerra was observed at the deli forty minutes prior to the shooting and ten minutes after the shooting, while Joshua Petillo was observed at the deli ten minutes after the shooting. The clothing of both defendants was identical to the clothing they were wearing in the surveillance video of the shooting. In addition, the video from the deli showed the defendants exiting a dark SUV.

On July 6, 2020, Sergeant Dever, accompanied by Detective Mark Santiago of the 110th Precinct Detective Squad, met with a confidential informant (hereinafter referred to as "Witness A") to try and identify individuals who were involved in the fight at the deli on June 30. Sergeant Dever showed Witness A several still images, which were obtained from the surveillance video, of individuals at the deli. Witness A said they recognized defendant Guerra, but refused to elaborate any further. Based on the information obtained from this interview, Sergeant Dever created a photo array featuring defendant Guerra.

On July 14, 2020, Sergeant Dever asked Detective Andre Perez to administer the photo array featuring defendant to Witness A. Detective Perez received no information or details about the case and did not know who the suspects were. Sergeant Dever provided him with an envelope containing the photo array, an instruction sheet, and a list of standard follow-up questions. With nobody else present, Detective Perez met with Witness A in the 110th Precinct Detective Squad interview room, read them the instructions, and then showed them the photo array. Witness A unequivocally identified defendant Guerra and stated that they recognized him from "the fight at the deli."

Based on the photo array identification and the surveillance videos, the 110th Precinct Detective Squad issued an investigation card ("I-Card") for Kevin Guerra which indicated that there was probable cause to arrest him in relation to the homicide case.

Defendant Guerra was arrested on August 7, 2020 by Detective Mark Santiago of the Queens Gang Squad. Prior to that time, Detective Santiago had received the I-Card issued by the 110th Precinct for defendant and had spoken with Sergeant Dever about the case to confirm that probable cause existed to arrest defendant. At approximately 4:30 p.m. on August 7, while he was conducting surveillance outside a deli in Queens that defendant was known to frequent, Detective Santiago saw defendant in the front passenger seat of a car. He recognized defendant from social media monitoring, as well as from his review of the deli and shooting surveillance videos. After the driver exited the vehicle and entered the deli, Detective Santiago and other officers approached the car and noticed that defendant, who was wearing the same sunglasses that he had on during the surveillance videos, was looking at a cell phone. They identified [*2]themselves as police and Detective Santiago told defendant to place the phone on the dashboard. He then pulled defendant out of the car, handcuffed him, and, due to the nature of the homicide investigation, searched defendant's pockets for "[his safety] and the safety of others." A flip phone, cocaine, and an amount of United States currency were recovered from defendant's pockets.

Defendant was brought to the precinct interview room later that day at around 10:30 p.m. Sergeant Dever and Detective Adam Manson asked defendant a series of questions, mainly about his employment status, without administering Miranda warnings. After a few minutes, defendant Guerra asked them if he was required to answer their questions. Sergeant Dever responded: "obviously it's better to answer questions so we know."

Defendant then said: "Like I have a lawyer. I have my number in the phone. I was wondering if maybe we could call him." When Sergeant Dever asked if that was what defendant wanted, he answered "Yeah. I have it. But if you want, I could listen to you first really quick." Sergeant Dever then read the Miranda warnings to defendant. Defendant stated that he understood his rights, but also said: "Let's say I don't want to answer all your questions. Maybe I'll listen to it and maybe some questions I'll answer it." Sergeant Dever then asked defendant if he was willing to answer questions and he responded "Yes." The detectives proceeded to question defendant for several minutes, with defendant stating at one point: "We could keep going because I want to know more." When they informed defendant that they had obtained surveillance video, defendant offered: "I'll call my lawyer and we'll do a discovery packet." However, at approximately 10:47 p.m., defendant told the detectives again that he wanted his lawyer and they stopped questioning him.

A. Legality of Defendant's Arrest

The police have probable cause to arrest an individual when they have "information 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 Guthrie, 25 NY3d 130, 133 [2015]; 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]. A "witness's identification of [a] defendant at a photographic array furnishe[s] probable cause for his arrest." People v Ballinger, 62 AD3d 895 [2d Dept 2009], lv denied 13 NY3d 794 [2009]; People v Pena, 95 AD3d 541 [1st Dept 2012]; People v Walton, 309 AD2d 956 [2d Dept 2003].

Considering the totality of the circumstances (People v Geddes, 171 AD3d 1210 [2d Dept 2019], lv denied 33 NY3d 1069 [2019]), the photo array identification of defendant and the defendant's appearance in the deli and shooting surveillance videos, along with the "circumstantial evidence linking defendant to the scene of the crime," established probable cause for his arrest. People v Johnson, 195 AD3d 526, 526 [1st Dept 2021], lv denied 37 NY3d 1097 [2021]; see also People v Tyler, 201 AD3d 1371, 1372 [4th Dept 2022], lv denied 38 NY3d 1010 [2022]; People v Jackson, 168 AD3d 473, 473-74 [1st Dept 2019].

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]. In this case, the 110th Precinct Detective Squad issued an I-Card informing Detective Santiago, who eventually arrested defendant, that probable cause existed to arrest him in relation to a homicide. Moreover, Sergeant Dever spoke with Detective Santiago prior to August 7, 2020 to confirm that there was probable cause to arrest defendant. It should also be noted that Detective Santiago personally reviewed the surveillance video from the shooting and the deli. This was sufficient to establish that the arresting officer acted with probable cause in arresting defendant. People v Mcullin, 201 AD3d 574, 575 [1st Dept 2022], lv denied 38 NY3d 1009 [2022]; People v Wayman, 188 AD3d 538, 539 [1st Dept 2020], lv denied 36 NY3d 1124 [2021]; see also People v Hightower, 176 AD3d 865 [2d Dept 2019]. Accordingly, the Court concludes that defendant's arrest was valid.

B. Suppression of Statements

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]. 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].

However, if the defendant unequivocally requests the assistance of counsel, the police may not question the defendant outside the presence of counsel. People v Dawson, 38 NY3d 1055 [2022]. Whether such a request is unequivocal "is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant." Id. at 1056; People v Porter, 9 NY3d 966 [2007]. The Court must employ an objective standard in evaluating a defendant's statements, namely whether a "reasonable police officer should have understood that [the defendant] was requesting an attorney." People v Jones, 21 AD3d 429, 429 [2d Dept 2005]; People v Jemmott, 116 AD3d 1244, 1246-47 [3d Dept 2014].

While statements such as "I think I need a lawyer" (People v Bethea, 159 AD3d 710, 711-12 [2d Dept 2018]) and "I want to talk to an attorney" (People v Roman, 175 AD3d 1198, 1199 [1st Dept 2019]) should generally be regarded as unequivocal requests for counsel, notifications that counsel exists (People v Henry, 133 AD3d 1085 [3d Dept 2015]), suggestions that the defendant might want to call an attorney (Bowman, 194 AD3d 1123, 1128 [3d Dept 2021), "forewarning[s] of a possible, contingent desire to confer with counsel" (People v Higgins, 124 AD3d 929, 931 [3d Dept 2015]), "hypothetical request[s] for counsel" (People v Meadows, 180 AD3d 1244, 1245 [3d Dept 2020], lv denied 35 NY3d 994 [2020]), or inquiries as to whether the defendant should have brought an attorney (People v Fiorino, 130 AD3d 1376 [3d Dept 2015]) are not unequivocal assertions of a defendant's right to counsel.

However, even where the police have administered Miranda warnings to a defendant, those warnings are constitutionally infirm where police conduct "effectively vitiate[s] or at least [*3]neutralize[s] the effect of the Miranda warnings." People v Dunbar, 24 NY3d 304, 316 [2014]. Thus, statements by the police that contradict the Miranda warnings, either expressly or subtly, will render the Miranda warnings invalid. People v Rutledge, 25 NY3d 1082 [2015] [finding defendant's statement subject to suppression where police urged defendant to speak to police and told defendant that such cooperation could be beneficial]; Dunbar, 24 NY3d at 316 ["the interrogators implied that these defendants' words would be used to help them, thus undoing the heart of the warning that anything they said could and would be used against them"]; People v Marrero, 199 AD3d 1471 [4th Dept 2021], lv denied, 38 NY3d 929 [2022] [Miranda warnings deemed ineffective due to detective's statement that it would be beneficial for defendant to provide an explanation for the crime]; People v Alfonso, 142 AD3d 1180 [2d Dept 2016], lv denied 29 NY3d 946 [2017] [detective's statements that speaking to police could help defendant rendered Miranda warnings ineffective]; People v Rivera, 128 AD3d 1100 [2d Dept 2015], lv denied 26 NY3d 971 [2015] [statement by detective implying that defendant should "set forth his version of events" rendered Miranda warnings inadequate]. However, Miranda warnings are not rendered ineffective simply because the police request that the defendant tell his "side of the story." People v Muller, 155 AD3d 1091 [3d Dept 2017], lv denied 30 NY3d 1118 [2018]; People v Jemes, 132 AD3d 1361 [4th Dept 2015], lv denied 26 NY3d 1110 [2016].

While the Court finds that the initial exchange between defendant and the detectives at the precinct constituted "mere small talk" (People v Dorvil, 175 AD3d 708 [2d Dept 2019]; People v Vieou, 107 AD3d 1052 [3d Dept 2013]), the remainder of the defendant's statement, beginning with Sergeant Dever's statement that "obviously it's better to answer questions," must be suppressed. That statement, a response to defendant's inquiry about whether or not he was required to answer questions, "effectively vitiated or at least neutralized the effect of the subsequently-delivered Miranda warnings." Dunbar, 24 NY3d at 316. At that time, defendant had been arrested and was in police custody. Under these circumstances, by implying to defendant that speaking to the detectives could benefit him, the detectives "contradicted the later warning that [he] had the right to remain silent" and "un[did] the heart of the warning that anything [he] said could and would be used against [him]." Id.; Alfonso, 142 AD3d at 1181.

In addition, the Court finds that defendant unequivocally invoked his right to counsel when he told the detectives: "I have a lawyer. I have my number in the phone. I was wondering if maybe we could call him." When Sergeant Dever asked him if that's what he wanted, he replied: "Yeah." Thus, defendant told the detectives expressly that he had a lawyer and said that he wanted to call him. His use of the word "maybe" does not, without more, render his request equivocal. See, e.g., People v Harris, 177 AD3d 1199, 1203-1204 [3d Dept 2019]; Jemmott, 116 AD3d at 1246; People v Jones, 21 AD3d 429 [2d Dept 2005]. Although defendant said he was willing to listen to the detectives' questions, under all the circumstances (People v Glover, 87 NY2d 838, 839 [1995]), including the fact that defendant had been arrested, was in police custody, and had just been told by the police that it would be better for him to answer questions, the detectives should have "under[stood] [defendant's] statement to be a request for an attorney." People v Carrino, 134 AD3d 946, 949 [2d Dept 2015]. Once defendant had requested counsel, any subsequent, non-spontaneous statements or waivers of Miranda rights made in the absence of counsel must be suppressed. People v Esposito, 68 NY2d 961 [1986]; People v Cunningham, 49 NY2d 203, 210 [1980]; People v Nieves, 183 AD2d 854 [2d Dept 1992]; People v Esquillin, 143 AD2d 766 [2d Dept 1988]. As a result, the statements made by defendant after his [*4]invocation of counsel are hereby suppressed.

C. Suppression of Identification Evidence

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]. A photo array is unduly suggestive if "some feature or characteristic of one of the depicted individuals is so unique or distinctive that it draws the viewer's attention to that photograph, thereby indicating that the police have selected that particular individual." People v Bowman, 194 AD3d 1123, 1126 [3d Dept 2021], lv denied 37 NY3d 963 [2021].

While the various persons included in a photo array must be sufficiently similar in appearance to the defendant (People v Lago, 60 AD3d 784 [2d Dept 2009]), there is no requirement that they be "nearly identical in appearance" to the defendant. People v Chipp, 75 NY2d 327, 336 [1990]; see also People v Staton, 28 NY3d 1160 [2017] [photo array was proper although defendant was older than other fillers]; People v Linear, 200 AD3d 1498 [3d Dept 2021], lv denied 38 NY3d 951 [2022] [photo array was proper even though defendant was the only bald person featured]; People v Marryshow, 162 AD3d 1313 [3d Dept 2018] [photo array was not suggestive despite differing skin tones of the persons featured]; People v Quintana, 159 AD3d 1122 [3d Dept 2018] [photo array was not unduly suggestive even though defendant's neck tattoo was partially visible]. In addition, it is well settled that a photo array identification is not rendered constitutionally invalid simply because the identification is made by a confidential informant. See, e.g., People v Winters, 196 AD3d 847 [3d Dept 2021], lv denied 37 NY3d 1030 [2021]; People v Quintana, 159 AD3d 1122, 1126 [3d Dept 2018]; People v Casanova, 152 AD3d 875, 877 [3d Dept 2017]; People v McDonald, 110 AD3d 1490, 1490 [4th Dept 2013]; People v Moshier, 110 AD3d 832, 832 [2d Dept 2013]; People v Cruz, 89 AD3d 1464 [4th Dept 2011].

The Court concludes that the photo array procedure was not unduly suggestive, as "nothing about defendant's [appearance] was likely to unduly draw the viewer's attention to his photo or indicate that he was the perpetrator of the charged crimes." People v Serrano, 173 AD3d 1484, 1487 [3d Dept 2019]. The photo array displayed to Witness A featured individuals similar in age and general physical characteristics to those of the defendant and was not exhibited to Witness A in a suggestive manner. See People v Richardson, 200 AD3d 984 [2d Dept 2021], lv denied 38 NY3d 930 [2022]; People v Bell, 188 AD3d 904 [2d Dept 2020], lv denied 36 NY3d 1049 [2021]. This is especially so since the detective who conducted the photo array procedure had no information concerning details or the suspects of the investigation. See People v Pleasant, 149 AD3d 1257 [3d Dept 2017]. Accordingly, since the photo array procedure was not unduly suggestive or likely to taint the witness's identification testimony, the Court declines to suppress the identification testimony.

D. Suppression of Physical Evidence

Although the Court of Appeals has held that "[a]ll warrantless searches presumptively [*5]are unreasonable per se" (People v Jimenez, 22 NY3d 717, 721 [2014]), the Court has also long instructed that "[it] is, of course, lawful to search a person incident to his arrest." People v Perel, 34 NY2d 462, 466 [1974]; People v Troiano, 35 NY2d 476, 478 [1974] ["so long as an arrest is lawful, the consequent exposure to search is inevitable"]; People v Weintraub, 35 NY2d 351, 354 [1974]. Thus, as long as police have probable cause to arrest the defendant, a search of the defendant's person incident to that arrest is permissible. People v Julien, 201 AD3d 948, 950 [2d Dept 2022], lv denied 38 NY3d 951 [2022]; People v Harlow, 195 AD3d 1505, 1507 [4th Dept 2021], lv denied 37 NY3d 1027 [2021]; People v Foster, 153 AD3d 853, 854 [2d Dept 2017].

While the scope of such a search is not unlimited and "must be limited to the arrestee's person and the area from within which he might gain possession of a weapon or destructible evidence" (People v Blasich, 73 NY2d 673, 678 [1989]; People v Knapp, 52 NY2d 689, 694-95 [1981] [the law allows a "limited search of the arrestee's person and the area within his immediate control to take place then and there"]; Weintraub, 35 NY2d at 354 ["The authority to search being clear, it includes those personal effects of the arrestee that are 'ready to hand'"]), a search of defendant's pockets is generally permitted. People v Geddes-Kelly, 163 AD3d 716 [2d Dept 2018]; People v Inge, 90 AD3d 675, 676 [2d Dept 2011]; People v Leasure, 59 AD3d 639, 639 [2d Dept 2009]. An additional factor to be considered is whether the items seized incident to arrest were in plain view or were discovered by the police due to "rummaging" or "independent investigative inquiry." Knapp, 52 NY2d at 695; People v Payne, 233 AD2d 787, 787-88 [3d Dept 1996].

In this case, the Court has already found that probable cause existed to arrest defendant and that the arrest was lawful. Before he even ordered defendant out of the car, Detective Santiago noticed defendant holding a cell phone in the front passenger seat. The cell phone was in plain view. Detective Santiago did not rummage through the vehicle, open any closed compartments or containers, or search under the seat. Rather, he seized, incident to a lawful arrest, a phone in open view that had, just seconds before, been in defendant's hands. The other items seized (i.e., the flip-phone, cocaine, and money) were lawfully obtained through a search of defendant's pockets incident to arrest. Geddes-Kelly, 163 AD3d at 717. Therefore, the physical evidence obtained from defendant is not subject to suppression.

Finally, the Court notes that defendant's cell phone would also be admissible under the automobile exception to the warrant requirement. It is well settled that, where the police "have validly arrested an occupant of an automobile, and they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered they may contemporaneously search the passenger compartment" of the vehicle. People v Blasich, 73 NY2d 673, 678-79 [1989]; People v Yancy, 86 NY2d 239 [1995]; People v Galak, 81 NY2d 463 [1993]; People v Green, 100 AD3d 654 [2d Dept 2012], lv denied 20 NY3d 1011 [2013]; People v Henderson, 57 AD3d 562 [2d Dept 2008], lv denied 12 NY3d 925 [2009]. Here, the police had probable cause to arrest defendant in relation to the shooting homicide and thus had ample reason to believe that the automobile contained evidence related to the crime (i.e., defendant's cell phone or the firearm used to shoot the decedent). The fact that defendant may have been handcuffed at the time the phone was seized does not affect the analysis because the automobile exception, as the Appellate Division has noted, allows a search of the car even if the defendant has been removed from the car and taken into police custody. People v Dixon, 107 AD3d 530 [1st Dept 2013], lv denied 21 NY3d 1041 [2013]; Green, 100 AD3d at 655-656; People v Myers, 303 AD2d 139 [2d Dept 2003], lv denied 100 NY2d 585 [*6][2003]. In any event, the search performed by Detective Santiago in seizing a cell phone from the dashboard was minimal at best. The cell phone, as noted above, was in plain view and the detective did not search any closed containers or under the seats. For these reasons, the police properly seized defendant's cell phone pursuant to the automobile exception to the warrant requirement.

Accordingly, the defendant's motion to suppress statements is granted in part and denied in part, and his motions to suppress 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 attorney for the defendant and to the District Attorney.