Under the instant indictment, the defendant is charged with Murder in the Second Degree and related offenses for allegedly shooting and killing Anthony Gonzalez on July 11, 2023, in Bronx County. This indictment was consolidated with IND-70532-24, which charges the defendant with Criminal Possession of a Weapon in the Second Degree and related offenses for allegedly possessing a loaded firearm on December 8, 2023, in Bronx County.

A combined Mapp, Rodriguez/Wade, Huntley, and Dunaway hearing was held on July 1 and 2, 2025. At the hearing, the People called as witnesses Detectives Tomor Berisha and Nanakwame Mensah and Probation Officer Henry Argant. The defense presented no evidence. After considering the witnesses' testimony, the hearing exhibits, relevant case law, and the parties' arguments and post-hearing submissions, the defendant's motion to suppress is granted in part and denied in part.

On July 11, 2023, at approximately 10:20 p.m., Detective Berisha responded to multiple 911 calls of shots fired at 1791 Gleason Avenue. When he arrived at the scene, the detective conducted a witness and video canvass. He spoke to several "eye" and "ear" witnesses and learned that a person had been shot and was taken to the hospital. Detective Berisha went to Jacobi Hospital where a doctor informed him that the victim, Anthony Gonzalez, had been shot in the head and was likely to die. He personally observed the gunshot wound to Mr. Gonzalez's head. Detective Berisha returned to the scene and recovered five 9mm shell casings and one spent bullet.

The police recovered video surveillance that captured Mr. Gonzalez prior to the shooting [*2]buying food at a restaurant,^[FN1] walking home, and being shot.^[FN2] Detective Berisha believed that the individual who shot Mr. Gonzalez appeared in video footage from prior to the shooting. Video showed Mr. Gonzelez walk past the alleged shooter^[FN3] after leaving the restaurant. Detective Berisha testified that the suspect "looked upset" and his interaction with the victim "didn't seem normal." Using various surveillance videos, the detective followed Mr. Gonzalez and the suspect. Detective Berisha's partner, Detective Alickaj, spoke to an eyewitness, apparently the victim's girlfriend, who stated Mr. Gonzalez had a verbal dispute with an individual dressed all in black with dark skin and dreadlocks. Other eyewitnesses who wished to remain anonymous provided Detective Alickaj with the nickname "Tony" for the shooter.

According to Detective Berisha, based on his investigation and viewing of video surveillance, the suspect had walked to Mr. Gonzalez's house, then walked to his own house, where he changed clothes and/or shoes. Thereafter, he walked back to Mr. Gonzalez's house and shot him. The suspect left the scene, walking not far from where the shooting occurred, where he was picked up in an SUV and driven to another location in the Bronx. He remained there with another individual until he got picked up by a taxi. He was dropped off in Yonkers. Detective Barisha obtained video from various locations in Yonkers that captured the suspect after the shooting, including standing outside 43 School Street with four individuals. A gold necklace with writing is visible around his neck.^[FN4]

Detective Berisha obtained a clear picture of the suspect from video surveillance from another location on School Street, allegedly the defendant's girlfriend's building. He contacted the taxi company and obtained a phone number for the suspect and a GPS map of the route the taxi had taken. After conducting a search of the phone number, Detective Berisha determined it was associated with the defendant.

On July 24, 2023, Detectives Berisha and Alickaj met with the defendant's probation officer, Henry Argant. Officer Argant identified the defendant from one of the Yonkers videos and a still image taken from it, as well as from a mug shot photo from a previous arrest. He also identified him in the courtroom during the hearing. Officer Argant testified he had been the defendant's probation officer since December 2021. He had over twenty-four, fifteen-to-twenty-minute visits with the defendant, both in the defendant's home and at his probation office, from December 2021 to July 17, 2023. Officer Argant stated he was able to view the defendant's facial features, hear his voice, and observe how he walked during their interactions. He noted the defendant wore a gold necklace that said "Tony," a name, Officer Argant testified, that the defendant is also known by. Although they had one more meeting scheduled, he did not see the defendant after their July 17, 2023, meeting.

After he was positively identified by Officer Argant, Detective Berisha activated an "I-card" and wanted poster for the defendant. He also contacted the Warrants unit to let them know the defendant was wanted for murder.

On December 8, 2023, at approximately 11:00 p.m., Detective Mensah was on patrol with three other officers in an unmarked police vehicle in the vicinity of 3315 Hull Avenue, which he described as a high-crime area. The detective testified "earlier that year" there was a nonfatal shooting in front of that building and "this past November" there was a shooting at a nearby building. Detective Mensah observed three individuals in the vestibule of 3315 Hull Avenue and decided to approach them "to see what was going on." Detective Mensah's body worn camera was activated during this encounter and was introduced into evidence at the hearing. He testified the individuals were "standing in this vestibule, sort of huddled over there. So, my first instinct is, why are they just standing there? . . . is it a case of loitering? Could something else be going on? I don't know, so I want to find out." Detective Mensah testified that when the individuals noticed him, they became startled and tried to enter the building. Two of the individuals remained in the lobby, one facing away from the detective and the other facing him. The third individual, who was wearing a mask, ran up a set of stairs. Detective Mensah chased that individual up several flights of stairs. Because he appeared to be "uneasy" while running up the stairs, he was not running fast, and his hands were by his waistband area, Detective Mensah thought the individual was trying to guard something in his waistband or crotch area. He did not, however, observe a bulge or anything else the individual may have been concealing. Detective Mensah caught the individual, who he identified as the defendant. The defendant was removed from the steps by the detective and the other officers and detained. Detective Mensah immediately patted him down in the waistband/crotch area and felt a heavy object that he believed felt like a firearm. He removed from his pants a loaded 9mm Glock firearm with an extended magazine. Narcotics were also recovered.

Detective Mensah arrested the defendant and discovered the I-card for the homicide. Detective Berisha was notified on December 8, 2023, that the defendant had been arrested and brought to the 52nd police precinct. Detectives Berisha and Alickaj, along with a detective from the 52nd precinct, interviewed the defendant. The videotaped interview was introduced into evidence at the hearing. Prior to speaking with him, Detective Berisha read the defendant his Miranda rights from a card. The defendant indicated he understood each right. The final question asked was whether he was "willing to answer questions." The defendant responded "no," which was acknowledged by Detective Alickaj: "No? You don't want to talk to us?" The defendant initially shook his head indicating "no," then asked, "about?" Detective Berisha said, "good luck, man," to the defendant. The detectives then asked the defendant if he wanted to "talk about tonight," "talk about what you were doing." The defendant appeared to repeat "what I'm doing?"^[FN5] and Detective Berisha said, "I wasn't there" and that "this is a conversation we can have." The defendant then appeared to say, "I want to see what's up, I wanna see what's going on." Detective Alickaj directed Detective Berisha to reread "the last part again," but before he did, Detective Alickaj asked the defendant if understood the rights that had been read to him. The defendant indicated that he understood them. Detective Alickaj asked him if he needed them repeated, and the defendant indicated that he did not. Detective Berisha reread, "now that I have [*3]advised you of your rights, are you willing to answer questions?" The defendant responded, "yes."

The initial questioning focused on the December 8th incident. The defendant acknowledged possessing a gun and not having a license to do so. The detectives informed him that he had been arrested for illegally possessing a gun. The defendant stated he did not know why he was stopped by the police. Several minutes into the interview, Detective Alickaj showed the defendant pictures related to the July 11th shooting, and the defendant indicated that he did not know who was in the photos (the police theory was that the photos were of the defendant after the shooting in his girlfriend's Yonkers building). Over approximately twenty minutes, the detectives questioned the defendant about the shooting, including showing him video surveillance. The defendant denied knowing anything about the shooting and asked the detectives questions about his arrest for the gun. Finally, Detective Alickaj told the defendant that they knew he was the shooter, and the detectives asked him why he did it. The defendant indicated he knew nothing about the shooting, that he was arrested for the gun, and that if they were going to charge him with the shooting, "get me a lawyer." The detectives continued to speak with the defendant, asking him if he wanted to talk about the shooting and reiterating that they knew he was the shooter. About five minutes later, the defendant again requested an attorney — "I prefer to talk to a lawyer" — and the detectives ended the interview.^[FN6]

It is the People's burden on a motion to suppress physical evidence, statements, and identification evidence allegedly obtained as a result of an illegal arrest or seizure to come forward with enough evidence to establish the legality of the police conduct (People v. Pettinato, 69 NY2d 653, 654 [1986]). If that burden is met, the defendant bears the ultimate burden of proving that the evidence offered against him was illegally or inappropriately obtained (People v. DiStefano, 38 NY2d 640, 652 [1976]; People v. Berrios, 28 NY2d 361, 367 [1971]). It is the People's burden to prove beyond a reasonable doubt that the defendant's statements were voluntary (People v. Thomas, 22 NY3d 629, 641 [2014]), and to establish that any police-arranged identification procedures were not unduly suggestive (People v. Chipp, 75 NY2d 327, 335 [1990]).

Detective Berisha and Officer Argant testified as to the basis for the defendant's arrest for the July 11, 2023, homicide. This Court found their testimony credible. Several factors established probable cause for the defendant's arrest for the homicide. Those factors include, but are not limited to, Detective Berisha's testimony about the investigation, the videos that were introduced into evidence, and witness statements to Detectives Berisha and Alickaj. In addition, the taxi company provided the detectives with the phone number of the alleged suspect had who [*4]called a taxi after the shooting, which led the police to discover the defendant's name. The taxi company also provided the GPS coordinates of the taxi route taken by the suspect, which resulted in the police obtaining surveillance video from locations in Yonkers. Officer Argant positively identified the defendant as the individual in the surveillance video and still photos, whom he had known for over a year as his probationer. Officer Argant also provided Detective Berisha with the nickname "Tony" for the defendant, which was the writing on the necklace worn by the alleged suspect visible in some surveillance video. The defendant's arguments to the contrary are unavailing. The entirety of the evidence utilized by the police established probable cause.

Since the defendant was taken into police custody based upon his arrest for possessing a firearm on December 8, 2023, the Court's inquiry does not end with its finding of probable cause for the homicide arrest. The Court must also determine if probable cause existed for the defendant's arrest for the firearm. This Court found Detective Mensah's testimony about the circumstances of the defendant's arrest to be credible, and it was corroborated by his body worn camera footage. That testimony and evidence, however, was insufficient to establish probable cause.

According to Detective Mensah, he initially approached the defendant in the vestibule of 3315 Hull Avenue because he saw him and two other individuals standing there and he wanted to know what they were doing. Detective Mensah was very clear that he did not see the individuals doing anything illegal or indicative of criminality. He further testified that when the individuals saw him approach — while they were in the vestibule and the detective was outside walking towards the building from several feet away — the defendant ran up a staircase, one of the individuals turned away from him, and the other apparently did nothing. At this point, while he was still outside, Detective Mensah began chasing the defendant, running into the building up the stairs after him.

Police are authorized to initiate a level one request for information from citizens when there is "an objective, credible reason, not necessarily indicative of criminality" (People v. Moore, 6 NY3d 496, 498 [2006]; see People v. DeBour, 40 NY2d 210, 223 [1976]). Here, Officer Mensah articulated that what led him to approach the three individuals was that they were standing together in the building's vestibule in a high-crime area. In People v. Johnson, 109 AD3d 449 (1st Dept. 2013), a police officer patrolling inside a New York City Housing Authority Building, in a "drug-prone" location, observed a defendant descend stairs into the lobby, freeze and "jerk[] back" upon seeing the officer, and then appear as though he was going to walk back up the stairs. The officer then questioned the defendant about his reason for being there and requested identification. When the defendant moved his hand to retrieve his identification from his pocket, another officer grabbed his arm and put it behind his back, revealing a handgun in his coat pocket. (Id. at 449-450). The First Department, in finding there was not an objective, credible reason for a level one request for information, observed that "[p]resence in a high-crime or drug-prone location, without more, does not furnish an objective credible reason for the police to approach an individual and request information" (id. at 450). Additionally, "an individual's desire to avoid contact with police — even in a high-crime neighborhood — [does] not constitute an objective credible reason for making a level one inquiry" (id.). Thus, here, the defendant's action of running up the stairs upon seeing Detective Mensah, coupled with him simply standing in the vestibule of a building in a high-crime area, did not collectively furnish the police with an objective, credible reason for a level one request [*5]for information.

Even if this Court were to find these circumstances sufficient for Officer Mensah to initiate a level one inquiry, they certainly did not furnish him with a reasonable suspicion that the defendant was involved in a felony or misdemeanor, as would be required to authorize him to forcibly stop and detain the defendant (see Moore, 6 NY3d at 498-499). Officer Mensah specifically stated that he began chasing the defendant before he saw what he described as the defendant "trying to guard something . . . in his waistband area or crotch area." That is, he attempted to forcibly stop the defendant based only on his presence in the vestibule and because he ran away from him.^[FN7] As the First Department stated in People v. Walker, 237 AD3d 102, 108 (1st Dept. 2025), because "[p]olice pursuit of an individual significantly impedes the person's freedom of movement" it is "equivalent to a level three encounter under DeBour, and must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed." Further, "[f]light is insufficient to escalate an encounter when no other circumstances of criminality are present" (id. [internal quotation marks and citation omitted]). Here, the level three police encounter was not justified by the circumstances present.

The initial police approach of the defendant was not based on facts that provided an objective, credible reason for a level one inquiry, nor did they give rise to a level three stop based on a reasonable suspicion that criminality was occurring. The defendant's subsequent flight up the stairs also did not justify his forcible stop and detention by the police. Accordingly, the firearm and narcotics that were recovered, as well as Officer Mensah's body worn camera footage, must be suppressed.^[FN8]

As is apparent from the defendant's videotaped statement, upon being apprised of his Miranda rights, the defendant invoked his right to remain silent. When asked by Detective Berisha if he was willing to answer questions, the defendant responded, "no." When Detective Alickaj then asked, "no?" the defendant shook his head indicating "no." Detective Alickaj followed up with, "you don't want to talk to us?" and the defendant asked "about?" Detective Berisha commented, "good luck, man" and both detectives engaged the defendant in conversation about what he could talk about: "what happened tonight;" "what you were doing." Detective Berisha pointed out neither detective was present during his arrest and told the defendant, "this is a conversation we can have," at which point the defendant told them, he wanted to "see what's up" and "what's going on." Thereafter, Detective Barisha reread the final question on the Miranda card, asking the defendant if he was willing to answer questions. This time, the defendant answered, "yes."

If an individual in custody "indicates in any manner, at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease" (Miranda v. Arizona, 384 US 436, 473-474, 479 [1966]). That includes engaging the individual in conversation intended to convince him to change his mind and waive his right to remain silent (People v. Kollar, 305 AD2d 295, 297 [1st Dept. 2003]), which is what occurred here. The defendant clearly communicated that he did not want to answer questions, which could not have been reasonably interpreted as anything other than a desire to not speak to the police (see People v. Colon, 185 AD3d 1510, 1512 [4th Dept. 2020]). By continuing the interview, the detectives did not "scrupulously honor" the defendant's right to remain silent under the state and federal Constitutions. Contrary to the People's assertion, rereading the final Miranda warning was not necessary "to ensure there was total clarity and defendant was not confused, coerced or pressured to speak to them." Before it was reread, Detective Alickaj asked the defendant if he understood his Miranda rights, and the defendant stated that he did, and he asked him if he wanted them reread, and the defendant stated that he did not. There was "total clarity" in the defendant's initial statement that he did not want to answer questions, and he was not "confused" about his Constitutional rights.^[FN9] The defendant's statement must therefore be suppressed.

In light of this ruling, the Court need not decide whether the defendant's statement is admissible because it was sufficiently attenuated from his illegal arrest.

Suppressed statements may nonetheless be introduced or used at trial on cross examination to impeach a defendant's credibility should they elect to testify, provided the statement was voluntarily made (People v. Harris, 25 NY2d 175 [1969]). The defendant's interview took place shortly after he was taken into custody, was under an hour long, neither physical nor psychological abuse was used, no coercively deceptive promises were made to him, and there was no evidence that he was deprived of food, water, or sleep (see People v. Thomas, 22 NY3d 629, 641-646 [2014]; People v. Guilford, 21 NY3d 205, 212-213 [2013]; People v. Anderson, 42 NY2d 35, 37-41 [1977]). Throughout the interview the defendant appeared comfortable speaking to the detectives. Indeed, the fact that he denied knowledge or involvement in the July 11, 2023, shooting and at one point criticized the detectives for "smirking" at him evinces the interrogation did not "break [the defendant's] will [to] resist self-incrimination" (Guilford, 21 NY3d at 212). Accordingly, under the totality of the circumstances, the Court finds the hearing evidence established beyond a reasonable doubt that the defendant's statement was voluntary.

Officer Argant identified the defendant from surveillance video from School Street in Yonkers from after the incident, a still photo from that video, and a mug shot from a prior arrest. This identification took place on July 24, 2023, approximately four months before the defendant was arrested. It was, among other things, the basis for the issuance of the I-card and wanted poster. Thus, contrary to the People's argument, the attenuation doctrine and the inevitable discovery exception to the exclusionary rule do not apply.

Officer Argant was not a witness to the alleged crime. Rather, he knew the defendant because he had been his probation officer from December 2021 to July 2023. His identification of the defendant from the surveillance video after the shooting is not the type of identification procedure contemplated by CPL § 710.30(1)(b). Non-eyewitness, lay opinion identification testimony related to video surveillance may nonetheless be admissible at trial to "aid the jury in making an independent assessment regarding whether the [person in the surveillance footage] was indeed the defendant" provided there is "some basis for concluding that the witness is more likely to correctly identify the defendant . . . than is the jury" (People v. Mosley, 41 NY3d 640, 647 [2024][internal citation and quotation marks omitted]; see also People v. Purdue, 41 NY3d 245 [2023]). Whether or not Officer Argant should be permitted to identify at trial the defendant from the video is an evidentiary determination. Accordingly, resolution of that issue is deferred to the trial court.

Officer Argant's identification of the defendant from the still photo taken from the surveillance video and from the mug shot photo also appear to fall within the category of "identifications" recognized in Mosley as evidentiary matters, and therefore its admissibility should be determined by the trial court. In any event, the credible evidence at the hearing established that Officer Argant was amply familiar with the defendant prior to viewing the photos. A witness may make an in-court identification when their familiarity with a defendant renders them immune to police suggestion. Upon any claim that an identification is "confirmatory," or that the "suggestiveness (of a police-arranged identification procedure) is not a concern," the People must show "that the witness knows defendant so well as to be impervious to police suggestion" (People v. Rodriguez, 79 NY2d 445, 452 [1992]). Here, Officer Argant had been the defendant's probation officer for approximately a year and a half, and during that time he had over twenty-four, fifteen-to-twenty-minute interactions with the defendant, most of them in-person. Officer Argant was familiar with the defendant's facial features and voice, and he had observed how he walked. Officer Argant was aware the defendant wore a gold necklace with writing that said "Tony," a name he knew the defendant went by. Their regular interactions over the extended period of time established that Officer Argant knew the defendant "so well as to be impervious to police suggestion" (Id. at 452). Thus, the defendant's motion to suppress the two photos is denied because Officer Argant's "identification" of the defendant as his probationer from them was confirmatory.

For all these reasons, the defendant's motion to suppress is granted with respect to the firearm and narcotics recovered upon his December 8, 2023, arrest, as well as Detective Mensah's body worn camera video of the arrest and the defendant's subsequent statement to Detectives Berisha and Alickaj. The court finds, however, that the statement was voluntarily made and may be used for impeachment purposes at trial. The defendant's motion to suppress Officer Argant's identification is denied in part and deferred to the trial court in part.

The Court has considered all other arguments advanced by the parties and finds they do not warrant a different conclusion.

This constitutes the decision and order of the Court.