People v Hernandez

Criminal Court of the City of New York, Bronx County

Decided on May 4, 2026

Docket No. CR-013235-25BX

Scott M. Krompinger, J.

The defendant Francisco Hernandez ("Defendant") stands charged with driving while intoxicated (Vehicle and Traffic Law [VTL] § 1192 [3]) and other related charges. A combined Mapp/Wade/Huntley/Dunaway hearing commenced before the undersigned on March 2, 2026, and concluded on March 3, 2026.

At the hearing, the People called one witness: P.O. Estevez Peralta, shield #18190, 42nd Precinct. Defendant did not call any witnesses. The court accepted into evidence, without objection: People's Exhibit 1A (P.O. Peralta's body-worn camera [BWC] footage), People's Exhibit 1B (the Intoxicated Driver Testing Unit [IDTU] video), and Defendant's Exhibit A (screenshot from Sgt. Harold Mauras's BWC footage).

Based on the evidence adduced at the hearing, the arguments set forth in the parties written post-hearing submissions, the court file, and relevant legal authority, the court makes the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

The court finds PO Peralta credible and credits his hearing testimony on all material points. The court also finds as fact all events depicted in the video footage and makes the [*2]following specific findings of fact.

P.O. Peralta has been employed with the NYPD for over two years and assigned to the 42nd Precinct for 1 ½ years. In his role as an NYPD officer, he has made approximately 20 arrests and has been involved in approximately 40 arrests. Ten to fifteen of those arrests involved incidents where the defendant was driving under the influence, and several involved matters where the defendant appeared to be intoxicated.

On May 7, 2025, at approximately 12:33AM, P.O. Peralta was working as a NYPD police officer assigned to work with a partner, P.O. Mino. Officers Peralta and Mino were dressed in full uniform and traveling in a marked patrol vehicle. P.O. Mino was driving the vehicle.

The officers received radio runs for a 911 call for help, or a "10-10 call for help with someone" in front of 1348 Fulton Avenue in the Bronx. The "body of the job" reported "it was someone with a handgun in there that was driving while intoxicated, possibly intoxicated in a white vehicle" and hitting parked cars. The initial report was a "53 which is a car collision," and later, the code changed to "a 10-10 call for help with a firearm." When they received the radio runs, the officers were approximately five blocks away from the incident address it took approximately five minutes to get there.

When the officers arrived in the vicinity of 1348 Fulton Avenue, P.O. Peralta observed a stationary white pickup truck with its headlights on, parked in an obscure manner. It was blocking a driveway, and the rear end of it was partially blocking the street. It was the only vehicle in the vicinity that had its lights on. The other vehicles in the area were off and parked.

Before approaching the white pickup truck, the officers stopped their marked patrol vehicle in the middle of the street. The street had one lane of traffic. The officers approached the white vehicle "aggressively" since, due to the nature of the call, they were expecting a safety concern. But they did not draw their weapons. They observed Defendant behind the steering wheel. No one else was in the truck.

P.O. Peralta's BWC footage shows that immediately upon exiting their marked patrol vehicle, the officers approach the Defendant's vehicle and point a flashlight at its driver's side window. The officer appears to ask, "what's going on, boss?" As they continue to approach the officer tells Defendant to "show me your hands." Defendant has his hands raised but then they are lowered momentarily as he appears to unlatch the driver's side door, which begins to open. The officer again orders Defendant to show his hands. His hands then immediately raised again with the door partially open. Defendant then complied with the officers' direction to exit the car. He appears to have an object in his right hand. The officers then direct Defendant to put his hands on the car. Defendant places his hands behind his back. The officers order him again to place his hands on the car. Defendant places his hands on the roof. As he does so, P.O. Mino touches Defendant's left arm and guides it up to the roof.

They then began to ask Defendant questions. They ask "what's going on tonight, boss? What happened?" Defendant responds in sum in substance that he "hit a car." P.O. Peralta asks where did he hit the car and "who called? Do you call?" The officers then ask whether Defendant is OK and whether he takes medication. Defendant confirms that he is okay but does not answer the question about medication. P.O. Peralta asks again whether he needs an ambulance or takes medication — noting he "seems a little off." The officers then ask if Defendant has been drinking tonight, and he does not respond. After some time passes, P.O. Peralta asks whether he can speak, and what his name is. P.O. Mino asks whether he has ID. [*3]After no response, the officers ask "you said you hit a car, right? Which car was it?" Again, there is no response. At this point, other officers arrived on scene including Sgt. Mauras. The officers surround Defendant. P.O. Peralta was standing next to him, and possibly five total officers were around him. He and P.O. Mino were first to arrive on scene, then Sgt. Mauras, then P.O. Troncoso, then P.O. Calderon. They arrived in multiple police cars. P.O. Peralta asks "was it a parked car that you hit?" P.O. Peralta then asks Defendant to "cooperate with us" even though he understands Defendant "doesn't want to speak." P.O. Peralta asks for Defendant's ID, insurance, and registration.

P.O. Peralta observed that Defendant had watery eyes, slight redness in his eyes, and unable to balance himself without putting weight on the truck. During questioning his voice at the beginning was slightly unclear. The officer did not smell alcohol on Defendant's breath. However, he acknowledged that the observations he made were oftentimes associated with intoxication.

At around the 5:11 mark of P.O. Peralta's BWC —about four minutes after the officers first encountered Defendant — an officer questions Defendant in Spanish. Defense Exhibit A, a screenshot taken from Sgt. Mauras's BWC, depicts Defendant and four officers on the scene.

P.O. Peralta testified that the officer was asking Defendant what happened, and he said he hit a car. Sgt. Mauras then is seen on the BWC. He asks Defendant to turn around and look at him. Sgt. Mauras shines a flashlight in his face and asks, in Spanish, if he has been drinking and what amount. Defendant says, "four beers" and in sum and substance, "I drank three or four beers." P.O. Peralta did not read Defendant his Miranda rights before asking the questions because he was not in custody- the officers were only conducting an investigation at the time. Defendant is asked for his ID. After going through his wallet for some time, Defendant cannot produce it. P.O. Peralta observed Defendant's appearance, demeanor and body language, and physical condition, and suspected that Defendant was driving while intoxicated.

The officers spoke to the 911 caller/informant, who was at the scene about 20 feet south of where Defendant was standing. The informant stated that he was inside and heard a "crunching noise" outside. He saw that Defendant had parked his car diagonally in such a way that it damaged the call parked vehicle. The informant then felt the driver of the car might be intoxicated and thought he might leave the scene without waiting for police. So, Defendant agreed to give informant his ID and allow informant to move Defendant's vehicle. The informant was the one who "muscled" Defendant's vehicle into the position it was in when police arrived. The informant also told P.O. Peralta that there was a woman who arrived at the scene and grabbed a brown paper bag from the truck. He didn't see what was in the bag, but it may have been a Monster energy drink. The informant did not otherwise know what was in the bag.

The informant identified Defendant to P.O. Peralta by pointing in Defendant's direction as they were speaking. The informant also provided Defendant's driver's license. At this time, P.O. Peralta and informant were about 20 feet apart. The informant made this identification about 25 minutes from the time the officers first received the radio runs concerning this incident.

P.O. Peralta observed a dent on the passenger rear-side fender of a parked vehicle that was located opposite 1348 Fulton Avenue. Right in front of the address, there was a red car that looked like he had minor scratches on the driver's side, and the tire was repositioned facing northeast. Defendant's vehicle had damage to its front passenger side.

P.O. Peralta ultimately placed Defendant under arrest for driving while intoxicated. He [*4]did not ask Defendant any further questions after the arrest and while Defendant was being transported to the precinct.

II. CONCLUSIONS OF LAW

Mapp/Dunaway Hearing

At a Mapp/Dunaway hearing, the People bear the burden of going forward to establish the legality of police conduct in the first instance (see People v Berrios, 28 NY2d 361, 367 [1971]; People v Pettinato, 69 NY2d 653 [1986]; People v Carmona, 233 AD2d 142, 144 [1st Dept 1996]; People v Rojas, 163 AD2d 1, 2 [1st Dept 1990]; see generally Dunaway v New York, 442 US 200 [1979]). Once that burden of production is met, the defendant has the ultimate burden of proving, by a preponderance of the credible evidence, that the arrest was not based on probable cause or that the police conduct was otherwise illegal (Berrios, 28 NY2d at 367; People v Harris, 192 AD3d 151, 158 [2d Dept 2020]). Probable cause to arrest a person exists when "[it] appear[s] to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice" (People v Carrasquillo, 54 NY2d 248, 254 [1981]). Physical evidence obtained illegally is inadmissible at trial (see Mapp v Ohio, 367 US 643 [1961]). Dunaway requires any evidence to be suppressed, be it statements or physical evidence, obtained as a result of an unlawful police seizure (Dunaway, 442 US at 218-219; People v Jennings, 54 NY2d 518, 522 [1981]).

When evaluating the propriety of police encounters when an officer is acting in a law enforcement capacity, "the court must determine whether it was justified at its inception and reasonably related in scope to the circumstances at the time" (People v Walker, 237 AD3d 102, 105 [1st Dept 2025], citing People v De Bour, 40 NY2d 210, 215 [1976]). The Court of Appeals set forth a graduated four-level test when evaluating the propriety of police-initiated street encounters (id.):

"level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime"

(People v Moore, 6 NY3d 496, 498-99 [2006], citing De Bour, 40 NY2d at 223). "Any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions" (De Bour, 40 NY2d at 233). Courts are required to concentrate on whether the police action "was reasonable at the time in view of the totality of the circumstances" (People v Stephens, 47 AD3d 586, 588-89 [1st Dept 2008], lv denied, 10 NY3d 940 [2008]). "To that end, and in recognition of this analysis as one of the totality of the circumstances, '[d]iscrete analysis of each factor is inappropriate as the officers are confronted with only the complete set of circumstances'" (People v Torres, 232 AD3d 146, 152 [1st Dept 2024], quoting People v Carvey, 226 AD2d 193, 193-94 [1st Dept 1996], aff'd, 89 NY2d 707 [1997]).

This Court initially concludes that the officers' first encounter with Defendant constituted a level three forcible stop and detention. "Whether a police intrusion has amounted to a forcible stop and detention turns on whether there has been 'a significant interruption with an individual's liberty of movement'" (People v Loper, 115 AD3d 875, 878-79 [2d Dept 2014], quoting De Bour, 40 NY2d at 216; see also People v Cantor, 36 NY2d 106, 111 [1975]; People v Martinez, 80 NY2d 444, 447 [1992]).

Upon arriving at the scene, the officers approached Defendant's stationary pickup truck. They immediately asked him to show his hands. Defendant's hands appear raised but then lower from view as he opens the driver's side door. The officers again direct him to raise his hands while the door is unlatched, and then they order him to exit the vehicle. Defendant exited the vehicle with his hands raised. After directives from officers to place his hands on the vehicle, Defendant briefly puts his hands behind his back, then places his hands on the roof of the truck. P.O. Peralta conceded that his partner "guided" Defendant's arms while directing him to place his hands on the roof. It is settled that, "an 'officer's request that [a person] exit [a] parked vehicle elevate[s] the situation to a level three encounter under De Bour"' (People v Taylor, 255 AD3d 1202, 1203 [4th Dept 2024], citing People v Wofford, 115 AD3d 1332, 1333 [4th Dept 2014], lv denied, 24 NY3d 966 [2014]; People v Atwood, 105 AD2d 1055, 1055 [4th Dept 1984]; and citing generally, People v Harrison, 57 NY2d 470 475-76 [1982]; see also People v Creary, 236 AD3d 672, 674 [2d Dept 2025]; People v Thomas, 275 AD2d 276 [1st Dept 2000]).

The police conduct did not elevate to a de facto arrest. The applicable standard is "whether a reasonable person, innocent of any crime, would have believed he was arrested in defendant's position" (People v Robinson, 282 AD2d 75, 79 [1st Dept 2001]). After the officers directed Defendant to place his hands on the truck. They briefly inspected the truck and truck bed before they began asking him questions. During questioning, Defendant is eventually permitted to stop touching the truck and turns around to face the officers. Defendant was not in handcuffs and this interaction occurred at the location where he was stopped. A reasonable person innocent of any crime "would understand that he was being briefly detained in order to quickly obtain information either confirming or dispelling the officers' suspicion" (id; see also People v Chestnut, 51 NY2d 14, 20-21 [1980] [defendants ordered to lie down on ground during questioning were seized but not under arrest]).

A level three stop and detention "is authorized '[w]here a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about the commit a felony or misdemeanor'" (People v Zubidi, 233 AD3d 55, 58 [1st Dept 2024], lv to appeal granted, 42 NY3d 1038 [2024], and aff'd, 2026 NY Slip Op 00964 [Ct App Feb. 19, 2026]; CPL 140.50 [1]), or upon reasonable suspicion that the person poses some danger to the officers (Harrison, 57 NY2d at 476). "A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed" (De Bour, 40 NY2d at 223; CPL 140.50 [3]). "Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand. To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion" (Cantor, 36 NY2d at 112-113).

The law enforcement intrusion here was prompted by an anonymous 911 report ^FN1. According to P.O. Peralta, the officers received a radio run call for help at the subject location. The body of that job stated there was an intoxicated male driving a white vehicle that hit parked cars. He also described the body of the job as saying, "someone with a handgun" that "was driving while intoxicated, possibly intoxicated in a white vehicle." Later on, there was an additional radio run with a "code change to a 10-10 call for help with a firearm." There was no evidence that the radio run transmitted the identity of the caller, "thus, for purposes of a reasonable suspicion analysis, the tip was anonymous" (People v Porter, 246 AD3d 477, 478 [1st Dept 2026]).

To determine whether an anonymous 911 report can support a stop based on reasonable suspicion, the test is "whether [the] anonymous tip is sufficiently reliable to provide reasonable suspicion under the totality of the circumstances" (People v Leighton, — NY3d — 2025 NY Slip Op 06534 [2025]). Reasonable suspicion may be established by a 911 call from an anonymous individual and confirmatory observations by the police of information by the caller that was noncriminal in nature (id at *3, citing People v Argyris, 24 NY3d 1138, 1140-41 [2014]). While an anonymous report may be insufficient standing alone, "when considered in conjunction with other supportive facts," such as "factors rapidly developing or observed at the scene," reasonable suspicion may be established justifying intrusive police action (People v Benjamin, 51 NY2d 267, 270 [1980]). The court is mindful that officers "directed to a location by a general radio call cannot reasonably be instructed to close [their] eyes to reality" and cannot "ignore possible indications of criminality" or "reject the natural mental connection between the newly encountered facts and the substance of the radio message" (id at 271).

Here, the report was vague and generic, but it did include an allegation that a driver in a white vehicle was intoxicated and "hitting parked cars" at a specified address, which suggests contemporaneous observations of unconcealed conduct (see People v Shepard, 213 AD3d 1216 [4th Dep 2023]; Argyris, 24 NY2d at 1163 [2014][Abdus-Salaam, J. concurring]). The reporter's use of the 911 system is further indicia of reliability, in light of its capacity to identify and locate callers (Leighton, — NY3d — 2025 NY Slip Op 06534 *3, citing Navarette v California, 572 US 393, 400-401 [2014]). Police arrived at the reported location within five minutes of receiving the radio run, and they observed a male in a white pickup truck. It was the only vehicle in the area with its lights on. The vehicle was parked in an obscure manner, blocking a driveway, and partially blocking the street. Given the nature of the 911 call that included a claim that a drunk driver was hitting parked cars, the fact that officers quickly confirmed a vehicle matching the description at the reported address, and the vehicle with its lights on parked obscurely in a manner suggesting improper or erratic driving, the anonymous report proved reliable. Under the totality of the circumstances, the contemporaneous report and the circumstances at the scene provided the officers with reasonable suspicion to believe that Defendant was engaged in criminal activity, authorizing a level three intrusion (see Porter, 246 AD3d at 478).

Even if a level three intrusion was not justified, the anonymous 911 call coupled with observations at the scene did permit the officers a common-law right to approach Defendant and make inquiries of him (People v Stewart, 41 NY2d 65, 69 [1976] Porter, 246 AD3d at 478; [*5]People v Montilla, 268 AD2d 270, 270 [1st Dept 2000], appeal dismissed, 95 NY2d 830 [2000]). Where, as here, a suspect may be in possession of a firearm, "courts have consistently recognized that the police, in undertaking a common-law right inquiry of the suspect, must be permitted to take limited precautionary measures to protect themselves" (People v Herold, 282 AD2d 1, 7 [1st Dept 2001], lv denied, 97 NY2d 682 [2001]). These measures include minimal intrusions such as ordering the suspect to remove their hands from their pockets and come toward police, or directing the suspect to raise their hands (id, citing People v Dawson, 234 AD2d 318, 320 [1st Dept 1997], lv denied, 91 NY2d 980 [1998]; and Matter of Clarence W., 210 AD2d 71, 71-72 [1st Dept 1994], 86 NY2d 709 [1995]; see also People v Fernandez, 87 AD3d 474, 475 [1st Dept 2011]). If the suspect is slow or reluctant to comply with an officer's instructions, or the officers observe other suspicious behavior, they could reasonably suspect the defendant was armed which would justify more intrusive measures (Herold, 282 AD2d at 8).

The BWC footage shows that immediately upon exiting their marked patrol vehicle, the officers approach the Defendant's vehicle and point a flashlight at its driver's side window. The officer appears to ask, "what's going on, boss?" As they continue to approach the officer tells Defendant to "show me your hands." Defendant has his hands raised initially, but his hands are lowered out of view as Defendant unlatches the driver's side door, and it begins to open. The officers again order Defendant to show his hands. His hands are then raised again with the door partially opening. The officers then order Defendant to exit the car. He appears to have keys in his hand. Defendant is then ordered to put his hands on the car. He puts his hands behind his back, and the officers again direct him to put his hands on the car. He complies. After the officers look around the vehicle, they begin to ask questions.

In light of Defendant's reluctance or delayed compliance with officers' directives to show his hands and the fact that the driver door appeared to be opening before officers told him to exit, coupled with the report of a firearm, the officers were entitled to take the minimally intrusive additional self-protective measures to have Defendant step out of the vehicle and place his hands on its roof (see Herold, 282 AD2d at 8 [once defendant was acting in a reluctant manner or slow to comply with officer direction, officers were justified in placing defendant's hands on the wall], citing People v Oppedisano, 176 AD2d 667 [1st Dept 1991], lv denied, 79 NY2d 1052 [1992]).

Finally, the officers had probable cause to arrest Defendant. "In determining the propriety of an arrest for violating Vehicle and Traffic Law § 1192, '[t]he only valid inquiry ... is whether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the [arresting] officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor'" (People v Hillman, 71 Misc 3d 127[A], 2021 NY Slip Op 50233[U] [App Term, 2d Dept, 9th and 10th Jud Dist 2021], quoting People v Farrell, 89 AD2d 987, 988 [1982]). Within minutes of responding to a radio run report, officers observed Defendant sitting behind the wheel of a stationary vehicle parked obscurely. Defendant exhibited watery, slightly red eyes, unsteady gait, and was slow to respond. The officers confirmed there was damage to Defendant's vehicle and surrounding parked vehicles. The 911 caller informant confirmed the damage to his vehicle and said he had to move Defendant's vehicle because he felt Defendant was unable to do so. These observations were sufficient "to provide the officer with probable cause to arrest defendant at least for driving while ability impaired, if not driving while intoxicated" (People v Brady, 85 Misc 3d 129[A], 2025 NY Slip Op 50179 [U] [App Term, 2d Dept, 9th and 10th Jud Dist 2025]; People v Creer, 31 Misc 3d 1, 2-3, 2010 NY Slip Op 20529 [App Term, 1st Dept 2010]).

Since the arrest was lawful, the Mapp/Dunaway motion is denied^FN2.

Huntley Hearing

"At a Huntley hearing, the People have the burden of establishing beyond a reasonable doubt that statements made by a defendant to law enforcement authorities were made voluntarily" (People v Cruz, 86 Misc 3d 1136, 1150 [Sup Ct Bronx County 2025], citing People v Huntley, 15 NY2d 72 [1965]). The prosecution is barred from using any statements be a defendant to law enforcement that stem from a custodial interrogation of the defendant "unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination" (id, quoting Miranda v Arizona, 384 US 436, 444 [1966] [cleaned up]). "In the absence of proof that a defendant was given the so-called Miranda warnings and knowingly and intelligently waived them, 'no evidence obtained as a result of interrogation can be used against him'" (id., quoting Miranda at 479).

Miranda warnings must be given only if there was a "custodial interrogation" of Defendant. This involves two elements: "custody" and police "interrogation," and both "must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed on them by Miranda" (People v Huffman, 41 NY2d 29, 33 [1976]).

When determining whether a defendant is in "custody," the test is what a reasonable person, innocent of any crime would believe that their freedom had been significantly restrained by law enforcement (id.; see also People v Yukl, 25 NY2d 585, 589 [1969]) in other words, that he or she was not free to leave (People v Paulman, 5 NY3d 122, 129 [2005]; People v Robinson, 2025 NY Slip Op 05871 [Ct App Oct. 23, 2025]). In making this determination Courts must consider the totality of the circumstances (see People v Centano, 76 NY2d 837, 838 [1990]). It is generally a question of fact that does not turn on the subjective beliefs of the defendant or subjective intent of the officers (People v Trice, 213 AD3d 954, 956 [2d Dept 2023]). Factors to consider "include the amount of time which the defendant spent with the police, the manner, if any, in which his freedom was restricted, the location and atmosphere of his questioning, the degree of cooperation which he exhibited, whether he was apprised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature" (id, quoting People v Petrovich, 202 AD2d 523, 524 [2d Dept 1994], aff'd 87 NY2d 961 [1996][internal quotation marks omitted]).

"Interrogation" involves "not only express questioning, but also any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect" (Rhode Island v Innis, 446 US 291, 301 [1980]; see People v Ferro, 63 NY2d 316, 322 [1984]). The Court of Appeals has recently stated "[o]ur case law draws no categorical distinction between interrogation and so-called investigatory questioning. Interrogation is almost definitionally investigatory in nature. And while we have recognized a 'distinction between [*6]coercive interrogation and permissible street inquiry' (Huffman, 41 NY2d at 32, 390 NYS2d 843), the most salient difference between these categories is not when the questioning takes place, but the presence or absence of custody" (Robinson, 2025 NY Slip Op 05871 [Ct App Oct. 23, 2025][emphasis in original]). Whether "interrogation" exists "turns on the foreseeability of an incriminating response" (id, citing Innis, 446 US at 301-302 [emphasis in original]).

In this case, the People served a CPL 710.30 (1) (a) notice containing two statements, both made to P.O. Peralta at the T/P/O. The first statement was in sum and substance "I HAD A FOUR BEERS." The second statement was in sum and substance, "I HIT THE CAR."

The hearing evidence established that the second noticed statement was elicited shortly after Defendant exited the vehicle and was asked to place his hands on the roof. Specifically, the officers ask "[w]hat's going on tonight, boss? What happened?" Defendant responds, in sum and substance, "I hit a car." Police at that point were at the initial stages of investigating a report of a drunk driver striking parked cars, among other things. While Defendant had his hands on the vehicle, he was not in handcuffs and there were only two officers on scene. This did not constitute a custodial interrogation, as the Defendant was not in custody and the questions were designed to clarify the nature of the situation confronted, rather than to elicit incriminating statements (People v Hymes, 132 AD3d 1411 [4th Dept 2015], lv denied, 26 NY3d 1146 [2016]; People v Santiago, 77 AD3d 422 [1st Dept 2010], lv denied, 15 NY3d 955 [2010]; People v Archer, 137 AD3d 449 [1st Dept 2016], citing People v Huffman, 41 NY2d 29, 33-34 [1976]; see also People v Woods, 247 AD3d 942 [2d Dept 2026]; People v Serrano, — AD3d — 2026 NY Slip Op 02531 [4th Dept April 24, 2026]; cf Robinson, 2025 NY Slip Op 05871 at *3).

The other noticed statement was made later, after repeated questions from the officers, including whether he was on medication, whether he needed an ambulance, and whether he had been drinking. Defendant initially did not answer those questions. P.O. Peralta appeared to concede at the scene that he was aware Defendant did not want to answer questions. Once Defendant was surrounded by several officers, a flashlight was shined in his face, and he was ordered to look at the questioning sergeant, Defendant made the noticed inculpatory statement. At this time, a marked patrol vehicle was blocking the one-way street. Under these circumstances, a reasonable person innocent of any wrongdoing would not have believed they were free to leave (Trice, 213 AD3d at 957; see also People v Baez, 95 AD3d 654 [1st Dept 2012]). This was not a traffic stop or a "brief, on the scene inquiry" at that point (cf. Berkemer v McCarty, 468 US 420, 440 [1984]). The confrontation had become a "police-dominated" extended detainment occurring after officers had made their initial observations were aware Defendant was not answering questions, thus an officer should have known that the subsequent direct questioning was reasonably likely to elicit an incriminating response (Robinson, 205 NY Slip Op 05871 *3, citing Innis, 446 US at 302; Trice, 213 AD3d at 957).

Defendant's motion pursuant to Huntley is granted only to the extent that the first noticed statements, in sum and substance "I HAD A FOUR BEERS" are suppressed. The motion is otherwise denied.

Wade Hearing

At a Wade hearing, the prosecution has the burden of providing sufficient evidence demonstrating "the constitutional propriety of a police-arranged identification procedure" (People v Roberts, 169 AD2d 284, 289 [1st Dept 1991]; United States v Wade, 388 US 218 [1967]).

Defendant argues that the identification notice is defective since it did not include the [*7]name of the witness who made the identification. Defendant alternatively argues that the identification was unduly suggestive as the equivalent of a "show-up," since police organized an informal viewing of Defendant by a person on the scene.

These contentions are rejected. The evidence at the hearing established that this was a "witness-initiated" identification made by the 911 informant at the scene when he pointed out Defendant from 20 feet away. The identification, accordingly, did not require notice (People v Bailey, 66 AD3d 491, 492 [1st Dept 2009]). In addition, the witness provided the officers with Defendant's driver's license which he himself obtained from Defendant prior to police arrival on the scene. Under these circumstances there was no "police arranged" identification procedure (see People v Whitehead, 154 AD2d 493, 493 [2d Dept 1989], lv denied 75 NY2d 777 [1989]; People v Fernandez, 182 AD2d 431, 433 [1st Dept 1992], app denied, 79 NY2d 1049 [1992]).

Defendant's motion pursuant to Wade is therefore denied.

***

The Mapp/Dunaway motion is denied. The Huntley motion is granted in part and denied in part. The noticed statements that occurred during direct questioning as detailed above are suppressed. The Wade motion is denied.

The above constitutes the Decision and Order of this Court.

Dated: May 4, 2026

HON. SCOTT M. KROMPINGER, J.C.C.