People v Francisco

Supreme Court, Bronx County

Decided on April 27, 2026

Ind. No. 74529-23

Verena C. Powell, J.

Defendant Noel Hernandez Francisco is charged by indictment with murder in the second degree (Penal Law § 125.25) for allegedly causing the death of an individual by shooting him multiple times with a firearm. This court conducted a combined pretrial Rodriguez, Huntley, and Dunaway hearing from December 9, 2025, through December 18, 2025. During the hearing, the People called four witnesses and introduced 29 exhibits, while defendant called no witnesses and introduced seven exhibits. Following the close of evidence, both parties submitted briefings on the issues presented. Having considered the evidence and evaluated witness credibility, this court now sets forth its findings of fact and conclusions of law.

Findings of Fact

In the early morning hours of June 10, 2023, surveillance footage captured an individual shooting Erasmo Pujols de la Cruz multiple times on a Bronx street before fleeing on foot. Additional surveillance footage from the scene at 1538 University Avenue, and from several other locations documented the shooter traveling on foot to a nearby bridge where, a black sport utility vehicle was observed parked. Detective Michael Pando (Det. Pando), the lead investigator, examined the footage and identified the vehicle's license plate number. He then utilized license plate reader data to track the movements of this specific vehicle from the Bronx to New Jersey. By obtaining and reviewing motor vehicle records associated with the identified license plate, Detective Pando determined that Noel Hernandez Francisco was the registered owner of the black sport utility vehicle seen at the bridge.

After gathering information about where defendant resided, detectives approached a resident who lived several doors away from the address listed on the vehicle's registration . Police conducted three identification procedures with him: a video clip viewing, a single-photograph procedure, and a photo array.

Detective Pando and other investigators first approached this person on or about July 5, [*2]2023, seeking footage from his private security system for the period after the shooting.^FN1 At some point during their conversation, Detective Pando mentioned the vehicle of interest, and the person responded that he knew who owned it. According to Detective Pando, the person mentioned that the man had a limp. Detective Pando then showed him a video clip of an individual walking near the scene of the crime, though not the shooting itself, and asked whether he recognized the individual. The male identified the individual as the man who lived several doors away, noting that his former neighbor walked in the same manner as the person in the video clip. The witness who testified at the hearing stated that he was unaware at the time that he was participating in a homicide investigation.

Later that day, on July 5, 2023, Detective Pando showed the male a single photograph extracted from the footage. The photograph was too blurry to distinguish any specific facial features. The male again identified the person depicted in the image as defendant.

Nearly a month and a half later, on August 24, 2023, Detective Flores administered a double-blind photo array to the former neighbor , in which defendant's photograph appeared.^FN2 The man again identified defendant.

After further investigation, on October 4, 2023, at about 1:40 a.m., Detective Silverio tracked defendant's vehicle to Yonkers, New York and arrested defendant. Defendant was then transported to the 46th Precinct.

At the 46th Precinct, defendant made two statements: one about living in his car, the other about his injured leg.

At about 9:28 a.m. on the day of the arrest, Detective Guzman asked defendant, in Spanish, for pedigree information. During this exchange, defendant said that he was living in his car. Several minutes later, at about 9:31 a.m., Detective Guzman administered Miranda warnings to defendant in Spanish. Defendant stated that he did not wish to make a statement and requested an attorney. The interview then ended.

Later that day, a detective asked defendant whether he needed medical attention for his leg. Defendant said that he was okay, explaining that his leg was injured after a motorcycle accident some time ago. Defendant had not previously mentioned a leg injury or requested medical attention. Detective Pando did not remember when exactly this exchange occurred, only that it occurred after defendant invoked his right to remain silent. The specifics of this exchange and when it occurred are unclear, as it was not videotaped. The voluntary disclosure form notes that this statement was given at 11:00 a.m., although the same time was given for the earlier statement as well.

The parties dispute the extent of the non-eyewitness's prior familiarity with defendant. The factual basis for the former neighbor's identification is relevant to assessing its credibility and reliability. Thet neighbor explained that he regularly monitors his camera system for his [*3]properties and that this routine allowed him to identify defendant from the video clip. According to him, defendant had been his neighbor for less than six months, during which time the civilian observed defendant on his surveillance camera system two to three times per week. The neighbor also described a brief encounter with defendant, which he characterized as threatening, and lasting several minutes. When asked about the photograph, the neighbor claimed to recognize defendant by his silhouette. In relation to the video clip, the neighbor emphasized that he could readily recognize defendant by his limp gait. These factual assertions directly inform the assessment of both the credibility of the witness and the reliability of the identification evidence.

On the voluntary disclosure form, the People gave notice for the single-photograph procedure and the photo array, but not for the viewing of the video clip. The People also gave notice of the statement that defendant was living in his car and of the statement that defendant had a leg injury.

Conclusions of Law

Motion to Suppress on Probable Cause Grounds

Defendant argues that the arrest lacked probable cause and that all evidence derived from it must be suppressed (Dunaway v New York, 442 US 200, 218 [1979]). Probable cause requires a reasonable belief that an offense was committed and that the defendant is the person who committed it (People v Bigelow, 66 NY2d 417, 423 [1985]). At a Dunaway hearing, the People have the initial burden of going forward to establish that the police had probable cause to arrest the defendant (People v Dodt, 61 NY2d 408, 415 [1984]; People v Wise, 46 NY2d 321 [1994]; People v Berrios, 28 NY2d 361, 367 [1971]). To satisfy this burden, the People must introduce credible evidence that establishes the lawfulness of the police conduct (People v Carmona, 233 AD2d 142 [1st Dept 1996]; People v Quinones, 61 AD2d 765 [1st Dept 1978]). "In evaluating the police action, the court must determine whether it was justified at its inception and reasonably related in scope to the circumstances at the time" (People v De Bour, 40 NY2d 210, 215 [1976]). Once the People have met their initial burden, the defendant has the ultimate burden of proving the illegality of the police conduct by a fair preponderance of the evidence (Berrios at 367; People v Pettinato, 69 NY2d 653, 654 [1986]).

Here, the police had probable cause to believe that Hernandez Francisco murdered Erasmo Pujols de la Cruz. Det. Pando and his team reviewed multiple video recordings capturing the sequence of events before and after the decedent's murder. Through license plate reader technology, they identified a specific black sports utility vehicle present near the scene, traced its movements from the Bronx to New Jersey, and confirmed that the defendant, who resided in New Jersey, was the registered owner. Additionally, a former neighbor of the defendant, though not an eyewitness to the crime, identified the individual depicted in these video clips as the defendant, noting a distinctive limp matching the person portrayed. On this basis, probable cause existed for the defendant's arrest.

Acting on the results of Det. Pando's investigation, and the conclusion that Hernandez Francisco was the New York City Police Detective Daniel Silverio (Det. Silverio), as a member [*4]of the Regional Fugitive Task Force ^FN3, apprehended Hernandez Francisco on October 4, 2023, in Yonkers, New York, Westchester County. Det. Silverio testified that the unit received an I-Card from the NYPD in August 2023. An investigation card (I-card) is a document created by the police department's computerized investigation system. The card notifies police officers that a particular person is a person of interest, the subject of a police investigation. There are different types of I-cards; the person sought by the police may be a witness or a suspect. This I-card sought the arrest of Hernandez Francisco as a suspect/perpetrator of a murder, is also referred to as a "probable cause I-card" (see People v Palacios, 2026 NY Slip Op 02360, *2, — NY — [2026]).

An arresting officer may rely on another officer's investigation if that other officer possessed probable cause (People v Ketcham, 93 NY2d 416, 419-420 [1999]). Detective Pando reviewed surveillance footage, linked the suspect to a vehicle, tracked it through license plate reader data, and identified defendant as the registered owner of that vehicle. Detective Silverio was entitled to rely on that investigation when he arrested defendant. Since the arrest was supported by probable cause, the motion to suppress on probable cause grounds is denied.

Motion to Preclude Identification Evidence

The People served a timely CPL 710.30 notice for the single photo and the photo array. The other procedure, the viewing of the video clip, falls outside the statutory notice requirements.

The initial viewing of the surveillance footage was omitted from the notice, but not every police-assisted viewing of surveillance footage is an identification procedure that requires CPL 710.30 notice (see People v Gee, 99 NY2d 158, 162 [2002] [holding that a complaining witness viewing surveillance footage of the robbery she witnessed was not a statutory identification procedure within the meaning of CPL 710.30 [1]]). Statutory notice for identification is required only when a witness observed the defendant during the crime or on some related occasion and later identified defendant through a police-arranged procedure (People v Peterson, 194 AD2d 124, 128 [3d Dept 1993]; see People v Moreno, 148 AD3d 827, 828 [2d Dept 2017] [recognizing that statutory notice was not required where non-eyewitness observed surveillance footage of crime]). Without that prerequisite observation, the statute does not apply (Moreno, 148 AD3d at 828).

Here, the former neighbor did not observe the crime. He was asked only whether he recognized the person shown in the surveillance footage based on prior familiarity. In truth, none of the three identification procedures triggered the statutory notice requirement. The People's service of notice for the single photograph and photo array was precautionary. The motion to preclude is therefore denied.

Motion to Suppress Identification Evidence—Rodriguez Exception

Although preclusion is unwarranted, the identification procedures remain subject to constitutional scrutiny (see People v Newball, 76 NY2d 587, 591 [1990] [holding that due [*5]process concerns are implicated when identification procedures "come about at the deliberate direction of the State"]). A police-arranged procedure can be suggestive whether or not the witness observed the underlying offense (People v Collins, 60 NY2d 214, 219-220 [1983] [applying constitutional suppression principles to police-arranged voice identification by a non-eyewitness]). Familiarity with the person to be identified is the principal check against suggestiveness (id.).

The threshold question is thus whether the witness was so familiar with defendant that the identification procedures were merely confirmatory (People v Rodriguez, 79 NY2d 445, 450 [1992]). To invoke the Rodriguez exception, the People must establish "that the witness knows defendant so well as to be impervious to police suggestion"(id. at 452).

The People did not meet that burden. The non-eyewitness had one face-to-face encounter with defendant within a six-month period; in addition, his subsequent observations of defendant were limited to security camera footage viewed several times a week. Importantly, the record fails to set forth details concerning the quantity, duration, context, and quality of these camera-based encounters, leaving unaddressed the specific circumstances under which the non-eyewitness observed defendant (Matter of Duane F., 309 AD2d 265, 279-280 [1st Dept 2003]). The case law holds that even frequent, routine observations are insufficient where there is no indication of characteristics such as proximity, lighting, or observational context (People v Coleman, 73 AD3d 1200, 1203 [2d Dept 2010]). Accordingly, given the nature of this witness's contact — predominantly indirect, lacking in detailed familiarity, and otherwise limited - the People have not established the depth or quality of acquaintance required to satisfy the Rodriguez standard. Therefore, even crediting the one direct encounter, the evidence falls short of demonstrating that the witness's familiarity was so substantial as to eliminate the substantial risk of undue police suggestion (Rodriguez, 79 NY2d at 452).

The non-eyewitness's testimony that he recognized defendant's gait, or limp does not change the result. Because gait can only be observed in motion, the non-eyewitness would have been recognized defendant only by watching the surveillance clip. The non-eyewitness watched that clip after Detective Pando mentioned a vehicle of interest belonging to defendant. Under these circumstances, the non-eyewitness's recognition of defendant was not a demonstration of familiarity but the outcome of police suggestion (see People v Wharton, 74 NY2d 921, 922-923 [1989] [requiring proof that the witness knew the defendant so well that even a suggestive procedure could not have affected reliability]). The Rodriguez exception, therefore, does not apply.

Motion to Suppress Identification Evidence—Wade Analysis

Because the Rodriguez exception does not apply, each identification procedure must be evaluated for suggestiveness (United States v Wade, 388 US 218, 228-229 [1967]). The People bear the initial burden of establishing the "reasonableness of the police conduct" and the "lack of any undue suggestiveness in a pretrial identification procedure" (People v Chipp, 75 NY2d 327, 335 [1990]; Dodt at 415; Berrios at 367). Once the People satisfy that burden, defendant "bears the ultimate burden of proving that the procedure was unduly suggestive" by a fair preponderance of the evidence (Chipp at 335, Berrios at 367). For the three identification procedures at issue, the People have failed to meet their initial burden.

The identification procedures in this case did not begin with a blank slate. When police [*6]arrange for a non-eyewitness to identify a suspect as someone known to them, the risk is that "the police might suggest that the [person] on the recording was that of a particular acquaintance" (Collins, 60 NY2d at 220). This risk materializes specifically when law enforcement identifies a suspect to the witness before producing the video evidence (People v Burton, 191 AD3d 1311, 1313 [4th Dept 2021] [holding that police acted suggestively "by contacting the parole officer and discussing defendant with him prior to showing him the video"]). In this instance, the detective, while reviewing surveillance footage from the non-eyewitness's camera system mentioned a vehicle of interest, which the neighbor then identified as belonging to the defendant. This interaction formed a direct causal chain; the detective's explicit reference to the vehicle prompted the non-eyewitness to connect the subject of the surveillance footage to the defendant before any formal identification procedure began. By first steering the conversation toward the defendant through mention of the vehicle, the detective led the non-eyewitness to focus on the defendant as a suspect, thereby predisposing the outcome of the subsequent identification. The People might contend that such risk of suggestion is mitigated by the non-eyewitness's own prior familiarity with the defendant, potentially ensuring reliability of the identification. However, any such mitigating effect is absent here, as the non-eyewitness's exposure to the defendant was primarily limited to indirect observations through security camera footage, rather than a pattern of regular face-to-face interactions. The requisite depth of familiarity, as recognized in case law, is not supported by the present record. Accordingly, the detective's initial comments directly influenced the identification outcome by fostering suggestiveness from the outset. When the detective subsequently displayed the video clip and asked if the non-eyewitness recognized anyone, the earlier cue had already inclined him to identify the defendant. The People's reliance on the non-eyewitness's limited familiarity fails to overcome this concern. Therefore, the identification procedures were unduly suggestive (see Collins, 60 NY2d at 220), and the identification arising from the video clip is suppressed.

After showing the non-eyewitness the video clip, the detective showed him a single still photograph taken from the video. Showing a single photograph invites suggestiveness because it "tends to emphasize the person portrayed as the person sought" (People v Marshall, 26 NY3d 495, 506 [2015], quoting Matter of James H., 34 NY2d 814, 816 [1974]). Here, that suggestiveness was compounded by the earlier identification. By the time the photograph was shown, the non-eyewitness had already been directed toward a specific suspect. Significantly, the photograph was too blurry to discern any facial features. This heightened the risk of undue suggestion by reinforcing the suggestiveness of the earlier procedure. The identification from the single photograph is also suppressed.

By the time the civilian non-eyewitness viewed the photo array, he had already identified defendant twice through suggestive procedures. Significantly, since he did not personally observe the crime, the photo array did not test his memory of the suspect. Rather, it tested the non-eyewitness's claimed familiarity with defendant. Because the non-eyewitness's familiarity was too weak to render him impervious to suggestion (Rodriguez, 79 NY2d at 452), his identification from the array was vulnerable to the suggestion instilled by the previous procedures (Collins, 60 NY2d at 220) [recognizing that a non-eyewitness's identification may be vulnerable to police suggestion].

Even where a witness participated in an unduly suggestive identification procedure, the witness may still, in some circumstances, be permitted to identify the defendant in court (see Chipp, 75 NY2d at 335). To do so, the People must prove by clear and convincing evidence that [*7]the witness's ability to identify defendant as the perpetrator of the crime is based on an independent source untainted by the suggestive procedure (see People v Adams, 53 NY2d 241, 251 [1981]). Since the civilian witness was not an eyewitness to the crime, he had no firsthand observation of the crime from which such an independent source could arise. Independent-source analysis is thus inapplicable in this case.

Lay Opinion Identification Testimony—Mosley

The question of whether the non-eyewitness may offer lay opinion identification testimony is deferred to the trial court. Whether the probative value of such testimony outweighs its drawbacks is "a decision committed to the sound discretion of the trial court" (People v Mosley, 41 NY3d 640, 647 [2024]). Before admitting such testimony, the trial court must consider whether the witness has had sufficient familiarity with defendant that their lay opinion identifying defendant would be helpful (id. at 648). The trial court must also consider whether the proposed testimony would be sufficiently helpful to the jury based on the footage presented at trial (id. at 649). These are fact-intensive determinations that "preserve[] the discretion of the trial court—the court that, being closest to the facts of the case, is in the best position to make these evidentiary decisions" (id. at 648). The findings made by this court are relevant to the trial court's evidentiary determination to the extent they bear on the witness's familiarity with defendant and the conditions under which that familiarity has been tested (id. at 648-649). At this stage, the People are not foreclosed from eliciting such testimony.

Motion to Preclude or Suppress Statement Evidence

Defendant seeks suppression of two statements made at the precinct after his arrest: one about where he was living and another about his leg injury.

A defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v Arizona, 384 US 436 [1966]). "Both the elements of police custody and police interrogation must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda" (People v Huffman, 41 NY2d 29, 33 [1976]). Defendant was in custody upon his arrest for murder.

The burden of proof lies with the prosecution, and the People must establish the voluntariness of defendant's statement beyond a reasonable doubt (People v Thomas, 22 NY3d 629, 641 [2014]; People v Huntley, 15 NY2d 72 [1965]). In meeting its burden of proving the voluntariness of a defendant's statement, the People must establish that a defendant, in police custody, was advised of their constitutional rights before being subjected to interrogation (id.).

Here, Det. Guzman administered Miranda warnings to defendant, who indicated that he understood and declined to waive those rights. This acknowledgement by the defendant is relevant to determining whether any subsequent statements were made voluntarily and with a knowing and intelligent waiver of his constitutional rights.

The first statement, that the defendant was living in his car, is admissible. The People provided timely CPL 710.30 notice. A volunteered statement is "admissible provided the defendant spoke with genuine spontaneity 'and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed' " (People v Rivers, 56 NY2d 476, 479 [1982], quoting People v Maerling, 46 NY2d 289, 302-303 [1978]). Defendant spontaneously made the remark about living in his car while pedigree questions were being [*8]translated. The detectives did not know he was living in his car. Nothing in the record suggests the questioning was designed to elicit this information. Defendant's statement about living in his car is thus admissible.

The second statement, however, must be suppressed. Defendant invoked the right to counsel after receiving Miranda warnings. Once the right to counsel is asserted, law enforcement is strictly prohibited from questioning defendant further unless counsel is present or defendant initiates the conversation (see People v Cunningham, 49 NY2d 203, 210 [1980]). In this case, the record reflects that after the defendant asserted his right to counsel, a detective questioned him regarding his leg injury. Such questioning constituted interrogation because the inquiry was "reasonably likely to elicit an incriminating response" (People v Ferro, 63 NY2d 316, 322 [1984], quoting Rhode Island v Innis, 446 US 291, 301 [1980]). The fact that the detective was aware of the defendant's distinctive gait and that no prior mention of a leg injury or a need for medical attention had occurred further supports the conclusion that the question was investigatory rather than administrative. The so-called "pedigree exception," which allows for limited inquiry into biological or administratively necessary matters, does not apply when the questioning extends to information with a direct bearing on the alleged offense or the ongoing investigation (People v Wortham, 37 NY3d 407, 413-414 [2021]). Here, asking about the leg injury fell outside the permissible scope of pedigree questioning. As the detective initiated this exchange after the defendant requested counsel and the inquiry was reasonably likely to uncover incriminating information about the suspected perpetrator, the resulting statement must be suppressed on both constitutional and evidentiary grounds.

Conclusion

In summary, the court finds that certain pieces of identification evidence in this case were subject to undue suggestiveness and must therefore be suppressed. Specifically, the identifications resulting from the video-clip viewing, the single-photograph identification, and the photo-array are suppressed, while the question of whether lay opinion identification testimony will be permitted under Mosley is deferred to the trial court for further consideration. Regarding the defendant's statements, the court holds that the statement concerning his residence is admissible, but the statement regarding his leg injury, elicited after the invocation of the right to counsel, is suppressed.

Dated: April 27, 2026

Bronx, New York

HON. VERENA C. POWELL, A.J.S.C.