DECISION AND ORDER The defendant is charged with two counts of Criminal Possession of a Controlled Substance in the Third Degree, in violation of Penal Law (PL) sections 220.16(1) and 220.16(12), one count of Criminal Possession of a Controlled Substance in the Fourth Degree, in violation of PL section 220.09(1), and two counts of Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of PL section 220.03.This court conducted a combined Ingle/Dunaway/Mapp/Huntley hearing on November 2, 2018. The People presented two witnesses, Police Officers Noel Damico and Daniel Gerardi, and the defendant testified on his own behalf. Upon conclusion of the hearing, the defendant requested an opportunity to submit a written memorandum of law on the issues raised at the hearing which this court granted. In determining its decision, the court has considered the testimony elicited at the hearing, the exhibits introduced into evidence at the hearing, and the written submissions of the parties.I make the following findings of fact and conclusions of law:FINDINGS OF FACTOfficer Damico has been with the New York City Police Department (NYPD) for seven years (Hearing Transcript [Tr] at 8). I credit his testimony to the following extent: On March 3, 2017, Officer Damico was working in plain clothes together with Sergeant Martinez and Officer Casimir (Tr at 10-11). Officer Damico was the passenger in an unmarked car (Tr at 10-11). At approximately 12:25 AM, Officer Damico was traveling northbound on Essex Street, Kings County, when he observed a taxi cab in front of him make a right turn onto Atlantic Avenue and quickly cross over three lanes of traffic without signaling (Tr at 12). He then observed the cab make a left turn onto Highland Place again without signaling (Tr at 12). At that point, the officers conducted a car stop (Tr at 13). Officer Damico approached the passenger side and Sergeant Martinez approached the driver side of the taxi cab (Tr at 13). Officer Damico observed two occupants in the taxi cab, the driver and the rear passenger, who was subsequently identified as the defendant (Tr at 13-14). It was dark out, but the street was well lit with street lights and Officer Damico had his flashlight out (Tr at 14). No traffic ticket was issued to the driver of the vehicle (Tr at 27).While Officer Damico was on the passenger side of the car, he observed that the defendant appeared nervous and that “it looked like he was covering a large bulge on his right inner thigh” (Tr at 15). Officer Damico further described the bulge to appear heavy and rectangular (Tr at 15). Officer Damico believed the object to be a weapon and asked the defendant to step out of the car (Tr at 16). Officer Damico then frisked the area where he observed the bulge and determined it was not a weapon because it “felt spongy” (Tr at 16-17). Officer Damico asked the defendant what was inside his pants and the defendant stated “it was just marihuana” (Tr at 17).The defendant then reached into his pants with both hands and ripped the bag open, causing a brown powdery substance, later identified as heroin, to be released into the air, covering himself, Officer Damico and his partner, and the street (Tr at 17-18). Officer Damico believed the substance to be either heroin or crack cocaine (Tr at 18). Officer Damico then attempted to place the defendant in handcuffs at which point the defendant tensed up, started to scream, and attempted to kick his partner (Tr at 18). Once the defendant was placed under arrest, additional officers arrived on scene, including Officer Gerardi, who assisted in recovering the heroin (Tr at 19).Officer Damico then transported the defendant to the 75th precinct (Tr at 19). Once Officer Damico removed the defendant from the police car into the precinct, he observed heroin on the back seat and floor of the police car, as well as a trail of heroin leading from the police car to inside the precinct (Tr at 20). The defendant was placed in a holding cell where Officer Damico had the defendant remove his clothing because the defendant was “contaminated” with heroin (Tr at 21). As the defendant’s clothes were being changed, Officer Damico recovered a ziploc bag of a white powdery substance, later identified as cocaine, and five glassines of heroin from the defendant’s groin area (Tr at 21).Officer Gerardi has been with the NYPD for almost six years (Tr at 32). I credit his testimony to the following extent: On March 3, 2017, Officer Gerardi was working in plain clothes together with Officers Quattrocchi and Sikora (Tr at 35). At approximately 12:25 AM, Officer Gerardi received a radio transmission from his sergeant requesting that he respond to 217 to 219 Highland Place (Tr at 35). When Officer Gerardi responded to that location, he observed the defendant in handcuffs and other officers covered in a tan powdery substance, as well as tan powdery substance on the vehicles and ground (Tr at 26). Officer Gerardi documented what he saw by taking photographs (Tr at 37). Photographs of the scene were admitted into evidence as People’s #1 A-F. In addition to taking the photographs, Officer Gerardi tried to recover as much of the heroin from the scene as possible by scraping it up from the ground and recovering the bag that originally contained it (Tr at 39-40).Officer Gerardi then went to the 75th precinct where he tried to recover the heroin from the back seat of the patrol car the defendant was transported in, as well as from the path the defendant walked from the patrol car into the precinct (Tr at 40). Officer Gerardi documented what he saw by taking additional photographs (Tr at 40). Photographs of the rear of the patrol car as well as the sidewalk leading into the precinct were admitted into evidence as People’s #2 A-C.While at the precinct, Officer Gerardi began processing the defendant’s arrest by asking the defendant for his pedigree information (Tr at 45). He described pedigree information as “name, address, date of birth, location of arrest, phone number, arrest time, things of the sort” (Tr at 45). During the arrest processing, the defendant asked Officer Gerardi what he was being arrested for and the officer responded “for possession of a controlled substance” (Tr at 45). The defendant then stated “It wasn’t pure. It was just cut” (Tr at 45). “And then he proceeded to say that it’s not his, that he doesn’t sell it. He’s just the middle man and that he picks it up from some guy on Essex” (Tr at 45-46). The defendant was not handcuffed during that time and no other officers were present (Tr at 46). Officer Gerardi’s gun was not drawn and he did not make any threats or promises to the defendant in exchange for the statement (Tr at 46).The defendant took the stand on his own behalf and explained that on March 3, 2017, he was at his friend’s house on Essex Street between Liberty and Atlantic Avenues (Tr at 53). He knows his friend as “Pete” but did not know his last name or “the door number” of his address (Tr at 59). The defendant’s friend called a cab for the defendant using the Uber app on his phone and the defendant waited downstairs for it (Tr at 53). As the defendant was waiting for the cab, he observed an unmarked car drive slowly by him (Tr at 53). The defendant looked at the car thinking it was the cab, but realized it wasn’t when it didn’t stop for him (Tr at 53). The defendant could not make eye contact with the occupants of that car because it was “tinted out” (Tr at 53-54). A few minutes later, the cab came (Tr at 55). The cab started traveling towards Atlantic Avenue and made a right turn onto Atlantic Avenue using his right turn signal (Tr at 55). According to the defendant, the driver then “puts the signal light to the left’ and made the left onto Highland (Tr at 55-56). The defendant knew that the cab driver used his turn signals because he saw the blinking light and heard the “ding ding” noise it makes (Tr at 58). The defendant conceded that he did not actually know if the back lights were blinking because he was not able to see that (Tr at 62). After the cab turned onto Highland Place, the police pulled it over, told the driver to stay in the car, and ordered the defendant out of the car (Tr at 56). The distance between where the defendant entered the cab to where the police stopped the cab was approximately two blocks (Tr at 57). The defendant stated that Officer Damico did not shine a flashlight at him during the stop (Tr at 56).CONCLUSIONS OF LAWAt a suppression hearing, the People have the initial burden of going forward to show, by credible evidence, the lawfulness of the police conduct (People v. Hernandez, 40 AD3d 777, 778 [2nd Dept 2007]; People v. Moses, 32 AD3d 866, 868 [2nd Dept 2006]; see also People v. Wise, 46 NY2d 321, 329 [1978]; People v. Whitehurst, 25 NY2d 389, 391 [1969]). In evaluating the police action, the court must determine whether it was justified at its inception and whether it was reasonably related in scope to the circumstances at the time (People v. DeBour, 40 NY2d 210, 215 [1976]). If the People satisfy their initial burden, the defendant “bears the ultimate burden of proving that the evidence should not be used against him” (People v. Berrios, 28 NY2d 361, 367 [1971]).The defendant contends that the initial police action, the car stop, was unlawful in that it was pretextual. Relying on People v. Tariff, 19 Misc 3d 1117(A) (Supreme Court, NY County 2008), he submits that any evidence recovered following this pretextual stop should be suppressed.In Tariff, supra, the defendant was a rear passenger in a taxi which was pulled over for failing to signal a turn. As the officer approached on the passenger side of the car, he observed the defendant looking back and forth and also noticed an up and down movement of defendant’s shoulder. ” ‘Concerned about what was going on,’ ” the officer asked the defendant to roll down the car window and used a flashlight to focus on the defendant’s hands and waist area. The officer did not see any weapon. He asked the defendant where he was going and observed the defendant to be nervous, in that his hands were trembling, he was breathing heavily and talking ” ‘very fast’ “ . There were no other observations set forth at the hearing which made the officer suspect or believe that the defendant was armed. The officer then asked the defendant to step out of the car and frisked him. During the frisk, the officer observed the defendant press the left side of his body against the car. After the defendant did this two more times, the officer put his hand into the defendant’s pants pocket and recovered a bag of heroin.In Tariff, the People conceded that the stop was pretextual. However, as set forth by the Court of Appeals in People v. Robinson, 97 NY2d 341 (2001) and as recognized by the trial court in Tariff, pretext stops are permissible. The court in Tariff granted suppression, not because the stop was pretextual, but because the defendant’s actions did not create an objective reason for the officer to fear for his safety and to frisk the defendant.“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred” (Robinson, 97 NY2d at 348-349; see also People v. John, 119 AD3d 709, 710 [2nd Dept 2014]; People v. Hamilton, 89 AD3d 1104, 1104 [2nd Dept 2011]). It is also firmly established that “provided a traffic stop is supported by probable cause, ‘neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant’ ” (People v. Wright, 98 NY2d 657, 658-659 [2002], quoting Robinson, 97 NY2d at 349; see also People v. Baksh, 113 AD3d 626, 627 [2nd Dept 2014]).In this case, the court credits the testimony of Officer Damico that the cab the defendant was traveling in violated the New York State Vehicle and Traffic Laws by failing to signal when changing lanes on Atlantic Avenue and again by failing to signal when making a left turn onto Highland Place. As such, there was probable cause for the stop of the vehicle (John, 119 AD3d at 710 [observation that defendant's vehicle had a defective or operable brake light justified the stop]; Baksh, 113 AD3d at 627-628 [defendant's argument that purpose of vehicle stop was not for traffic violation but rather to investigate a possible robbery or narcotics transaction belied by hearing testimony which established probable cause to believe defendant violated VTL section 1180]).Notwithstanding the similarities between the facts of this case and those in Tariff; Tariff is readily distinguishable. Tariff, as stated by the trial court, was “not a case where an officer observed a bulge that would lead him to believe that the defendant was armed.” Here, in contrast, as Officer Damico approached the passenger side of the car, he observed that the defendant was nervous and appeared to cover a large bulge on his right inner thigh. Officer Damico further described the bulge as heavy and rectangular in shape. Believing that the bulge was a weapon, Officer Damico ordered the defendant out of the cab (see People v. Robinson, 74 NY2d 773, 775 [1989] ["police may order persons out of an automobile during a stop for a traffic violation"]; see also Pennsylvania v. Mimms, 434 US 106 [1977] [police may order the driver out of a vehicle once the vehicle has been lawfully detained for a traffic violation]).The facts herein are strikingly similar to those in People v. Rosario, 245 AD2d 470 (2nd Dept 1997), a Second Department case cited in the Tariff decision relied upon by the defendant. In Rosario, after legally stopping the vehicle in which the defendant was a passenger, the police observed a bulge in the defendant’s pants which “entitled [the officer] to engage in the ‘minimal intrusion’ of touching [the bulge] to determine if it was a weapon” (Rosario, 245 AD2d at 471). The credible testimony adduced at the suppression hearing in Rosario established that after determining that the bulge was a not a weapon, the officer did not himself remove the package; rather, it was “voluntarily produced” by the defendant (id.).Here, Officer Damico frisked only the area of the bulge. Upon determining that the bulge was not a weapon because it felt spongy, he did not attempt to recover the item causing the bulge. Had he done so, the search would have been unlawful (see People v. Setzer, 199 AD2d 548 [2nd Dept 1993] [search deemed unlawful where officer felt bulge in defendant's waistband that did not feel like a metal object but recovered it anyway]; People v. Miles, 208 AD2d 1089 [3rd Dept 1994] [once the officer concluded that a bulge in defendant's waistband was not a weapon, the further intrusions of lifting defendant's shirt and seizing a plastic bag were not authorized]). Instead the officer asked about the bulge and the defendant responded that it was just marihuana. The defendant then, of his own volition, reached into his pants with both hands and ripped open the bag, causing its contents to spill out everywhere.In this case, as in Rosario, there was no violation of the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures. After a lawful car stop, the defendant was directed to exit the vehicle and the officer engaged in the “minimal intrusion” of feeling the area where a bulge was observed to determine whether it was a weapon. The defendant, not the officer, then produced a bag containing narcotics from the area of the bulge and ripped it spilling its contents. The officer, based on his training and experience, believed the contents to be narcotics and placed the defendant under arrest. The credible evidence presented before this court establishes that there was probable cause for the defendant’s arrest. Accordingly, the defendant’s motion to suppress the heroin and bag recovered at the scene of the car stop as well as the heroin recovered from the backseat of the police car and the sidewalk leading into the precinct is denied.The court will now address the recovery of the defendant’s clothing containing heroin residue, the ziploc bag containing crack cocaine and the five glassines of heroin. Once at the precinct, the defendant was placed in a holding cell and told to remove his clothes because they were “contaminated” with a powdery substance (Tr at 21, 43). As the defendant’s clothes were changed, the ziploc and glassines were recovered from his groin area. Because there was probable cause to arrest the defendant, the subsequent search of his person resulting in the recovery of additional narcotics was valid as a search incident to a lawful arrest (People v. Davis, 32 AD3d 445, 445 [2nd Dept 2006] [suppression not warranted where cocaine recovered from defendant's person during search incident to lawful arrest]; People v. Lynch, 254 AD2d 503, 503 [2nd Dept 1998] [evidence recovered from defendant's person was properly recovered during search incident to lawful arrest]). Accordingly, the defendant’s motion to suppress this evidence is likewise denied.Turning now to the statements attributed to the defendant, the People gave notice of oral statements made by the defendant at the precinct, in sum and substance that “the heroin is cut and not pure” and that “defendant picks the stuff up from a guy on Essex, that defendant is the middle man, and that defendant isn’t selling it” (see People’s Voluntary Disclosure Form). At the hearing, the People elicited an additional statement, in sum and substance, “It’s just marihuana,” for which they had not given notice.Criminal Procedure Law (CPL) section 710.30 requires that the People serve notice of their intent to offer a defendant’s statement within 15 days of arraignment. The notice requirement will be excused, however, if a defendant moves for suppression, rather than preclusion, of the unnoticed statement (see CPL §710.30[3]; People v. Lopez, 84 NY2d 425, 428 [1994]). Where a defendant moves to suppress statements and a hearing is held, the defendant has been “afforded…the same opportunity for a court to pass upon the admissibility of the statement as he would have had if timely notice had been given,” (People v. Amparo, 73 NY2d 728, 729 [1988]). In those instances, the defendant has waived the preclusion argument (see People v. McCray, 53 Misc 3d 19, 23 [2nd Dept 2016]). Even where defense counsel first learns of an unnoticed statement at the Huntley hearing itself, the waiver rule set forth in CPL section 710.30(3) is applicable as the hearing is “a procedure deemed ‘sufficient to put the defendant on notice of the People’s intent to use the statement… [and to provide] ample opportunity to challenge the statement at that time’ ” (McCray, 53 Misc 3d 19, 23 [2nd Dept 2016], quoting People v. Schnugg, 257 AD2d 669, 670 [2nd Dept 1999]).In this case, the People consented to and conducted a Huntley hearing, at which time the unnoticed statement was elicited. Prior to the start of the hearing, the defendant did not move to preclude any unnoticed statements. When the statement was elicited at the hearing by the prosecutor, the defendant did not move to preclude the statement on the ground of lack of notice or otherwise object to the officer’s testimony regarding the statement. And finally, in his memorandum of law submitted after the conclusion of the testimony, the defendant made no specific mention of the statement or that he had not received notice of it. Having been “alerted to the unnoticed statement, [the defendant] was afforded a full opportunity to litigate the statement’s admissibility” (McCray, 53 Misc 3d at 23-24). By proceeding in this fashion, the defendant waived preclusion (id. at 24).At a Huntley hearing, the People have the burden of proving beyond a reasonable doubt that the statements made by the defendant were voluntary. It is manifest that 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]).With respect to the unnoticed statement, it is clear that the statement was made in response to a direct question from the officer. However, because the defendant was not in custody at the time of his statement, Miranda warnings were not required (see People v. Branden, 524 NYS2d 787 [2nd Dept 1988] [Miranda not required at outset of car stop as defendant was not in custody]). Moreover, the officer’s question was investigatory in nature and not an interrogation aimed at eliciting an incriminating statement (see People v. Jenkins, 208 AD2d 459 [1st Dept 1994]). Therefore, this court finds that the statement, “it’s just marihuana,” was not the product of custodial interrogation and was voluntarily made.As to the noticed statement, the testimony before this court establishes that the statement was made by the defendant after he was placed into a holding cell at the 75th precinct. Accordingly, there is no question that the defendant was in custody. It is also undisputed at the time of the statement, the defendant was being asked pedigree questions. However, because pedigree questions “are limited in scope to those necessary for processing a defendant,” an officer need not read a defendant his Miranda rights prior to obtaining such pedigree information (People v. Hester, 161 AD2d 665, 666 [2nd Dept 1990]; see also People v. Rodney, 85 NY2d 289 [1995]; People v. Smith, 151 AD2d 792 [2nd Dept 1989]; People v. Padron, 118 AD2d 599 [2nd Dept 1986]; People v. McCloud, 50 AD3d 379 [1st Dept 2008]; People v. Nelson, 147 AD2d 774 [3rd Dept 1989]).“The test for suppression is not whether the information is inculpatory, but ‘whether the police were trying to inculpate defendant or merely processing him’ ” (Hester, 161 AD2d at 666, quoting People v. Nelson, 147 AD2d 774, 776 [3rd Dept 1989]). Here, the officer was not asking the defendant about the circumstances surrounding his arrest but rather obtaining his pedigree information. During this process, the defendant asked about his arrest charges and Officer Gerardi informed him that he was arrested for possession of a controlled substance. The defendant then made the noticed statement.“Volunteered statements… ‘made without apparent external cause’ are admissible even if the defendant was in custody” (see People v. Tavares-Nunez, 87 AD3d 1171, 1172 [2nd Dept 2011]). The officer’s brief response to the defendant’s question regarding his arrest charges did not amount to police interrogation or its functional equivalent (cf. Tavares-Nunez, 87 AD3d at 1172). Here, there is no evidence that Officer Gerardi was trying to inculpate defendant or that he should have known that his response to the defendant’s question was likely to elicit an incriminating response (People v. Troisi, 224 AD2d 559, 559 [2nd Dept 1996] [lower court was correct in denying the defendant's motion to suppress his statements when those statements were made "in response to being informed that he was under arrest"]; People v. Pryor, 194 AD2d 749, 750 [2nd Dept 1993] [suppression of statement made by defendant after he asked officer why he was being arrested and officer explained was properly denied]). The record before the court established that the defendant’s statement was spontaneous and not the result of inducement, provocation or encouragement (People v. Grimaldi, 52 NY2d 611, 617 [1981]; People v. Maerling, 46 NY2d 289, 302-303 [1978]). Accordingly, the defendant’s motion to suppress this statement is denied.For the reasons set forth above, the defendant’s motion to suppress is denied in its entirety.This constitutes the Decision and Order of the court.Dated: Brooklyn, New YorkNovember 16, 2018
