DECISION AND ORDER The defendant, May Betances, is charged with Criminal Possession of a Firearm (PL 265.01-b[1]). On August 28, 2019, the court held a Dunaway/Huntley hearing. Both the People and the defendant submitted written arguments and memoranda of law and defense counsel filed a reply. The court makes the following findings of fact and conclusions of law. FINDINGS OF FACT At the hearing, the People presented testimony of Police Officer Caprice Thompson (“Officer Thompson”). The court finds her testimony to be credible. Officer Thompson testified that on January 22, 2019 she was working patrol with her partner, Officer Williamson. At approximately 4:05 PM, she was at the 75th precinct, taking a report from an individual named James Clokey. Mr. Clokey stated that on January 19, 2019, an individual named Kahleem Small menaced him with a firearm at 324 Bradford Street, Apartment C1. Mr. Clokey informed Officer Thompson he had let Mr. Small and the defendant stay in his apartment for some time. Officer Thompson and Officer Williamson went to the apartment and entered using a key provided by Mr. Clokey. Although Officer Thompson was not wearing her own body cam on her arrival to the apartment, she used her partner’s body cam to video the entry1. Upon entry, Officer Thompson saw the defendant, as well as Kahleem Smalls and two children. The defendant and Mr. Smalls were both placed in handcuffs. At approximately 1:16 PM, the defendant was brought outside by Officer Thompson and Sergeant Martin, a field intelligence officer. Before Officer Thompson read the defendant her Miranda rights, Sergeant Martin stated: I’m worried about the little kid. He’s my main concern, because he’s five years old. He’s able to open drawers, open refrigerators, hop up on the beds, open closets, stuff like that, so I’m going to read you, Officer Thompson is going to read you some Miranda rights, same thing that you hear on TV. It’s plain English, all right, now, in order for me to engage and to talk to you more than the way I want to, the way you want to figure out, you have to answer the questions. Pay attention to the questions that are asked. Officer Thompson then read the defendant her Miranda rights and after waiving them, the defendant admitted to the police that she had moved the firearm and that it was inside of the apartment. According to the Sprint report the defendant was arrested at 1:36 PM. The defendant was transported back to the precinct. After obtaining consent to search the apartment from the leaseholder, a search was conducted. This search was also recorded on video. At 2:44 PM, a firearm was recovered from a purse in a drawer in a bedroom. At approximately 11:19 PM, while at the 75th Precinct, the defendant was again asked to waive her Miranda rights, this time by a detective. She did so and made a statement. CONCLUSIONS OF LAW 1. Dunaway/Huntley At a Dunaway hearing, the People have the burden of that there was probable cause to arrest the defendant (Dunaway v. New York, 442 US 200 [1979]]) and the legality of the police conduct (People v. Whitehurst, 25 NY2d 389 [1969]). Only after the People have met their burden, does the burden shift to the defendant to show the illegality of the police conduct by a preponderance of the evidence. At a Huntley hearing, the burden of proof is on the on the People to prove the voluntariness of the defendant’s statement beyond a reasonable doubt (See, People v. Anderson, 42 NY2d 35 [1977]). Furthermore, the People must demonstrate that any waiver of the defendant’s Miranda rights was done in a knowing and voluntary manner (People v. Rodney, 85 NY 2d 289, 292 [1995]). FIRST STATEMENT AND ARREST The People’s evidence demonstrated that the defendant was placed in handcuffs almost immediately upon police entry to the apartment. At that moment, the police had no probable cause to support her arrest as the only information they possessed was that a male had menaced Mr. Clokey in the apartment with a firearm. However, handcuffs may be used without necessarily placing a defendant under arrest if doing so is justified by the circumstances (People v. Foster, 85 NY2d 1012 [1995]). The court finds that the circumstances justified the defendant’s temporary detention. The police were responding to an apartment where a firearm had been used three days prior. Although the defendant was not alleged to have used the firearm, as an occupant of the apartment, it was reasonable for the police to assume she may have access to it. During this detention, the defendant was taken outside of the apartment and questioned by the police. The court finds that the manner in which she was questioned violated her Miranda rights. Specifically, the pre-amble to her Miranda warnings, in which Sergeant Martin expressed his concern for this child in the apartment, his reference to Miranda warnings on television and his statement “in order for me to engage and to talk to you more than the way I want to, the way you want to figure out, you have to answer the questions.” Taken together, this preamble minimized the consequence of waiving her Miranda rights and created an environment when the defendant could not fully appreciate the gravity of waiving her Constitutional right to remain silent (see People v. Dunbar, 104 AD 3d 198 [2nd Dept 2013]). Additionally, a reasonable person would interpret “you have to answer the questions” as not just the Miranda questions, but the questions that would follow. Therefore, as the defendant did not validly waive her Miranda rights, her statement outside the apartment must be suppressed. Nor did the police have probable cause to arrest the defendant at that time. However, subsequent to the defendant’s transport to the precinct the police developed probable cause after a consent search of the apartment revealed a firearm2. SECOND STATEMENT Defense counsel moves this court to suppress the defendant’s statement made at the precinct as fruit of the poisonous tree (see Wong Sun v. United States, 371 US 471 [1963]). First, the court finds that it does not appear that there was anything inherently coercive about the conditions surrounding the questioning at the precinct. The defendant also appeared to have validly waived her Miranda rights, in contrast to the earlier invalid waiver. While the fruit of the poisonous tree doctrine provides for suppression of indirect evidence obtained as a result of illegal police conduct, certain exceptions exist (See Nardone v. United States, 308 US 621 [1991]). Attenuation of taint allows for such poisonous fruit to survive based on a balancing of three factors: (1) the duration of time between the illegal police conduct and the confession; (2) the presence of intervening factors and (3) the purpose and flagrancy of the official misconduct (People v. Harris, 77 NY2d 434 [1991]). In this case, the defendant’s confession at the precinct came approximately 10 hours after the illegal arrest. In the interim, a firearm was recovered from the apartment where she was staying. The court finds that the police misconduct in arresting the defendant before developing probable cause, while premature, was not malicious police misconduct. Therefore the taint from the originally illegality was sufficiently attenuated from the statement taken at the precinct. Finally, this court must determine whether the time between the Miranda violation and the second statement constituted a “single continuous chain of events” as to warrant suppression of the second statement (People v. Chapple, 38 NY2d 112 [1975]). To make that determination, this court must consider the length of time between the Miranda violation and the subsequent statement, whether the same police personnel were involved in both statements, whether there was a change in location, the circumstances of the Miranda violation and whether the defendant expressed a willingness to speak to the police prior to the Miranda violation. In sum, the court must determine whether there was a “definite, pronounced break in the interrogation” to eliminate the taint from the prior statement (People v. Paulman, 5 NY3d 122 [2005]). Applying that standard to the case at hand, the questioning at the precinct was not done by Sergeant Martin, but by another officer, about 10 hours later. The original Miranda violation did not arise from a failure to read the warnings, but a deficiency in how they were administered. The location of the second statement was far removed from the apartment and the defendant continually expressed an interest in speaking to the police. Taken together, the court finds that there was a definite, pronounced break in interrogation and any taint from the original Miranda violation had been dissipated. Accordingly, this court finds the defendant’s statement at the precinct should not be suppressed. Accordingly, it is hereby: ORDERED, that the defendant’s motion to suppress her statement at the apartment is granted; and it is further ORDERED, that the defendant’s motion to suppress her statement at the precinct is denied. This case is scheduled for trial in Part GP-29 on October 16, 2019. This opinion shall constitute the decision and order of the court. Dated: October 1, 2019
