The defendant is charged with Attempted Murder in the Second Degree and other offenses in relation to an incident alleged to have occurred on August 6, 2023. The defendant moves to suppress identification and statement evidence. This court conducted a combined Wade/Dunaway/Huntley hearing on June 23, 2025. The People presented three witnesses at the hearing: Detective Daniel Twohig, Detective Elvis Merizalde, and Detective Christopher O'Connor. The defense did not present any witnesses. After the testimony was concluded, the court heard oral arguments from both sides.

The court makes the following findings of facts and conclusions of law:

Detective Daniel Twohig has been employed by the New York City Police Department (NYPD) for approximately nine years and is currently assigned to the Brooklyn Transit Squad (tr at 9). The court credits Detective Twohig's testimony to the extent set forth herein.

On August 7, 2023, Detective Twohig became involved in an investigation regarding an assault that occurred on August 6, 2023, at a subway station located at 4th Avenue and 25th Street in Brooklyn (tr at 10). As part of his investigation, Detective Twohig spoke to the complainant via phone on August 7, 2023 (tr at 11, 42). The complainant informed him that while the complainant was on a Manhattan-bound train he observed a male and a female fighting (tr at 11). The complainant intervened, and then a physical fight ensued between the complainant and the male (tr at 11). The complainant further stated that the male removed two screwdrivers from a stroller and stabbed him in the face with a screwdriver (tr at 11, 36-37). The detective claimed that he was "able to see" wounds on the complainant's face and ear, but later [*2]testified that he never spoke with the complainant in person (tr at 11-12, 36, 41).

The complainant described the assailant as "a male Hispanic wearing a white shirt" accompanied by "a heavy-set female and multiple children around or under the age of ten years old with a stroller" (tr at 12). He further stated that the male was a stranger (tr at 12).

Detective Twohig also reviewed surveillance footage "from the area" (tr at 12). The surveillance footage was admitted into evidence as People's Exhibit 1 (tr at 14-15). Detective Twohig sent the surveillance footage to the complainant "via text message" on August 7, 2023, "so that [the complainant] could review [it] to see if he identified anybody or recognizes anybody in the video" (tr at 12, 14, 42). According to the detective, he showed the complainant the "entire video" in People's Exhibit 1, which spans 3 minutes and 45 seconds (tr at 15; see People's Exhibit 1). The complainant indicated he recognized the individual in the video "with no shirt" (tr at 16). At the time the detective sent the surveillance footage to the complainant, the detective did not "have any other leads" regarding the assailant and did not know whether the individual depicted in the video was involved in the incident (tr at 12-13). The detective then created a "wanted flyer," which he described as "a picture of the person wanted in the case" (tr at 16, 21).

On August 9, 2023, the complainant sent the detective a text message stating, "this is the person," together with a photo (tr at 16-18, 20). The photo was admitted into evidence as People's Exhibit 2 (tr at 18, 21). The testimony regarding how the complainant came into possession of the photo was inconsistent at best. Initially, the detective claimed that the complainant said "he got it from somebody that was there," but did not state who (tr at 18). Then the detective stated that the complainant told him "that he's not sure who took the photo" (tr at 19). When further pressed, the detective testified that the complainant said he got the photo from "an anonymous source" (tr at 19).

On August 10, 2023, Detective Twohig submitted the photo provided by the complainant as well as still images from the video surveillance to the Facial Identification Section (FIS) (tr at 21-23). The FIS analysis resulted in "a positive hit on a possible match" (tr at 25-26). The detective initially testified that the suspect was an individual known to the department as "Angel Hernandez" and identified that person as the defendant (tr at 26, 39). On cross-examination, when asked about the name Angel Hernandez, the detective indicated that he misspoke and that the defendant's name is "Angel Rodriguez" (tr at 41).

On August 16, 2023, after identifying a suspect in the case, Detective Twohig created a photo array of six photos, "one being the suspect" and then "five other individuals . . . resembling his description, characteristics" (tr at 26). The detective used the following criteria: short hair and "short, low beard facial hair" (tr at 26-27). The photo array and the accompanying paperwork were admitted into evidence as People's Exhibit 4 (tr at 29-30). The subject was placed into the second position in the photo array (tr at 29).

Detective Twohig then called the 66th Precinct Detective Squad and inquired with Detective Grant as to whether someone from the 66th Precinct was available to conduct a double-blind photo array (tr at 28-29). Detective Twohig explained that a double-blind photo array is where he creates the array, and it is shown to the complainant by a detective or officer who does not know the suspect (tr at 29). He elaborated that the "complainant also does not know if the suspect is indeed in the array" (tr at 29). Detective Twohig then sent the photo array to Detective Grant via email (tr at 28).

Detective Twohig later learned that the photo array was administered by Detective [*3]Merizalde at the 66th Precinct and that the complainant selected the person in the second position, which was the defendant, Angel Rodriguez (tr at 28-29). The detective then activated an investigation card (I-card) for probable cause to arrest the defendant, which he described as "an I-card essentially allowing the arrest" of the defendant (tr at 30-31).

Detective Twohig subsequently learned that the defendant was apprehended (tr at 31). He was not present when the defendant was arrested, but testified that "someone from warrants" apprehended the defendant and that Detective O'Connor processed the arrest (tr at 31).

Detective Elvis Merizalde has been employed by the NYPD for approximately 18 years and is currently assigned to the 66th Precinct Detective Squad (tr at 44).

Detective Merizalde testified credibly that on August 16, 2023, he participated in a double-blind photo array procedure, which he described as "a procedure conducted with a [person of interest] and five fillers . . . that look like [the] POI" (tr at 45-46). The photo array was provided to him by Detective Grant of the 66th Precinct, who had been contacted by a detective from Central Robbery (tr at 46). Prior to being asked to conduct the procedure, Detective Merizalde had no involvement in the case and had no knowledge about the investigation (tr at 47). Detective Merizalde did not know the subject of the photo array, nor the subject's number or position in the array (tr at 47).

The detective administered the photo array to the complainant in the interrogation room at the 66th Precinct with no one else present (tr at 48-49). Detective Merizalde, who testified that he speaks fluent Spanish, read the photo array procedure instructions to the complainant in Spanish (tr at 49). The detective advised the complainant that "he got to be a hundred percent that the person is picked" and that the detective "[did not] know who it is" (tr at 49). The detective then showed the complainant the photo array (tr at 49). The complainant selected the person in the second position and informed Detective Merizalde that he recognized the individual as the person who stabbed him in the face with a screwdriver on the train on August 6, 2023 (tr at 51).

After the photo array was administered, Detective Merizalde informed the complainant that he would be contacted by the case detective and the complainant left (tr at 51-52). Detective Merizalde had no further involvement in the investigation (tr at 52).

Detective Christopher O'Connor has been employed by the NYPD for approximately 15 years and is currently assigned to the Brooklyn Transit Squad (tr at 55).

Detective O'Connor testified credibly that on August 25, 2024, he arrested the defendant and once the arrest processing was completed, he interrogated the defendant, together with Officer Restrepo, at the Brooklyn Transit Squad, Transit District 34 (tr at 56-57). A recording of the interview was admitted into evidence as People's Exhibit 5 (tr at 60-61).

Detective O'Connor testified that neither he nor anyone else made any threats or promises to the defendant and that no officer displayed a gun (tr at 57-58). Further, the defendant was offered food and water and an opportunity to use the bathroom (tr at 58).

As reflected in People's Exhibit 5, after obtaining the defendant's pedigree information, Detective O'Connor read the defendant his Miranda warnings (People's Exhibit 5 at 4:38-5:09; tr at 59). The defendant indicated that he understood the Miranda warnings by answering "yes" to [*4]each question (People's Exhibit 5 at 4:38-5:09; tr at 59). In response to the last question, "Now that I've advised you of your rights are you willing to answer questions?" the defendant responded, "Yeah I wanna know what's going on" and proceeded to answer questions from both detectives regarding the incident (People's Exhibit 5 at 5:09-5:14; tr at 59-60).

During the interrogation, the defendant stated that he learned he "got a warrant" and recalled receiving a phone call from a detective approximately seven months prior to his arrest, asking whether he knew "anything about a fight" and informing him that "that warrant's gonna always still be there" (People's Exhibit 5 at 9:50-10:40, 42:25-43:13). Approximately 24 minutes and 20 seconds into the video recording, the defendant told the detectives, "When I got the call I wanted to turn myself in," followed by, "I spoke to a lawyer and they was like 'Yo that's up to you, you gotta take the chance eventually you gotta clear it' " (People's Exhibit 5 at 24:20-24:35). The defendant then continued to speak and the detectives continued to question the defendant (People's Exhibit 5 at 24:35-24:40).

According to Detective O'Connor, the defendant did not request an attorney prior to or during the questioning (tr at 59). Further, with respect to the defendant's statement that he had spoken to a lawyer, the detective testified that the defendant never stated that he wanted "his lawyer" or that he wanted to speak to "his lawyer," nor did the defendant provide any contact information for "his lawyer" (tr at 62).

At a suppression hearing, the People bear the initial burden of showing, by credible evidence, the lawfulness of the police conduct (People v Hernandez, 40 AD3d 777, 778 [2d Dept 2007]; People v Moses, 32 AD3d 866, 868 [2d Dept 2006]; see also People v Wise, 46 NY2d 321, 329 [1978]; People v Whitehurst, 25 NY2d 389, 391 [1969]). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v De Bour, 40 NY2d 210, 222 [1976]). If the People satisfy their initial burden, the defendant "bears the ultimate burden of proving that the evidence should not be used against him" (People v Berrios, 28 NY2d 361, 367 [1971]).

At a Wade hearing, the People have the burden in the first instance to demonstrate, by clear and convincing evidence, " 'the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure' " (People v Coleman, 73 AD3d 1200, 1203 [2d Dept 2010], citing People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]). Once the People have met their burden, "the burden shifts to the defendant to persuade the hearing court that the [identification] procedure was improper" (People v Holley, 26 NY3d 514, 521 [2015]).

In this case, the People gave notice of one identification, which they referred to as a "photograph-array" made by the complainant on "8/16/23 [at] 17:26" to Detective Twohig at 1243 Surf Avenue (see People's Notice Pursuant to CPL 710.30[1][b] [emphasis added]), which Detective O'Connor testified was the address of the Brooklyn Transit Squad (tr at 57). The People did not provide notice of the complainant's identification of the defendant as the person depicted on the transit station surveillance video.

Criminal Procedure Law section 710.30(1)(b) requires the People to give notice of any identification of the defendant "at the time or place of the commission of the offense or upon some other occasion relevant to the case." The People, citing to People v Gee, 99 NY2d 158 (2002), submit that "the complainant's viewing of the video should not be constituted as an identification procedure for which notice is required pursuant to CPL 710.30(1)(b)" (tr at 69-70). The People contend that "the case at hand is almost identical" to Gee.

In Gee, the Court of Appeals held that the complainant-clerk's statement " 'that's them' " when viewing a videotape of the robbery captured on the store's surveillance camera was her "simply ratifying the events as revealed in the videotape" and not an identification of the defendant "within the meaning of CPL 710.30(1)" (99 NY3d at 162). In distinguishing Gee from "typical" Wade determinations, the court emphasized that at the time of the viewing, "the police had no suspects and had not even begun to search for any" (id.). The Court concluded that undue suggestiveness is not implicated where a complainant is shown an actual depiction of the crime they themselves witnessed (id. at 163-164).

Contrary to the People's contention, the facts here are not identical to Gee. The video at issue here was a "police-acquired" video of the Atlantic Avenue train station and not a video of the Manhattan-bound train on which the alleged assault occurred. Further, there is nothing in the record to suggest that the complainant appears in the video or was present for the events depicted in the video. As such, the police were not "merely ask[ing] [the complainant] to view the film of the actual [crime] and thus review the very incident [he himself] had experienced" (cf. Gee, 99 NY3d at 163-164).

Moreover, when the police first reviewed the video, they had already spoken to the complainant, who had described the alleged assault and provided a description of the suspect. A review of the video reflects various individuals traversing through a train station including a male Hispanic with several children followed by a heavy-set woman with a stroller which matched the complainant's description (see People's Exhibit 1 at 1:40-3:20). It is thus arguable that when the police showed the complainant this video, they had already begun their search for a suspect (see People v Racine, 28 Misc 3d 1223, *6 [Sup Ct, Kings County 2010] [identification found unduly suggestive where, inter alia, the witness was shown a video where the individuals depicted in the video matched the description previously provided by the witness]).

Accordingly, this court finds that the complainant's identification of the defendant from the video was the type of identification for which notice should have been given pursuant to CPL section 710.30(1)(b) (cf. Racine, 28 Misc 3d 1223[A], *6 ["If, instead, the surveillance videos had shown the Ocean Avenue events Martinez had actually observed, then his police-arranged viewing of the surveillance videos would not have been unnecessarily suggestive, but, rather, merely a confirmatory viewing not subject to a Wade hearing because no 'selection process' would be involved"]). Nevertheless, where, as here, the defense did not move for preclusion, but instead "moved to suppress identification testimony and received a full hearing on the fairness of the identification procedure," the preclusion argument is waived (People v Kirkland, 89 NY2d 903, 905 [1996]).

The court now turns to what effect, if any, the viewing of the video had on the complainant's subsequent identification. The facts surrounding the showing of the surveillance video here are more akin to those in People v Racine, 28 Misc 3d 1223(A). At issue in Racine, was a witness' identification of the defendant in surveillance video depicting the area surrounding the crime. In Racine, the surveillance video identification was not from videos [*5]depicting the actual incriminating events the witness had observed, but rather from videos of events the witness had not previously seen (28 Misc 3d 1223[A], *6). The hearing court found that showing that video to the witness and telling him when and where the videos were taken coupled with the fact that the individuals depicted in the video matched the description previously provided by the witness rendered the identification unduly suggestive (id. at *5-7; cf. Gee, 99 NY2d at 164 ["Inasmuch as it was the robber shown on the videotape (as opposed to a police-acquired photograph or other depiction of defendant), there is no danger that the clerk identified defendant by unduly suggestive means"]). Given the very similar circumstances of the video viewing in this case, the court concludes that it was unduly suggestive.

Notwithstanding, a sufficient passage of time can "dissipate any taint of suggestiveness" (People v Allah, 158 AD2d 605, 606 [2d Dept 1990]). Here, the photo array procedure was administered approximately nine days after the complainant viewed the surveillance video, which was sufficient time to attenuate any possible taint (see People v Spero, 172 AD2d 782, 782-783 [2d Dept 1991] [line up identification not tainted by "allegedly suggestive photographic identification procedure" conducted four days earlier]). Moreover, there is no indication on this record that, during the photo array, the complainant was merely identifying the defendant as the person from the video. According to Detective Merizalde, the complainant specifically indicated that he recognized the defendant's photo to depict "the person that attacked [him] on the train on August 6, 2023," and who "stabbed [him] in the face with a screwdriver" (see People v Baez, 137 AD3d 805, 805 [2d Dept 2016] [viewing of surveillance video and stills did not taint the witness' subsequent identification of the defendant where hearing evidence "did not establish that, at the lineup procedure, the witness was merely identifying the individual she had seen in the videos and photographs rather than the man who had participated in the subject altercation"]). Therefore, the court finds that the complainant's viewing of the surveillance video did not taint the subsequent photo array procedure.

Turning to the photo array itself, a photo array is impermissibly suggestive "when some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection" (People v Zamfino, 160 AD3d 779, 780 [2d Dept 2018]; see People v Thomas, 164 AD3d 619, 621 [2d Dept 2018]; People v Boria, 279 AD2d 585, 586 [2d Dept 2001]). The test for suggestiveness is whether a substantial likelihood exists that the defendant would be singled out for identification, but no requirement exists that the photos surrounding the defendant be nearly identical in appearance (People v Burroughs, 98 AD3d 583, 583 [2d Dept 2012]).

Here, the court has reviewed the photo array admitted into evidence as People's Exhibit 4. The six-photo array places the defendant in the second position. The photo array depicts six individuals who are similarly positioned and distanced to the camera, and all appear to be of the same general age, race and ethnicity, with similar eye color, facial hair, facial expression and bald hair style. The "photographs were [also] 'cropped in a manner that render[ed] height comparisons speculative' " (People v Marryshow, 162 AD3d 1313, 1314 [3d Dept 2018], quoting People v Lanier, 130 AD3d 1310, 1313 [3d Dept 2015]).

Furthermore, the photo array herein was administered in a double-blind procedure. Criminal Procedure Law (CPL) section 60.25(1)(c) provides that a photographic array administered in a "blind or blinded procedure" is admissible when the administrator of the array (i) does not know who the suspect is, or (ii) does not where the suspect is located within the array. "The 'blind/blinded' criterion is intended to deny the administrator of an identification [*6]procedure the knowledge that could prompt him to send signals, even unwittingly, to the viewing witness" (Hibel, New York Identification Law §4.06[4], at 4-62 [2021]). The photo array at issue here was created by Detective Twohig and subsequently administered by Detective Merizalde. Detective Merizalde did not assist in the creation of the photo array and had no knowledge about the investigation or its subject. Accordingly, the photo array at issue here complied with the statutory requirements for a double-blind photo array (see CPL § 60.25[1][c]).

Accordingly, the defendant's motion to suppress his identification by the complainant on Wade grounds is denied.

As to the Dunaway portion, "probable cause to arrest requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed, and that the defendant committed or is committing that offense" (People v Wright, 8 AD3d 304, 307 [2d Dept 2004], citing People v Bigelow, 66 NY2d 417, 423 [1985]).

"It is well settled that information provided by an identified person, accusing another identifiable individual of a crime, is sufficient to provide the police with probable cause to arrest" (People v Sanders, 239 AD2d 528, 528 [2d Dept 1997]; see People v Evans, 237 AD2d 458, 459 [2d Dept 1997]; People v Bingham, 176 AD2d 740, 740-741 [2d Dept 1991]; People v Smith, 124 AD2d 756, 757 [2d Dept 1986]). Unlike information supplied by anonymous or paid informants, which typically requires additional indicia of reliability or corroboration, a report from an identified complainant is legally sufficient to establish probable cause, even in the absence of prior proof of the complainant's reliability or independent corroboration of their statement (see People v Crespo, 70 AD2d 661, 661 [2d Dept 1979] [complainant can establish probable cause without testing reliability or corroborating information supplied]; People v Hyter, 61 AD2d 990 [2d Dept 1978] [police were not required to verify information supplied by eyewitness complainants who provided names to police and information of crimes just witnessed]).

On August 7, 2023, one day after the incident, Detective Twohig spoke with the complainant. The complainant recounted the incident and provided a description of the perpetrator. On that same date, the detective obtained and reviewed surveillance footage from the surrounding area, which he then showed to the complainant. The complainant indicated that he recognized the shirtless individual in the video. Two days later, on August 9, 2023, the complainant provided the detective with a photograph of an individual who he alleged was the perpetrator. That photo and still images from the surveillance video were submitted to FIS, which returned a possible positive match to an individual named "Angel Rodriguez." Further, there was a double-blind photo identification procedure conducted, wherein the complainant identified the defendant as the perpetrator of the crime.

The information known to Detective Twohig as described above established sufficient probable cause for the defendant's arrest (see People v Moreno, 148 AD3d 827, 828 [2d Dept 2017] [arrest supported by probable cause where totality of the circumstances would have led a reasonable person possessing the same expertise as the investigating officer to conclude that the defendant stabbed the victim]; see also People v Brown, 180 AD3d 1063, 1063 [2d Dept 2020] [probable cause found where police had already interviewed the complainants, who described the home invasion and the defendant's participation therein, [and] complainants also showed [*7]police a photo of the defendant obtained from the defendant's Facebook page and identified him as one of the perpetrators]; People v Boyd, 244 AD2d 497, 497 [2d Dept 1997] [complainant's photographic identification of defendant and statements of informant established probable cause]). Thus, Detective Twohig's issuance of the probable cause I-card for the defendant's arrest was proper.

The People also have the burden of establishing that the officer who then detained the defendant had knowledge of the I-card or information supporting probable cause (see People v Powell, 101 AD3d 756, 758 [2d Dept 2012] [arrest deemed unlawful because People did not establish that officers who detained the defendant actually received any information from another officer who may have possessed probable cause]; People v Williams, 65 Misc 3d 852, 858-859 [Sup Ct, Kings County 2019] [People's burden was to not only show that investigating officers had information to constitute probable cause, but that the officer who detained the defendant actually received such information]). "Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting 'upon the direction of or as a result of communication with' a fellow officer or another police agency in possession of information sufficient to constitute probable cause for the arrest" (People v Ketcham, 93 NY2d 416, 419-420 [1999], quoting People v Ramirez-Portoreal, 88 NY2d 99, 113 [1996]). Absent evidence to the contrary, "the testimony of the detective who issued the I-card mandate[s] the inference that the defendant was arrested with probable cause by another officer, based on the issuance of that I-card" (People v Palacios, 234 AD3d 716, 717 [2d Dept 2025] [internal quotation marks omitted], quoting People v Wayman, 188 AD3d 538, 539 [1st Dept 2020]; see People v McUllin, 201 AD3d 574, 575 [1st Dept 2022]; People v Rose, 178 AD3d 487, 488 [1st Dept 2019]).

Here, Detective Twohig testified that the defendant was apprehended by "someone from warrants." While minimally sufficient, this testimony supports the inference that the defendant was apprehended by the warrants squad pursuant to the I-card issued by Detective Twohig (see Palacios, 234 AD3d at 717 [denial of motion to suppress statements upheld where detective testified that "he activated a probable cause I-card, which informed other police officers that probable cause existed to arrest the defendant, and that the defendant was apprehended by patrol officers the following day" and defendant offered no evidence to the contrary]; Wayman, 188 AD3d at 539 [trial court properly denied defendant's suppression motion where hearing evidence established that the warrant squad arrested the defendant on basis of probable cause I-card and defendant offered no evidence to the contrary]; Rose, 2178 AD3d at 488 [motion to suppress properly denied where "[d]efendant offered no evidence to support his speculation that he was randomly seized without cause and brought to the same precinct that was investigating his involvement in the subject robbery"]; cf. People v Hightower, 176 AD3d 865, 866 [2d Dept 2019] [insufficient evidence from which to infer that police arrested defendant pursuant to I-card where officer who issued the I-card testified that defendant was arrested "on a different matter"]). Moreover, the defendant offered no evidence to the contrary.

Accordingly, the defendant's motion to suppress his statement on Dunaway grounds is denied.

Turning to the Huntley portion, the People bear the burden of proving beyond a reasonable doubt that the statements made by the defendant were voluntary (see People v [*8]Huntley, 15 NY2d 72, 74 [1965]). A defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v Arizona, 384 US 436 [1966]). "However, both the elements of police 'custody' and police 'interrogation' must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda" (People v Huffman, 41 NY2d 29, 33 [1976]).

It is undisputed that at the time the defendant made his videotaped statement to Detective O'Connor and Officer Restrepo he was in custody. It is also undisputed that the defendant's statement was the result of police interrogation. Exculpatory or inculpatory statements adduced from custodial interrogation are admissible where the prosecution demonstrates that an individual is first advised of the safeguards commonly referred to as Miranda warnings, namely, that "they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to the presence of an attorney prior to and during the course of questioning, and that if they cannot afford an attorney one will be appointed for them prior to any questioning" (People v Dunbar, 104 AD3d 198, 205-206 [2d Dept 2013], affd 24 NY3d 304 [2014]). An individual may then waive their constitutional rights provided it is shown "that the waiver was made with 'a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it' " (id. at 206, quoting Moran v Burbine, 475 US 412, 421 [1986]).

Here, the defendant was verbally advised of his Miranda rights prior to being questioned and no threats or promises were made by the interviewing detectives. The defendant acknowledged that he understood each Miranda right by answering "yes" when asked whether he understood. The defendant then agreed to answer questions.

The defendant submits, and the People do not dispute, that during the interrogation the defendant advised the police that he had spoken to an attorney. The defense argues that once he indicated that he had spoken to an attorney, the detectives should have ceased the interrogation notwithstanding his previous waiver of his Miranda rights.

There are two circumstances where the right to counsel attaches indelibly. "First, it arises when formal judicial proceedings begin, whether or not the defendant has actually retained or requested a lawyer. Second, [it] attaches when an uncharged individual 'has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter' " (People v Ramos, 99 NY2d 27, 32-33 [2002] [internal citations omitted]). Once the right to counsel attaches, a subsequent waiver of the that right may only be made in the presence of counsel (People v Harris, 93 AD3d 58, 66 [2d Dept 2012]).

As an initial matter, the scope of this suppression hearing pertains to matters that occurred prior to the commencement of formal judicial proceedings. At the time of the interrogation, formal judicial proceedings had not begun and thus the right to counsel had not attached. Accordingly, the first situation is inapplicable.

With respect to the second situation, the evidence before this court does not establish that the defendant "actually retained" an attorney. The defendant merely informed the detectives that he "spoke to a lawyer" about surrendering and was told by the attorney that it was "up to [the defendant]" as to whether to "take the chance" or clear the warrant. At no point in the interrogation did the defendant state that he had "actually retained" said attorney, nor did he provide any contact information for that attorney. The right to counsel does not attach where, as here, the defendant "[sought] only information and not representation from an attorney" (People v Beickert, 191 AD2d 499, 500 [2d Dept 1993]; see also People v Roe, 73 NY2d 1004, 1006 [*9][1989] [right to counsel did not attach where the defendant contacted an attorney to ask whether police could access military record fingerprints but did not discuss the criminal investigation]).

Further, there was nothing to suggest that an attorney had appeared in the case thereby rendering invalid any subsequent waiver of Miranda made outside of counsel's presence (see Beickert, 191 AD2d at 500 [defendant's right to counsel did not "indelibly attach" prior to waiver where "the hearing evidence did not indicate that an attorney representing the defendant had entered this criminal proceeding"]). For example, there was no testimony of an attorney contacting the police or taking any other affirmative steps to represent the defendant (cf. People v Marrero, 51 NY2d 56, 59 [1980] [Miranda waiver made outside of counsel's presence invalid where an attorney had contacted the police and arranged for the defendant's surrender in the attorney's office with counsel present]; People v Pinzon, 44 NY2d 458, 464 [1978] [attorney deemed to have appeared on behalf of defendant where the attorney called the general information number for police headquarters, identified himself to civilian operators, asked to speak with the defendant, who was in custody, and requested that police cease questioning]).

Also, absent from this record is evidence that while in custody the defendant requested a lawyer. "Whether [a] defendant unequivocally invoked his right to counsel is a mixed question of law and fact" (Harris, 93 AD3d at 67). In making this determination, courts must consider "the circumstances surrounding the request, including the defendant's demeanor, manner of expression, and the particular words found to have been uttered by the defendant" to ascertain "whether 'a reasonable police officer in the circumstances would understand the statement to be a request for an attorney' " (id. [internal citations omitted])."An unequivocal invocation . . . must alert the police that the presence of counsel . . . is specifically requested. A suggestion that counsel might be desired; a notification that counsel exists; or a query as to whether counsel ought to be obtained will not suffice" (People v Mitchell, 2 NY3d 272, 276 [2004]; cf. People v Porter, 9 NY3d 966, 967 [2007] [defendant's statement 'I think I need a lawyer' together with officer's notation "that defendant was 'asking for an attorney' " demonstrated an unequivocal invocation of the right to counsel]; People v Esposito, 68 NY2d 961, 962 [1986] [defendant's statement "I might need a lawyer" after being confronted with victim's statements "constituted a request for counsel"]). Here, the defendant's statement that he had spoken to a lawyer several months prior to his arrest about surrendering does not demonstrate an "unequivocal invocation" of the right to counsel. Accordingly, the defendant has not demonstrated that the indelible right to counsel attached prior to his waiver of Miranda or that he invoked it during the interrogation.

Rather, the defendant, "who has had extensive prior contact with the criminal justice system," expressly waived his Miranda rights (People v Harris, 115 AD2d 619, 619 [2d Dept 1985] ["In determining the totality of the circumstances as to whether an alleged waiver is knowing, intelligent and voluntary, the court may consider a defendant's prior involvement with the law and his express indication that he understands his constitutional rights"]). As such, the People have met their burden of proving beyond a reasonable doubt that the defendant's statement was made after he knowingly, intelligently and voluntarily waived his Miranda rights (see People v Dunwoody, 89 AD2d 569, 570-571 [2d Dept 1982] [defendant's affirmative response to final Miranda question "constituted a sufficient, expressly stated waiver of his constitutional rights ... [and] must be evaluated in light of the context of the question, which called for an acknowledgment of his understanding of his constitutional rights, ... and having such understanding, to willingly submit to interrogation"]; People v Campbell, 81 AD2d 300, 308 [2d Dept 1981] [" 'Where . . . a defendant in custody has been fully informed of his rights [*10]and has indicated that he understands them, his subsequent voluntary decision to speak to the police without requesting an attorney may, in all but the most unusual circumstances, be held to constitute a valid waiver' "] [emphasis in original]).

Accordingly, the defendant's motion to suppress evidence on Huntley grounds is denied (see People v Rowell, 59 NY2d 727, 730 [1983] [statements admissible where the defendant had not retained counsel to the knowledge of the police nor did he unequivocally invoke his right to counsel]).

For the reasons set forth above, the defendant's motion to suppress is denied in its entirety.

This constitutes the Decision and Order of the court.