Supreme Court, Kings County

Decided on October 22, 2025

Ind. No. 75852-22

Deepa Ambekar, J.

[*1]

Defendant is charged by indictment with two counts of murder in the second degree, Penal Law § 125.25 (1), and (2); and two counts criminal possession of a weapon in the second degree, Penal Law § 265.03 (1) (b), and (3).

On July 30, 2025, the court conducted a combined Dunaway, Huntley, and Wade hearing. At the hearing, the People offered the testimony of two witnesses, New York City Police Department (NYPD) Sergeant Daniel Roman (Sergeant Roman), and Detective Alexander Grandstaff (Detective Grandstaff). The People entered into evidence photo array pre-viewing instructions (People's exhibit 1); the photo array (People's exhibit 2); photo array viewing report (People's exhibit 3); audio capturing the photo array procedure (People's exhibit 4); an English language translation of the audio capturing the photo array procedure (People's exhibit 5); a computer file containing 29 pages of photos shown to defendant (People's exhibit 6); and three computer files containing video of defendant's interview/statement (People's exhibit 7). These files containing different angles of defendant's interview recorded contemporaneously are named: (1) Audio Statement William Defendant Interview_-_090_DET_SQD_-_PTZ, (Video PTZ); (2) Audio Statement William Defendant_-_090_DET_SQD_-_Motion, (Video Motion); and (3) Audio Statement William Defendant_Interview_-_090_DET_SQD_-_Flush (Video Flush).

On August 22, 2025, the People submitted their written argument in opposition to [*2]defendant's motion to suppress. On September 17, 2025, defendant submitted his written argument for suppression.^FN1

Findings of Facts

Sergeant Roman has been employed by the NYPD for 16 years. His current assignment is the field intelligence sergeant at Patrol Borough Brooklyn North. He has been at Patrol Borough Brooklyn North since the end of 2022. Prior to that assignment, Sergeant Roman was assigned to the Patrol Services Bureau Public Safety Team, the 79th Precinct as a patrol supervisor, and the 81st Precinct Detective Squad where he spent five years. He was assigned to a number of precincts before the above-mentioned assignments.

On November 12, 2020, Sergeant Roman was assigned to the 81st Precinct Detective Squad as a detective investigator. As a detective investigator he investigated "everything," including domestic violence cases, shootings, robberies, shootings, and homicides. Sergeant Roman was raised in a Spanish-speaking household and can read and write Spanish fluently.

That day, Sergeant Roman was contacted by Detective Yi, who asked Sergeant Roman to conduct a double-blind photo array. Sergeant Roman stated that a double-blind photo array is a photo array with six photographs, where the person that's conducting the procedure is not involved in the investigation of the case.

After being contacted, Sergeant Roman went to the 90th Precinct and spoke with Detective Yi. Sergeant Roman and Detective Yi did not discuss any details of the case. Detective Yi handed Sergeant Roman the photo array with the photo array documentation inside. Sergeant Roman entered the interview room and introduced himself to the witness. Sergeant Roman confirmed that there was no one else in the interrogation room besides the witness and himself. Sergeant Roman then began the double-blind photo array procedure. He and the witness spoke in Spanish. Sergeant Roman testified that the audio of his entire interaction with the witness was recorded. This recording was entered as People's 4.

Sergeant Roman testified that he conducted the photo array by reading the instructions from the photo array form. The Spanish language form was entered into evidence as People's 1.

As indicted in People's 5, the English language translation of People's 4, Sergeant Roman explained the photo array instructions related to an incident that occurred on October 24, 2020. After Sergeant Roman read these instructions, the witness signed the form. Sergeant Roman then showed the witness the photo array. The photo array was entered as People's 2 and contains six color photos of African American males of similar age, complexion and hair length. The witness stated the individual was in position two. The witness memorialized the identification of the suspect by signing beneath the photo that was selected.

Consistent with the double-blind procedure, Sergeant Roman did not have any information regarding the incident location or any suspects in the case. Additionally, Sergeant Roman did not recognize the suspect or know in which position he would be placed in the photo array.

After the witness viewed the photo array, Sergeant Roman left the interview room to get a pen. Sergeant Roman spoke with Sergeant Yi in the hallway, who advised Sergeant Roman to "Write down whatever needs to be written down." While Sergeant Roman was outside the [*3]witness room, no one else entered the room with the witness.

Sergeant Roman then asked the witness a series of questions from the viewing report form. This form is in Spanish and was entered as People's 3. The witness indicated that he recognized an individual in position number two on the photo array. He stated that he recognized that person as a client he picked up and drove from "Quincy/Broadway [to] Flushing/Humboldt." The witness signed the form. Finally, Sergeant Roman asked following questions and received following responses:

"SERGEANT ROMAN: Okay. And to finish this up, just to be sure, you just indicated that you recognize the person in position number two. Correct?

WITNESS: Yes.

SERGEANT ROMAN: Now I'm going to ask you this question, I don't mean to suggest anything, you shouldn't read anything into it. Uh. I ask every witness this question at this point. In your own words, without using numbers or percentages, please tell me how sure you are.

WITNESS: More or less.

SERGEANT ROMAN: More or less?

WITNESS: Uh-huh. I didn't use numbers or percentages.

SERGEANT ROMAN: You cannot use... for example, you cannot say "I am one hundred percent sure."

WITNESS: I can't have a, I mean, you're telling me not to say...

SERGEANT ROMAN: You can't say percentages.

WITNESS: Not percentages.

SERGEANT ROMAN: But you can say... it's not that I'm directing you in any way, but rather using different words. Do you understand me? Without using numbers from one to ten or anything like that. Using your own words, do you understand me?

WITNESS: Yes, that's why I'm telling you, uh. . . more. . . I don't know how to tell you.

SERGEANT ROMAN: Take your time. Think about it. Because that gives us more assurance, you know what I mean? So, you're... I don't know . . .

WITNESS: That's why I'm telling you...

SERGEANT ROMAN: You know where you are... we... from where . . .

WITNESS: It's easier to say for sure if I was so sure.

SERGEANT ROMAN: Exactly.

WITNESS: But you, to describe it in other words . . .

SERGEANT ROMAN: It's difficult, I understand! (LAUGHS)

WITNESS: It's more difficult.

SERGEANT ROMAN: I understand, I understand!

WITNESS: That's why I'm telling you, I kind of understand, I mean, that was more or less the client I picked up at that time.

SERGEANT ROMAN: That was the customer you picked up at that time.

WITNESS: Yes. More or less. That's why I say more or less.

SERGEANT ROMAN: Okay. (CHUCKLES)

WITNESS: True, because... no, no...

SERGEANT ROMAN: I understand, because it's difficult...

WITNESS: . . . evaluate it in another definition.

SERGEANT ROMAN: It's difficult, I understand, I understand. Is that more or less the customer you picked up at that time?

WITNESS: Yes.

SERGEANT ROMAN: (AS HIS TONE SUGGESTS HE IS WRITING WHAT HE IS SAYING) ... who boarded at that time. At that time, excuse me. And you said... you told me that of the six, that is the one.

WITNESS: Of the six, that was the one I became most familiar I picked up that day. Of the six, that was the one I found most familiar to have picked up that day.

After Sergeant Roman read these instructions, the witness signed the form. Sergeant Roman testified that he did not have any further involvement with the witness or with the investigation of the case.

Except for redactions related to the witness' name and other identifying information, Sergeant Roman testified that the photo array and accompanying paperwork entered at the hearing had not been modified or altered from the original paperwork he used during the [*4]identification procedure.

Detective Grandstaff is a retired detective who had previously been employed by the NYPD for over 26 years. Prior to his retirement, he was assigned to Brooklyn North Homicide Squad where he was assigned for approximately 11 years.

On October 24, 2020, Detective Grandstaff, while working in Brooklyn North Homicide, was notified of the shooting death of Ethan Williams, which occurred on that day in the vicinity of 42 Eldert Street in Kings County. As a result, Detective Grandstaff responded with members of his team to assist Detective Yi, the case detective.

On November 2, 2022, Detective Grandstaff was in his office and was advised that defendant William Freeman (defendant) had been taken into custody on a bench warrant following a traffic stop. Detective Yi was out that day, so Detective Grandstaff was directed to speak with defendant.

Detective Grandstaff and Detective Brunelli responded to 90th Precinct where defendant was being held. Upon arrival, defendant was brought to the primary interview room, which has video cameras. Detective Grandstaff did not talk to defendant before he was placed into the interview room. Detective Grandstaff and Detective Brunelli entered the interview room with defendant. No one else entered the room. Neither detective brought a firearm into the interview room.

Detective Grandstaff identified defendant in the courtroom. The People entered People's exhibit 7 which captured the entire video interrogation from three separate camera angles.

At the start of the interrogation (20:02:59), Detective Brunelli read defendant his Miranda warnings, and defendant answered, "Yes" to each question. Throughout the almost four hour interrogation, the defendant was given bathroom breaks, offered food, water and cigarettes. Defendant requested to speak with his mother several times during the interrogation. The detectives acknowledged the request, but did not stop the interrogation to allow defendant to make a phone call.

The court highlights the pertinent portions of People's 7 that it considered in its analysis of defendant's motion.

"DETECTIVE GRANDSTAFF: You've got to let us know what your plan was and what you were thinking that night, Will.

DEFENDANT: [unintelligible]. So what? Do I get a lawyer or something?

DETECTIVE: I'm sorry?

DEFENDANT: Do I get a lawyer or something [unintelligible]?^FN2

Detective Grandstaff: Well, listen, we're here talking to you. We'd like to continue talking to you. Would you like to still talk to us?

DEFENDANT: [unintelligible]"

(21:44:08)

"DETECTIVE GRANDSTAFF: Listen, we got a—we got a lot of stuff. Between video, people looking at it. You know, you asked if you get a lawyer. You're gonna get one at some point down the road. Whatever it is, we want to continue talking to you. You want to continue talking, we'll talk. We'll lay everything out for you, but you've got to start being honest with us. You—you want to see what we're talking about?^FN3

DEFENDANT: [mumbles]"

(21:48:14)

DETECTIVE GRANDSTAFF: Listen, you want us to put some stuff together, we'll continue talking? Do you want us to put it together? And show you some clearer stuff? You want to do that?

DEFENDANT: What?

DETECTIVE GRANDSTAFF: Like I said, we'll put some stuff together, we'll show you some stuff, we'll continue to talk? You want to get to the bottom of this?

DEFENDANT: I think I need a lawyer, man.

DETECTIVE GRANDSTAFF: I'm sorry?

DEFENDANT: I think—I said I think I need a lawyer to get to the bottom of this. 'Cause y'all are accusing me of something [unintelligible].

DETECTIVE GRANDSTAFF: You 'think?' Or you want to talk? You think you need a lawyer or you want to talk? Well, it's up to you. This is for your benefit believe it or not — us sitting here. What do you want to do? You want to talk?

DEFENDANT: I'm trying to figure out what's going on. [unintelligible]. I'm trying to figure out what's going on."^FN4

(21:57:13)

DEFENDANT: Bro, I swear to God, I will talk to y'all as long as I [unintelligible] lawyer. You got my word.^FN5

DETECTIVE GRANDSTAFF: Well, I'll be straight with you. It's just—it's not typically something that we do. Protocol. Alright? And I—I hear—I hear what you're saying. Can we get to the bottom of this?

(22:43:55)

"DETECTIVE GRANDSTAFF: Your DNA is on the gun. That gun matched to the bullet that killed this kid. Now—now we gotta know what was in your head that night. You gonna tell your story, Will?

DEFENDANT: Should I have a—I want a—I want a—I want a lawyer or something like that.

DETECTIVE GRANDSTAFF: I'm sorry?

DEFENDANT: I shouldn't be talking about nothing without a lawyer.

DETECTIVE GRANDSTAFF: Listen, that's—

DEFENDANT: [unintelligible] . . . 'cause I'm, I'm still trying to . . . [unintelligible].

DETECTIVE GRANDSTAFF: Well listen, if that's something you feel, or you think, or you want a lawyer, that's it. That's your option. Like I told you, from our point of view, we're talking here. We're trying to get to the bottom of this.

DEFENDANT: I understand that.

DETECTIVE GRANDSTAFF: Alright. Look at me, please. We're trying to get to the bottom of this. Do you want to tell your story? This is the last chance to talk to us, Will. To put your story out there."

(23:09:30)

DEFENDANT: What happens if I—if I have my lawyer come here, can we talk about that one?

DETECTIVE GRANDSTAFF: I'm sorry?

DEFENDANT: I said, if I—I'm sorry. If I talk—if I just ask for my lawyer?^FN6

DETECTIVE GRANDSTAFF: Well, here's what it is. If you're asking us for a lawyer, we're not going to talk to you anymore, okay? We can't tell—we're not gonna get your side of the story. We're going to have to proceed with what we know about this case right now. Okay, so your story doesn't get out there at this point. Did that answer your question?

DEFENDANT: So it'd just be—so, so, so it would just be . . .

DETECTIVE GRANDSTAFF: It would be based on the evidence. Based on all the video, based on the DNA, based on the ballistics match, based on the other stuff we talked about, right? Based on the cars, and this and that.

(23:12:07)

DEFENDANT: But I—I do want—I'm saying, I do want to know, like. Alright, if I say, if I say right now, I want my lawyer, and I go to court . . .

Detective: [mmhm]

DEFENDANT: What's it gonna be like?

DETECTIVE BRUNELLI: If you say you're done talking and you want a lawyer, we're not going to talk to you anymore. If that's what you're asking. If I'm—If I'm mishearing you, let me know. But if you were to ask for a lawyer right now, and say you were done talking, we're done talking. Then you'll get a lawyer eventually. Now, from my point of view and from my partner's point of view, we don't get the whole story.

DEFENDANT: No, no, no—I'm just saying, like . . .

DETECTIVE GRANDSTAFF: Well, see, this is a—it's a murder investigation, but it doesn't have to be. It doesn't have to be a murder investigation, you understand, but it's gotta come from you. Right? We can't fill in the blanks for you. We can't speak for you. Even though this is a homicide—murder investigation, it doesn't have to be. But it's gotta come from you. This is the point that we're trying to make . . .

DEFENDANT: Yeah but, yeah but [unintelligible]. I'm not saying that I'm asking for a lawyer. I'm just saying, like, [unintelligible] charge me with?

(23:20:09)

DEFENDANT: So, so, if uh—I say, 'Give me a lawyer," I'm still getting charged? I'm going to the courthouse, and you'll charge me with that?

Detective: If you want—you've mentioned, or you're doing hypotheticals. If you want a lawyer, that's your right, that's your option.

DEFENDANT: No, I'm saying though, that like, I'm saying though, like, even like, even with that, I'm just . . .

DETECTIVE BRUNELLI: Your lawyer—a lawyer can't stop you from getting charged. You understand that, right?

DEFENDANT: I know that, I know, I know.

DETECTIVE BRUNELLI: So a lawyer can't stop what's happening.

DEFENDANT: I know.

DETECTIVE GRANDSTAFF: The only thing you asking for a lawyer can stop is us having this conversation.

DEFENDANT: But everything after that is still the same, same, same?

DETECTIVE GRANDSTAFF: The evidence—the DNA is the DNA. You could have five lawyers, it's not gonna change that. You could have ten lawyers, that's not gonna change the video. You can get every lawyer in Brooklyn, it's not gonna change the people who picked you out . . .

(23:27:49)

Conclusions of Law

A. Credibility

Having observed the testimony of Sergeant Roman and Detective Grandstaff, the court concludes that their testimony was credible.

B. Dunaway

At a Dunaway hearing, the People have the initial burden of going forward to show the legality of the police conduct. The defense then has the ultimate burden of proving by a preponderance of the evidence that the police acted illegally (People v Berrios, 28 NY2d 361 [1974]).

The existence of probable cause to arrest requires information which "would lead a reasonable person who possesses the same expertise as the arresting officer to conclude, under the circumstances, that a crime is being or was committed" by the defendant (People v McRay, 51 NY2d 594, 602 [1980]; People v Cooper, 38 AD3d 678, 679 [2d Dept. 2007]; see also CPL [*5]140.10[l][b]).

The People argue that defendant was arrested pursuant to a bench warrant stemming from a Manhattan matter. As such, there is no Dunaway issue and defendant was lawfully apprehended.

Defendant does not address the Dunaway issue in his written argument for suppression.

The court agrees with the People that the warrant provided probable cause for defendant's arrest (People v Fulton, 257 AD2d 774, 775 [3d Dept 1999] [Defendant's arrest on outstanding warrant for his arrest on a felony charge of driving while intoxicated provided probable cause for his arrest even if police were more interested in questioning him about a different and graver crime] citing People v Reynolds, 240 AD2d 517, 518 [2d Dept 1997] [People had probable cause to arrest on attempted burglary charge and arrest not a "sham" even if police were interested in questioning the defendant about a murder]).

Accordingly, the court finds that officers had probable cause for defendant's arrest. Defendant's motion to suppress his evidence as fruit of an unlawful arrest is denied.

C. Huntley

A confession or admission by the defendant is admissible at trial only if the People establish the voluntariness of each statement beyond a reasonable doubt (CPL 60.45 [1]; People v Witherspoon, 66 NY2d 973, 974 [1985]). If the People meet their burden, the defendant then

bears the burden of persuasion (see People v Santos, 112 AD3d 757, 758 [2013]; People v Aveni, 100 AD3d 228, 237 [2012]).

A statement is deemed to be "involuntary" if it was coerced by the "use or threatened use of physical force upon the defendant or another person, 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" (CPL 60.45 [2] [a]); accord People v Jin Cheng Lin, 26 NY3d 701, 719 [2016] ["statements must not be products of coercion, either physical or psychological, meaning that they must be the result of a free and unconstrained choice by their maker"] [internal citations and quotations omitted]). In a challenge to the voluntariness of a statement, the court must examine the totality of the circumstances under which the statement is made, including the characteristics of the accused and the circumstances under which the statement was made (see People v Guilford, 21 NY3d 205, 208 [2013]).

A statement obtained by law enforcement may also be deemed involuntary if obtained by certain improper promises or statements of fact, or in violation of the State or Federal constitution (CPL 60.45 [2] [b][i], [ii]). One of those constitutional rights, the privilege against self-incrimination, is protected by the Miranda rule, which is triggered when a suspect is subject to a "custodial interrogation" (see People v Berg, 92 NY2d 701, 704 [1999]). While there is no specific script for Miranda warnings, prior to commencing a custodial interrogation, law enforcement, at minimum, must advise and individual of (1) the right to remain silent; (2) that anything defendant says during the interrogation can and will be used against them in court; (3) that he has a right to the presence of an attorney; (4) and that if he is indigent a lawyer will be appointed to represent him (People v Dunbar, 24 NY3d 304, 313-14 [2014] [internal citation and quotations omitted]).

Furthermore, "[t]he right to counsel indelibly attaches as soon as 'a defendant in custody unequivocally requests the assistance of counsel' " (People v Harris, 177 AD3d 1199, 1203 [2019], lv denied 35 NY3d 970 [2020], quotingPeople v Glover, 87 NY2d 838, 839 [1995]; see [*6]People v Fiorino, 130 AD3d 1376, 1379 [2015], lv denied 26 NY3d 1087 [2015]). Police may not continue to question a suspect in custody who unequivocally invokes the right to counsel, and any purported waiver of the right thereafter is ineffective if it is made without counsel present (see People v Grice, 100 NY2d 318, 320-321 [2003]; People v Esposito, 68 NY2d 961, 962 [1986]). "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retain or appointed counsel" (Miranda v Arizona, 384 US 436, 475 [1966] citing Escobedo v Illinois, 378 US 478, 490 [1964]).

"Whether a particular request is or is not 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" (People v Glover, 87 NY2d at 839 [citations omitted]; accord People v Henry, 133 AD3d 1085, 1086 [2015]; People v Jemmott, 116 AD3d 1244, 1246 [3d Dept 2014]).

The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney (Jemmott, 116 AD3d at 1247 citing Davis v United States, 512 US 452, 459 [1994]). While "a statement that is merely a forewarning of a possible, contingent desire to confer with counsel rather than an unequivocal statement of [a] defendant's present desire to do so is not sufficient to invoke the right to counsel" (People v Slocum, 133 AD3d 972, 975 [2015] [internal quotation marks and citations omitted], appeal dismissed 29 NY3d 954 [2017]), phrases such as "I think" or "maybe" do not necessarily establish that a request for counsel is uncertain or equivocal (see Esposito, 68 NY2d at 962; People v Jones, 21 AD3d 429, 429 [2005], lv denied 6 NY3d 755 [2005]).

Defendant moves to suppress his statements made during his videotaped interrogation. Defendant first contends that he invoked the right to counsel numerous times during the interview, and that any statement made thereafter without counsel present should be suppressed (see, People v Skinner, 52 NY2d 24; People v Cunningham, 49 NY2d 203). Defendant further contends that his statements were the product of psychological coercion, which renders them involuntary under the law.

The People oppose suppression, contending that although the defendant mentioned an attorney several times, he did not unequivocally invoke his right to an attorney. The People argue further that defendant's statements were voluntarily made as they followed an intelligent, knowing, and voluntary waiver of his Miranda rights and were not the product of coercion. Therefore, the defendant's motion to suppress the statement should be denied.

1. Request for Counsel

a) Equivocal Statements

(1) "Do I get a lawyer?"

Starting at 21:44:08, defendant asks detectives twice whether he "gets a lawyer." Detective Grandstaff advises defendant that the detectives would like to continue talking and defendant responds, "Yeah."

The court concludes that these statements merely constituted a contingent desire to speak to an attorney and did not constitute an unequivocal request for an attorney, such that his right to counsel did not attach and the statement he made to the police was not in violation of the Federal [*7]and State Constitutions (People v Santiago, 133 AD2d 429, 429 [2d Dept 1987], affd, 72 NY2d 836 [1988] [In context of interview, "Will you supply [me with a lawyer] now so that I may ask him should I continue with this interview" not unequivocal]).

b) Unequivocal Statements

(1) "I think I need a lawyer"

Starting at 21:57:13, Detective Grandstaff indicates that he could "get some stuff together" referring to additional evidence implicating defendant. In response, defendant states "I think I need a lawyer." Detective Grandstaff asks "I'm sorry?" and the defendant clarifies "I think — I said, I need a lawyer to get to the bottom of this, 'cause y'all are accusing me of something . . . [unintelligible]." To these statements, Detective Grandstaff questions whether defendant "thinks" he needs an attorney or is willing to talk, because talking to the detectives is to his benefit. Defendant responds, that he is trying to "figure out what's going on."

In People v Porter, 9 NY3d 966, 967 (2007), the Court of Appeals held that a suspect's statement, "I think I need an attorney," together with the interviewing officer's note that the defendant was "asking for an attorney," constituted an unequivocal invocation of the right to counsel. The Court further noted, however, that in some circumstances, language identical or similar to that used in this case may be deemed equivocal. Likewise, in Wood v Ercole, 644 F3d 83, 91 (2d Cir 2011) United States Court of Appeals, Second Circuit held that the phrase "I think I should get a lawyer" evinced an unambiguous request for an attorney. The court reasoned that to invoke the right to counsel "a suspect must speak clearly enough that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney" and the suspect's statement, which evidenced "no internal debate" was sufficient (id. at 91 [internal citation and quotation omitted]). Both the Court of Appeals and the Second Circuit examined the surrounding circumstances of the interrogation in its determination.

While the People acknowledge Porter and cite People v Bethea, 159 AD3d 710 (2d Dept 2018), in which the Second Department held that the defendant twice stating, "I think I need a lawyer," constituted an unequivocal request for counsel. The People contend that the instant case is distinguishable. They argue the phrase "to get to the bottom of this" indicated a hypothetical request for an attorney to conduct an investigatory and fact-finding mission to interpret the DNA result and not a request to safeguard his rights. The People, however, fail to consider the defendant's very next sentence, in which he states he thinks he needs a lawyer "because [the detectives] are accusing him of something." That subsequent statement makes clear that the request was not a hypothetical one but was made to safeguard his rights since he was being accused of a crime.

Furthermore, the People argue that Detective Grandstaff did not understand defendant's statement as a request for counsel because he sought clarification, asking defendant if he "thinks" he needs an attorney or if he is willing to talk. The relevant inquiry, however, is not whether Detective Grandstaff interpreted the statement to be a request for an attorney, but rather whether a reasonable police officer would have understood the statement in question as an unequivocal invocation of counsel (Jemmott, 116 AD3d at 1247).

Law enforcement officers hearing similar language and requests have perceived those statements to be an unequivocal request for an attorney (see Davis v United States, 512 US 452, 455 [naval investigative agents ceased questioning the defendant when he said, "I think I want a lawyer before I say anything else"]; Porter, 9 NY3d at 967 [officer wrote down that the [*8]defendant asked for a lawyer when he said, "I think I need an attorney"]; Wood, 644 F3d at 83 [in response to the phrase "I think I should get a lawyer," a detective provided the defendant with a telephone and left the room]; Cannady v Dugger, 931 F2d 752, 755 [court noted that officer understood that the defendant was requesting counsel when he said, "I think I should call my lawyer," because the officer pushed the phone toward the defendant and waited for him to make a call]; People v Harris, 93 AD3d 58 [2d Dept 2012] affd, 20 NY3d 912 [2012] [detective ended questioning and permitted suspect to leave when he stated, "I think I want to talk to a lawyer and I want to go"]; People v Wood, 40 AD3d 663, 664 [2d Dept 2007] [finding that the hearing court failed to suppress the defendant's statement after he told the police "I think I should get a lawyer" and then subsequently made a statement]).

While Detective Grandstaff may not have considered the defendant's statement as an unequivocal request for an attorney, to permit the admissibility of a defendant's statements based solely on a detective's claimed failure to understand a request for counsel would effectively allow law enforcement to unilaterally nullify a defendant's constitutional right - simply by asserting subjective confusion.

(2) "I want a lawyer or something like that"

Starting at 23:09:30, Detective Grandstaff confronts defendant with the fact that defendant's DNA is on the gun matching the bullet that struck and killed the victim. Defendant responds, "I want a lawyer or something like that." Detective Grandstaff asks, "I'm sorry?" and defendant responds, "I shouldn't be talking about nothing without a lawyer." Detective Grandstaff tells him if the defendant wants a lawyer, "that's his option" and advises him that they are talking, and this is defendant's last chance to get his story out.

The Second Department has found similar statements to be an unequivocal request for an attorney (see People v Stroh, 63 AD2d 326 [2d Dept 1978], affd, 48 NY2d 1000 [1980]). In Stroh, the defendant asked for "a lawyer or a priest." The detectives continued questioning after contacting a priest, and the defendant subsequently confessed. The court reasoned that the Miranda warnings and the waiver of rights are fundamental to protecting an individual's Fifth Amendment rights, and that their recitation is not merely a perfunctory formality preceding interrogation. The Stroh court found that proper adherence to the spirit of Miranda would have been to clarify his rights at that point and reiterate that if he wanted, an attorney one would be appointed to him, and he could remain silent until the attorney arrived (id. at 329).

Moreover, the court finds that the juxtaposition of "or something like that" does not render defendant's statement a mere inquiry. In fact, when Detective Grandstaff asks for clarification, defendant explains "I shouldn't be talking about nothing without a lawyer" clarifying his previous statement requesting a lawyer. Furthermore, Detective Grandstaff's response that if defendant wants a lawyer, "that's his option" demonstrates that the detective understood that defendant was requesting a lawyer. Indeed, defendant makes these statements approximately three-and-a-half-hours after the start of the interrogation and the giving of Miranda warnings. Proper adherence to the spirit of Miranda would have been to again provide defendant with his Miranda rights and reiterate that if defendant wanted an attorney, one could be appointed to him.

These statements, viewed in context of the defendant's two earlier statements requesting an attorney, should reasonably been understood by detectives as a request for an attorney and therefore would constitute an unequivocal request for counsel (People v Carrino, 134 AD3d 946, [*9]950 [2d Dept 2015] see also Harris, 93 AD3d at 68 citing Jones, 21 AD3d 429 [finding that a reasonable detective should have understood that the defendant was requesting a lawyer after stating "maybe you should talk to my attorney about it," "maybe I should talk to my attorney," and "I think maybe I should talk to my attorney"]).

2. Revocation of Request for Counsel

a)"I'm not saying that I'm asking for a lawyer."

Starting at 23:12:07, defendant asks "What happens if I — have my lawyer come here, can we talk about that one?" He repeats himself asking what happens if he asks for a lawyer. Detective responds in sum and substance that if he asks for an attorney they would be done talking, and they do not get to hear his side of "the whole story." Continuing on to 23:20:09, Detective Grandstaff seeks to get defendant to speak, telling him that his statement could lead to the charges being lessened, presumably because he would tell detectives that the shooting was accidental. In response, defendant states, "I'm not saying that I'm asking for a lawyer. I'm just saying, like, [unintelligible] charge me with?"

The People rely on People v Hayes, 127 AD2d 608, 608 [2d Dept 1987] to argue that detectives made proper inquiry to clarify defendant's invocation of counsel. As discussed, supra, while the police may make inquiry, adherence to the principles underlying Miranda require, at a minimum, that law enforcement clarify the defendant's rights at that moment and reaffirm that he was entitled to counsel (Stroh at 330). Moreover, detectives should not "attempt[] to secure, and eventually secur[e], a waiver of the defendant's constitutional rights after he had asked to speak with counsel (People v Jackson, 41 NY2d 146, 151 [1976], abrogated on other grounds by Horton v California, 496 US 128 [1990])

To the extent the People rely on People v Glover, 87 NY2d 838, to argue that defendant negated his initial request for counsel and rendered his request equivocal, the People's reliance is misplaced. In Glover, the defendant informed the police that he wanted to call a friend to get a lawyer and then requested his mother. In the 30 to 60 seconds afterwards, as the police officer was dialing the number, defendant said he did not want a lawyer (id. at 839). In the instant case, defendant did not instantly negate his request; instead, he stated well over an hour after his initial request for an attorney that he was not requesting an attorney. In the interim, detectives ignored defendant's request for an attorney and continued to talk to him, persuading him to make a statement.

Finally, this court has found two of his prior statements were unequivocal requests for an attorney (see supra subsections [b] [1], [2]). Once a suspect in custody clearly asserts the right to counsel, the police must cease questioning, and any subsequent waiver of that right is invalid unless made in the presence of counsel. (see Grice, 100 NY2d at 320-32). Therefore, any subsequent statement made by defendant rescinding his request for an attorney were not valid outside the presence of counsel.

3. Voluntariness

While the court suppresses defendant's statements following his unequivocal request for an attorney, the court does not conclude that any statements prior to that time should be suppressed under CPL 60.45. The detectives' comments that it would be beneficial to the defendant if he cooperated did not constitute a promise of leniency which would render the waiver and statement involuntary (People v Rufino, 293 AD2d 498, 499 [2d Dept 2002]).

Accordingly, the court concludes that the defendant unequivocally invoked his right [*10]to counsel and the police continued to question him in violation of his State and Federal constitutional rights. Therefore, statements made on or after 21:57:13 should be suppressed. The court finds any preceding statements were voluntary and are not suppressed.

D. Wade

When a defendant challenges an identification procedure as unduly suggestive, the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness (see People v Coleman, 73 AD3d 1200 [2nd Dept 2010]; People v Stephens, 143 AD2d 692 [2nd Dept 1988]). Once that is done, the burden shifts to the defendant to show that the procedure was unduly suggestive (People v Chipp, 75 NY2d 327, 335 [1990]). If the People fail to sustain their initial burden, however, the burden of establishing that the identification was unduly suggestive never shifts to the defendant (see People v Ortiz, 90 NY2d 533, 538 [1997])

"[U]nduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused" (Chipp, 75 NY2d at 335). While "[t]here is. . . no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance" (People v Brown, 89 AD3d 1032, 1033 [2nd Dept 2011], citing Chipp, 75 NY2d at 336), the other individuals in the lineup should sufficiently resemble the defendant so that there is no substantial likelihood that the defendant would be singled out for identification (see People v Jean-Baptiste, 57 AD3d 566, 567 [2nd Dept 2008]); People v Valdez, 204 AD2d 369 [2nd Dept 1994]). On the other hand, "where a suspect is the only one in a lineup wearing the same 'distinctive clothing' as described by a witness to the crime, a lineup is unduly suggestive as a matter of law" (People v McBride, 14 NY3d 440, 448 [2010]).

Defendant, while not claiming that one of the photos in the array can be clearly singled out, argues that the photo array should be suppressed because the witness's lack of confidence and limited opportunity for observation, given his role as a livery driver, render the identification unreliable.

The People first argue that the procedure utilized was not unduly suggestive as it was blinded, and Sergeant Roman had no way to explicitly or implicitly suggest that the witness choose a particular person. The People next argue that the makeup of the photo array itself was not suggestive as it depicted persons sufficiently similar in appearance to defendant. Finally, the People argue that any perceived uncertainty is not a bar against admissibility at trial.

Sergeant Roman administered the array, reading the appropriate instructions included on the photographic array previewing instruction sheet to the witness. The witness identified the defendant in the photograph array with certainty and signed the array. Such a record is sufficient to satisfy the People's initial burden of showing that the photograph array was properly administered (People v Legall, 176 A.D3d 867, 868 [2nd Dept 2019]; People v Castello, 176 AD3d 730, 732 [2d Dept 2019]; People v Busano, 141 AD3d 538, 540—41 (2d Dept 2016); People v Ashby, 289 AD2d 588 [2d Dept 2001]). Furthermore, the array was administered according to a procedure which comported with today's generally accepted standards for a non-suggestive photograph array and renders evidence of the array admissible at trial (see CPL 60.25 [1] [c], 60.30).

In addition, the court finds that defendant and the fillers sufficiently resembled each other.None of the subjects of the array were so distinctive from each other as to be unduly suggestive. Therefore, the court finds that the photo array was not unduly suggestive as it did [*11]not create a substantial likelihood that the defendant would be singled out.

The court finds that the People have met their initial burden of establishing the reasonableness of the police conduct and the lack of any undue suggestiveness and defendant has failed to show that the procedure was unduly suggestive. Any issue regarding the reliability of the witness identification is reserved for trial.

Accordingly, the court finds that pretrial identification procedure utilized in the instant case was not unduly suggestive. Defendant's motion to suppress the identification by the civilian witness is denied.

The foregoing constitutes the Decision and Order of the court.

Dated: October 22, 2025

Kings County, New York

Hon. Deepa Ambekar