The defendant is charged with attempted rape in the first degree, and other related charges. On July 21, 2025, August 19, 2025, and August 21, 2025, this Court conducted a combined Dunaway/Rodriguez/Huntley hearing. The People called Police Officer Ahmed Zaitoun as a witness. The Defense called Police Officer Emilio Ortega as a witness. At the conclusion of the hearing, the Court heard oral arguments, and the parties submitted case law.

Based on the hearing evidence, and the applicable law, the Court makes the following findings of fact and conclusions of law.

Officer Zaitoun has been with the NYPD for three years and is currently assigned to the 79th precinct. Officer Zaitoun testified that on December 7, 2024, he became involved in an investigation of a sexual assault that occurred in an apartment of a building located on Herkimer Street, in Brooklyn. Officer Zaitoun arrived at the building at around 12:20 p.m., with his partner Police Officer Robert Stulz, as well as back-up officers Police Officers Emilio Ortega and Rodney Hale. Officer Zaitoun testified that he met an individual, identified as the complainant, in the lobby. The complainant pointed to the defendant and informed Officer Zaitoun that the defendant "has to go" and that the defendant tried to rape her. The defendant, who was standing a few feet away from the complainant, turned around and put his hands behind his back. Officer Zaitoun testified that based on the complainant's allegations, he placed the defendant in handcuffs and under arrest. Officer Zaitoun testified that the defendant then "admitted and he agreed to the statement she made. He said he tried to rape her." Officer Zaitoun testified that the defendant had swelling over his left eye from an injury, was bleeding from the face, and had blood on his hands. Officer Zaitoun asked the defendant where the blood came from, and the defendant responded that he did not know. Officer Zaitoun testified that the defendant also [*2]appeared "a little shaken" and "shaky." Officer Zaitoun requested medical attention for the defendant. EMS personnel arrived at the location, treated the defendant and placed a white bandage above the defendant's left eye. Officer Zaitoun testified that the defendant was then transported to the 79th precinct by Officers Ortega and Hale, "in order to get debriefed."

The People introduced footage from Officer Zaitoun's body-worn camera as People's Exhibit 1. The Defense introduced footage from Officer Ortega's body-worn camera as Defense's Exhibit A, footage from Sergeant Damany Ferril's body-worn camera as Defense's Exhibit B, and surveillance video taken from the lobby of the building as Defense's Exhibit C.

The surveillance video shows that at about 12:01:20 p.m., the defendant attempted to leave the building, through the lobby's double doors. The complainant ran behind the defendant, guided the defendant from the vestibule back into the lobby, and stood in front of the entrance. The complainant closed the door and began speaking with another person behind the reception glass window. At least three other individuals then appeared in the lobby. Although there is no audio, the defendant and the individuals appear to be engaged in an argument, based on the way in which the complainant and individuals #1, #2, and #3 surrounded the defendant. At about 12:03:20, the complainant walked up to the defendant. The defendant backed away from the complainant, and they went off-screen. At about 12:04:29, the complainant walked up to the defendant again, and they went off-screen. When they appeared on-screen at about 12:04:45, individuals #1 and #2 are punching the defendant. At about 12:05:00, the complainant began punching the defendant multiple times about the face and body. At about 12:05:09, individual #2 joined in, and also began punching the defendant about the face and body. At about 12:05:32, the complainant and individuals #1 and #2 are punching and kicking the defendant, while individual #3, looked on. At about 12:05:42, the complainant and individual #2 stopped punching the defendant, but individual #1 continued punching the defendant. At about 12:05:49, individual #1 walked away from the defendant, and then the complainant and individual #2 started punching the defendant about the face and the body. The complainant and individuals #1, #2, and #3 remained in the lobby with the defendant, and then individual #4 appeared. The complainant and the individuals surrounded the defendant. At about 12:07:34, individual #2 walked up to the defendant and punched the defendant. Individuals #1 and #2 then stood in front of the defendant in fighting stances. At some point, individuals #1 and #4 exited the lobby. The complainant and individuals #2 and #3 remained in the lobby with the defendant. At about 12:09:01, individuals #1 and #4 came back into the lobby, and the complainant appeared to be shouting at the defendant. Between 12:10:00 and the time when the officers arrived, the complainant and the individuals went in and out of the lobby, but at least two individuals remained in the lobby, with the defendant. At about 12:11:00, the defendant moved towards the entrance. Individual #2 stood in front of the entrance, and the defendant backed up against the reception glass window. At about 12:16:30, the complainant and individuals #1, #2, and #4 are standing in the lobby with the defendant, when individual #5 entered the lobby and began speaking with the defendant, while pointing to the other individuals. By about 12:19:18, individual #5 walked away, and the complainant and individuals #1, #2, #3, and #4 remained in the lobby, with the defendant.

At about 12:23:05 p.m., the complainant and individuals #2 and #4 are in the lobby when Officers Zaitoun and Stulz arrived. Officer Zaitoun's body-worn camera footage depicts the complainant shouting and pointing to the defendant. The defendant immediately turned his back and put his hands behind his back. Officer Zaitoun approached the defendant and pushed the defendant up against the reception glass window. Officer Stulz told the complainant to talk to [*3]him. The complainant began explaining what occurred, when Officers Orgeta and Hale entered the lobby, along with individual# 3. The complainant told the officers that the defendant tried to rape her, and individual #4 stated, "And he admitted to it." Officer Zaitoun placed the defendant in handcuffs and asked the defendant where the blood was coming from. Officer Zaitoun asked the defendant what he had to say in response to the complainant's accusations and asked whether it was true. The defendant responded that he was "high," tried to pull down the complainant's pants, and put his "thing" in her and the complainant stated, "stop." Officer Zaitoun then asked the defendant whether he tried to pull the complainant's pants down and asked the defendant whether he "tried" The defendant responded, "yes." Officer Zaitoun then asked the defendant whether the defendant had pulled his pants down too. At that time, Officer Stulz came to assist Officer Zaitoun with the arrest, while Officers Orgeta and Hale stood next to the complainant, and individuals #2 and # 4. Individual #3 was also present in the lobby. Officer Zaitoun continued to ask the defendant questions, including how the defendant gained access to the apartment. An individual can be heard in the background explaining how the defendant knew the complainant.

At around 12:33 p.m., EMS arrived in the lobby and bandaged the defendant's face. Footage from Officer Ortega's body-worn camera shows that at about 12:37:54, the defendant asked twice, to see EMS, while he was seated in the police van. Officer Ortega told the defendant that he had already seen EMS, and that EMS had treated his cut. Officer Zaitoun testified that the defendant left the scene at 12:40 p.m. and arrived at the precinct at 12:45 p.m. Footage from Officer Ferril's body-worn camera shows that at about 12:48:20 p.m., the defendant stated, three times, that he needed EMS. Officer Ortega indicated that EMS had looked at the defendant on the scene.

Officer Zaitoun testified that upon his arrival at the precinct, he started the arrest process, conferred with his supervisor, and contacted the Special Victims' Unit. Officer Zaitoun testified that the defendant was lodged in a holding cell between 12:50 and 2:30 p.m. Officer Zaitoun then took the defendant from the holding cell to the interview room. Officer Zaitoun testified that he observed the defendant with a bandage on the top of his left eye. Officer Zaitoun described the interview room as around 12 feet by 12 feet, with a small table inside, with one chair on each side, and a third chair to the side of the table. Detective Rami Albahri sat across from the defendant, and Officer Zaitoun took a seat to the side. Officer Zaitoun testified that the defendant was debriefed by Detective Albahri at around 2:40 p.m. Officer Zaitoun testified that he observed Detective Albahri read the defendant Miranda warnings, and the defendant agreed to speak, and "made another confession that he tried to rape the victim." A copy of the interrogation video was memorialized and introduced into evidence, as People's Exhibit 2.

Officer Zaitoun testified that he spoke with the complainant three times about the nature of her relationship with the defendant. The complainant described the defendant as "a friend of a friend." The complainant informed Officer Zaitoun that she first saw the defendant back in 2019 and had seen the defendant about 12 to 15 times, and for 15 to 18 hours. The complainant saw the defendant the day before the incident, on December 6, 2024, and knew the defendant as "Shells." The complainant also stated that the defendant had made prior advances towards her by offering her gifts. Officer Zaitoun testified that he took notes on his phone during his conversations with the complainant, but he later erased the notes without having preserved them and without having turned them over to the District Attorney's Office.

At a suppression hearing, the People bear the initial burden of going forward to establish the legality of police conduct in the first instance (see People v Berrios, 28 NY2d 361, 367 [1971]). Once the People have met this burden, it is the defendant who bears the burden of proving the illegality of police conduct (see People v Malinsky, 15 NY2d 86, 91 [1965]; People v Diaz, 146 AD3d 803, 804 [2d Dept 2017]).

Here, upon the police officers' arrival in the lobby of the building, the complainant pointed to the defendant and informed the officers that the defendant had tried to rape her. Therefore, the police had probable cause to arrest the defendant (see People v Hewitt, 82 AD3d 1119, 1110 [ [2d Dept 2011]; People v Bandera, 204 AD2d 340, 341 [2d Dept 1994]). Moreover, the identification of the defendant by the complainant, was not police arranged in any way. As soon as the officers arrived in the lobby of the building, the complainant pointed to the defendant, without any prompting by the police officers. Additionally, the evidence established that the complainant was sufficiently familiar with the defendant, based on the complainant's prior relationship and interactions with the defendant (see People v Rodriguez, 79 NY2d 445, 450-51 [1992]; People v Conry, 230 AD3d 596, 597 [2d Dept 2024]).^[FN1] Therefore, the motion to suppress identification evidence is denied.

At a Huntley hearing, the People carry the burden of proof to establish the legality of police conduct in obtaining a statement from a defendant (see People v Huntley, 15 NY2d 72, 78 [1965]). Statements that are the product of custodial interrogation must be preceded by Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]). Additionally, the People have the "heavy burden" of proving the voluntariness of any statements allegedly made by the defendant, beyond a reasonable doubt (see People v Holland, 48 NY2d 861, 862 [1979]).

The Court finds that the defendant was subjected to custodial interrogation, for Miranda purposes, when he made the initial statements in the lobby of the building. When Officer Zaitoun entered the lobby, the complainant pointed to the defendant and told the officers that the defendant tried to rape her. The defendant, who was standing a few feet away from the complainant, turned around and put his hands behind his back. Officer Zaitoun pushed the defendant against the reception glass window. Four police officers were present in the lobby, along with the individuals who had punched and kicked the defendant before the officers' arrival. Once Officer Zaitoun heard the complainant's accusations, Officer Zaitoun placed the defendant in handcuffs, and under arrest. The defendant was in custody, as he was detained and not free to leave (see People v Cabrera, 41 NY3d 35, 53 [2023]; People v Backs, 153 AD3d 720, 722 [2d Dept 2017]). Additionally, the questions posed to the defendant were not merely designed to clarify the situation but rather amounted to interrogation. When the complainant informed the officers what had occurred, individual #4 stated, "And he admitted to it," and then Officer [*4]Zaitoun placed the defendant in handcuffs, and immediately questioned the defendant about the complainant's accusations. Officer Zaitoun asked the defendant what the defendant had to say in response to the complainant's accusations and whether the accusations were true. When the defendant told Officer Zaitoun what had occurred, Officer Zaitoun proceeded to ask the defendant additional questions regarding the manner of the alleged incident, including whether the defendant tried to pull the complainant's pants down, and whether the defendant had pulled his pants down too. The defendant's incriminating statements were prompted by Officer Zaitoun's continued questioning and were obtained in violation of Miranda (see People v Trice, 213 AD3d 954, 957 [2d Dept 2023]; People v Crawford, 163 AD3d 986, 987 [2d Dept 2018]).

To assess the voluntariness of a defendant's statements, a court must consider the totality of the circumstances because "[a] series of circumstances may each alone be insufficient to cause a confession to be deemed involuntary, but yet in combination they may have that qualitative or quantitative effect" (People v Anderson, 42 NY2d 35, 38 [1977]). To prove beyond a reasonable doubt that statements of a defendant are voluntary, the People must show that the defendant's statements "were not products of coercion, either physical or psychological, or in other words, that the statements were given as a result of a 'free and unconstrained choice by their maker'" (People v Thomas, 22 NY3d 629, 641 [2014], quoting Culombe v Connecticut, 367 US 568, 602 [1961]). Under CPL 60.45(2)(a), an "involuntarily made" statement is one obtained from the defendant, "[b]y any person by the use or threatened use of physical force upon the defendant...or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement." See also People v Grillo, 176 AD2d 346, 347 (2d Dept 1991).

The video evidence established that the defendant was kicked and punched, by at least four individuals, including the complainant, at different periods, before the police officers arrived in the lobby. Although there is no audio, the manner in which the complainant and the individuals were interacting with the defendant plus the physical beating, raises significant doubt as to whether the defendant's statements were truly voluntary. The beatings stopped before the officers arrived, but the individuals blocked the entrance to prevent the defendant from leaving the lobby and remained in the lobby with the defendant until the police officers arrived. Officer Zaitoun observed that the defendant had visible injuries. The defendant had swelling over his left eye and was bleeding from the face. The defendant also had blood on his hands and appeared "a little shaken" and "shaky," which prompted Officer Zaitoun to request medical attention for the defendant. The individuals, including the complainant, who had punched and kicked the defendant, were present in the lobby, within close proximity of the defendant, when Officer Zaitoun placed the defendant in handcuffs, and questioned the defendant about the accusations that the complainant had just made against him, in violation of Miranda. After the defendant responded to Officer Zaitoun's initial questions, Officer Zaitoun continued to ask follow-up questions, which led to more incriminating statements. And although the defendant answered the questions regarding the complainant's accusations, the defendant informed Officer Zaitoun that he did not know where his injuries came from, even though the individuals who had caused those injuries were present in the lobby. Considering the totality of the circumstances, it cannot be said that when viewed objectively, the defendant's responses to Officer Zaitoun's questions were not made under duress or coercion, or that they were given as a result of a "free and unconstrained choice by [their] maker" (Thomas, 22 NY3d at 641). And it cannot be said that the [*5]defendant's statements were "self-generated" and made without" apparent external cause" (see People v Tavares-Nunez, 87 AD3d 1171, 1172-1173 [2d Dept 2011]). Therefore, on this record, the Court cannot conclude, as a matter of law, that the defendant's statements in the lobby were truly voluntary.

"[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a 'single continuous chain of events,' there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed" (People v Paulman, 5 NY3d 122, 130 [2005]). To determine whether there is a "single continuous chain of event," a court may consider several factors, "including the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police (id. at 130-131). "No one factor is determinative, and each case must be viewed on its unique facts" (id. at 131). "The purpose of the inquiry is to assess where there was a sufficiently 'definite, pronounced break in the interrogation' to dissipate the taint from the Miranda violation" (id., quoting People v Chapple, 38 NY2d 112, 115 [1975]).

Having reviewed the interrogation video, based on the circumstances of this case, it cannot be said that there was "such a definite, pronounced break" in the interrogation that the defendant was returned to the position of one who was not under the influence of the initial improper questioning (see People v Rodriguez, 132 AD3d 781 [2d Dept 2015; People v Moyer, 292 AD2d 793 [4th Dept 2002]). Officer Zaitoun testified that the defendant was brought to the precinct to be "debriefed." Although the second statements took place 2 hours and 10 minutes later in a different location, and Detective Albahri administered the Miranda warnings and questioned the defendant, Officer Zaitoun who had arrested and questioned the defendant in the lobby, was also present in the interrogation room. It also cannot be said that the defendant had indicated a willingness to speak before the Miranda violation. The defendant had been physically beaten by the complainant and the other individuals, who remained in the lobby, when Officer Zaitoun questioned the defendant, and when the defendant made those statements. The defendant's injuries were still visible when the officers arrived in the lobby. EMS bandaged the defendant's face, but the defendant continued to request medical attention. The defendant was repeatedly denied his request to see EMS and instead was taken to the interview room to be interrogated.

Additionally, the defendant's demeanor and body language in the interrogation video does not demonstrate that the defendant understood the import of the Miranda warnings, and a "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it" (see People v Galvez Marin, 225 AD3d 622, 624 [2d Dept 2024]). The video shows that the first time Detective Albahri administered Miranda warnings and informed the defendant that if he could not afford an attorney, one would be provided to him without any cost, the defendant indicated he did not understand. Detective Albahri asked the defendant whether he wanted the warnings read again, and the defendant turned to the side and looked at Officer Zaitoun. In response, Officer Zaitoun nodded his head and motioned the defendant back to Detective Albahri. When Detective Albahri readministered Miranda warnings, a second time, and asked the defendant whether he was willing to answer questions, the defendant gave a non-[*6]verbal response. Detective Albahri told the defendant that he needed a "yes or no." The defendant responded that his grandmother is a Jehovah's Witness, and asked whether he could smoke a cigarette. Detective Albahri said that he would give the defendant a cigarette but had to ask the questions and told the defendant that he needed a "yes or no" answer to the questions. In response, the defendant stated again that he needed a cigarette, and said that he felt "unsafe." Detective Albahri then informed the defendant that "if you don't feel safe talking to us, you don't have to talk to us," "it's your choice," but this is a "requirement in order for me to talk to you," "for me to ask questions...to get information," and "gotta read you these rights." Detective Albahri also informed the defendant that the Miranda warnings were "just a standard procedure," that he was not there to "bust chops or nothing" and "just here to ask you these questions." Here, given the circumstances under which the Miranda violation occurred, and the defendant's response that he had not understood the warnings and felt "unsafe," Detective Albahri's commentary "effectively vitiated or at least neutralized the effect of the subsequently delivered Miranda warnings" (see People v Dunbar, 24 NY3d 304, 316 [2014]).

The interrogation video shows that after Detective Albahri gave the defendant a cigarette, the detective readministered Miranda warnings, for the third time. The defendant then indicated his understanding of each warning, after which Detective Albahri asked the defendant if he would answer questions. The defendant replied "yes," and Detective Albahri asked, "what's going on, why are we here today?" The defendant did not speak about the alleged incident. Rather, the defendant responded by talking about his grandmother, and admitted to grand theft. Detective Albahri then introduced himself, explained that he worked for the Special Victims' Unit, and then asked the defendant pedigree information. Afterwards, Detective Albahri asked the defendant, "what happened today" and it was at that point, that the defendant made incriminating statements. During the interview, Detective Albahri also asked about the defendant's injury, and inquired about who caused the injury. Although the defendant indicated that his injury was connected to the incident, the defendant insisted that he did not know what happened, although the complainant and the other individuals who had caused the injuries were present in the lobby, when the defendant was arrested and questioned by Officer Zaitoun. After considering all these factors, and the nature of the Miranda violation, this Court concludes that the defendant's first and second statements, flowed as part of a "single continuous chain of events."

To be clear, there was no evidence that the defendant was impaired by drugs or alcohol, or that the defendant suffered from any mental condition. There was also no evidence that the defendant was incapable of understanding his rights and making a knowing and intelligent waiver. However, proof of voluntariness compatible with due process, requires consideration of "the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation" (see People v Guilford, 21 NY3d 205, 208 [2013]). Based on events leading up to the police officers arrival in the lobby, the circumstances surrounding the Miranda violation, Detective Albahri's multiple readings of the Miranda warnings, the circumstances leading up to the defendant's Mirandized statements, in addition to Officer Zaitoun's presence and participation in the interview room, as well as the defendant's demeanor and behavior before he made the incriminating statements, this Court cannot conclude, as a matter of law, that the People met their burden of proving that the statements were truly voluntary, beyond a reasonable doubt.

The Court finds that the arrest of the defendant was supported by probable cause, and the [*7]motion to suppress identification evidence is DENIED.

The Court also finds that the defendant's first statements in the lobby were involuntarily made.^[FN2] Additionally, the motion to suppress the defendant's second statements at the precinct is GRANTED.

The foregoing constitutes the Decision and Order of the Court.