DECISION AND ORDER I. Preliminary Statement and Procedural History The Defendant is charged with Murder in the Second Degree [PL §125.25-1] and other related charges. This matter was sent to Part 12, forthwith from Part 45, for a combined Dunaway/Mapp/Huntley hearing. The hearing was conducted on June 14, 2023. There were three witnesses who testified. There were five items admitted into evidence, on consent, to wit: People’s #1 [Video/Audio BodyCam footage from the date of the arrest --- PO M. Cooper and PO A. Soulier], People’s #2 [Video/Audio Body Cam footage from the date of the arrest --- PO M. Cooper and PO A. Soulier], People’s #3 [Photograph of two one-way Bus Boarding Passes], People’s #4 [NYPD Property Clerk Invoice, and People's #5 [Video/Audio from the 5th Precinct interrogation room, post-arrest]. Counsel submitted post hearing written summations. The People’s Post-Hearing submission provides that “The final statement noticed in the People’s Initial Disclosure Form as statement #6 is respectfully withdrawn, and no evidence of such was introduced at the hearing.” No additional evidence was heard or reviewed for the purpose of this Decision and Order. II. Facts A. Testimony of Police Officer Marlon Cooper NYPD Police Officer Marlon Cooper hailing from the 5th Precinct in New York County, testified that he has been a member of the NYPD for approximately seventeen and a half years. He was on patrol in Sector Adam on July 19, 2021, working an assigned tour of 03:00-11:35. His partner for this shift was Officer Shantell Mathis. While driving a marked patrol car, he responded to a “34″ otherwise known as an assault in progress, transmitted to him via radio. The location provided was 100 Hester Street, in New York County. During his testimony, Officer Cooper identified the Defendant in the courtroom as the person he arrested at the scene. Upon responding to 100 Hester Street, Officer Cooper observed Officer Soulier and Lee struggling with a handcuffed young woman and intervened to help take her into custody. He physically held her on the sidewalk, as she tried to get away from the Police Officers at the scene. Officer Cooper’s body-worn camera footage was played in its entirety [approximately 18 minutes] in the courtroom. The officer’s interaction ends when the Defendant goes inside an ambulance at the scene, purportedly for medical assessment. B. Testimony of Police Officer Adrien Soulier Officer Adrien Soulier, a four-year member of the NYPD, assigned to the 5th Precinct, responded to a radio call on July 19, 2021, at 100 Hester Street, for a “34″ or an assault in progress. The call provided him with a description of a black female wearing a black hat, white tank top, black sweatshirt around the waist, blue jeans with a female black child. Officer Soulier identified the Defendant in the courtroom at the time of the hearing, to be the person that he interacted with at the scene on July 19, 2021. When the officer arrived on the scene, people began to point out the Defendant, and he began to walk toward her. The officer testified that he saw a little girl crying all by herself, and he began running faster toward the girl and the Defendant. Witnesses came forward pointing out the Defendant and alleged that the Defendant threw the little girl on the ground multiple times and dragged her along Forsyth Street in the vicinity of Hester Street. The Detective requested a supervisor via radio, acknowledging that this was an arrest situation. When approached by Officer Soulier, the Defendant tried to walk away, and Officer Soulier grabbed her wrist to keep her on the scene. A struggle ensued, and while trying to flee, the Defendant kicked down her daughter (the little girl) and during the struggle, the responding officers were able to handcuff the Defendant. Officers Cooper and Lee were suited with body camera, both of which fell off their person, and on to the ground during the struggle. When the struggle subsided, the officers picked up the cameras and re-installed them on their uniform. Mistakenly, Officer Soulier picked up Officer Lee’s camera, and vice versa. At this point, they were wearing the other’s camera for the duration of the interaction with the Defendant. The body camera footage captured the entirety of the interaction between the officers and the Defendant, despite the mix up after the struggle. The body cam footage was played in its entirety during the hearing. Contemporaneous with the arrest, a bag was recovered, as it was dropped by the Defendant during the struggle. The bag belonged to the Defendant. It was clear to the Officer that the Defendant was an emotionally disturbed person in need of medical attention, and as such, he postulated that she would be going to a hospital, via ambulance. As such, the officer opened the bag to locate the Defendant’s Identification, as she would not provide same to the officer. The identification information was allegedly obtained to make notifications for Administration for Children’s Services, State Registry, and arrest paperwork. The Defendant was placed under arrest and was transported by ambulance to Bellevue Hospital, accompanied by Officer Lee. When asked about the search of the Defendant’s bag, the officer testified that “she was searched to make sure that she has no contraband or weapons on her; that, you know, she’s safe to be placed in the cells; and, to itemize everything she has on her, to avoid any claims in the future against us” [See transcript page 24]. Several items were recovered because of the search, namely, a belt, a hat, two bus tickets, and a red tube. Many other items were inventoried and vouchered, including clothing, debit/credit cards [one of which was in the name of Mindy Jones], and a driver’s license in the Defendant’s name. The black hat, matched part of the description provided to the officer by the witnesses and the radio call. The officer testified that the bag was well organized, everything was neat and folded, with clean clothes provisions for the child. Each item in the bag was vouchered/inventoried. Although typically, perishable items are not vouchered, Officer Soulier received direction from Detective Lasky of the 120 Precinct to voucher everything. The body camera video showed the Defendant acting erratically in the patrol car on the way to the precinct, and while at the precinct she was making statements while in the vicinity of the front desk, that were not elicited by any member of the NYPD. She was talking to herself, yelling, cursing, and making lots of statements. She became so erratic and seemingly emotionally disturbed to the officers, that they called EMS and she was removed to Beth Israel Hospital where she was evaluated and treated for “acute stress disorder” and “first break psychosis.” On July 20, 2021, the Defendant was administered with and prescribed the following medication, to wit: Thorazine 50mg, Haldol 5mg, and Ativan 2mg. Patrol Personnel were dispatched to transport the Defendant from the Hospital to the 5th Precinct on July 20, 2021, where she was interviewed by Detective Eric Torres at approximately 2:00 PM. C. Testimony of Detective Eric Torres Detective Eric Torres, a nine-year veteran of the NYPD and member of the Staten Island Homicide Squad testified that he attempted to conduct an interview of the Defendant on July 20, 2021. The testimony shows that he arrived at the hospital as the Defendant was about to be discharged. He claimed that he conferred with her physician1. The Detective alleged that the physician informed him that the Defendant was given medication. He claimed to inquire as to whether the medication would prevent him from being able to speak to the Defendant, and whether it would cause the Defendant to be unable to understand him and answer his questions. He testified that the physician said that the medication would not. He then caused the Defendant to be transported to the Detective Squad of the 5th Precinct, and later to the interrogation room. Detective Torres testified that he entered the interrogation room and introduced himself to the Defendant. The Defendant then invoked her Fifth Amendment rights. The Detective pressed her with questions as to what that means. He then gives her some background history on Miranda, to which she claims she knows all about “the Mexican man”. She asked about her child, and he tells her that the child was safe and okay [Hrng Transcript Page 47, Lines 22-24]. The Detective begins reading from a Miranda card, and asks the Defendant is she will cooperate to listen to the Miranda warnings, and to convey whether she understands or does not. The Defendant is non-complaint, and again invokes the Fifth Amendment, questioning why the Detective is persisting in asking her questions, and whether he is educated on the law. The Detective peppers her with more questions about the child, and the Defendant refuses to answer. Then, the Detective diverts from the Miranda protocol, and at 16:45:36 makes the following statement: “That’s what I wanted to talk to you about, the man that violated your daughter.” The Detective pauses and the Defendant responds at 16:45:39 “I don’t know what happened to his head. I don’t know what’s going on with him. I’m just keeping my daughter as far away as possible. So try and take her somewhere fun. You know where my daughter is. Why can’t I call someone to come get her.” The interaction concludes, and the Defendant again is offered something to drink, and she is asked whether she wishes to retain her sweater with her in the cell she was bout to be brought to. II. Conclusions of Law a. Dunaway/Mapp Issues A police officer may arrest a person without a warrant when the officer has probable cause to believe that the person has committed a crime (People v. Johnson, 66 NY2d 398 [1985]). While probable cause does not require the same quantum of proof needed to warrant a conviction, it does require sufficiently specific and detailed descriptions and circumstances which would lead a police officer to reasonably conclude that the Defendant was the perpetrator of the crime (People v. Harris, 224 AD2d 711 [2d Dept 1996]. See also People v. Bigelow, 66 NY2d 417 [1985]; People v. Kennedy, 282 AD2d 759, 759-60 [2d Dep't 2001]). The radio transmissions relayed the descriptions provided by the 911 callers. The description that was provided included: “female black, wearing a hat, white tank top, black sweatshirt around the waist, blue jeans, followed by a little girl with braids.” Upon responding to the scene, numerous individuals pointed the officers in the direction of the Defendant and informed the officers that they had observed the Defendant assault the child. The officers observed the Defendant, matching the description provided, along with the child with braids. The officers also observed the child crying, visibly upset. People’s Exhibit #2 depicts a civilian witness pointing out the Defendant what stating in sum and substance “She threw this little girl on the floor and assaulted another woman.” The same civilian repeated the same allegations a second time. Other civilian individuals can be observed in the video, approaching the officers and corroborating the information. With this information, PO Soulier called for a supervisor, acknowledging that he was about to place the Defendant under arrest. At the time of the arrest, the Defendant was charged with Assault [PL §120.05[9]] and Endangering the Welfare of a Child [PL §260.10[1]]. Although the Defendant claims that no physical injury was observed by the officers at the scene, physical injury is not necessary to sustain the charge of Endangering the Welfare of a Child. It is well established that police officers have a right to rely upon information furnished by private citizens who report crimes that they have witnessed or that were perpetrated against them (see, People v. Cunningham, 135 AD2d 725 [2d Dept 1987]; People v. Robinson, 147 AD2d 596 [2d Dept 1989]). A police officer who acts upon such information possesses probable cause to arrest and search an individual accused by the named citizen (see, People v. Brnja, 50 NY2d 366 [1980]; People v. Hicks, 38 NY2d 90 [1975]). Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place (People v. McRay, 51 NY2d 594, 602, [1980]; see also, Brinegar v. United States, 338 US 160 [1949], 175, reh denied 338 US 839 [1949]). The legal conclusion is to be made after considering all the facts and circumstances together. Viewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found (see generally, Illinois v. Gates, 462 US 213, 231-235 [1983]; United States v. Davis, 458 F2d 819, 821 [1972]; 1 LaFave, Search and Seizure §3.2 et seq.) At the scene, and incident to the arrest, it was necessary to determined pedigree information of the recalcitrant Defendant, as well as the minor child she alleged to be hers. The Defendant’s bag was opened for that very purpose. At the precinct, it became necessary for the officer to conduct a standard inventory search. The testimony adduced at the hearing shows that the PO Soulier had a legitimate purpose for the search, and that he followed the procedures in effect conducting an inventory of property at the precinct. Based upon the information provided, as well as PO Soulier’s own observations, the police had probable cause to believe that the Defendant had committed a crime when she was placed under arrest. In sum, this court concludes that the totality of the information known to PO Solier, together with the reasonable inferences to be drawn therefrom, would clearly warrant a prudent person to believe that an offense had been or was being committed. Any property recovered from the Defendant was pursuant to a lawful search incident to her arrest. That being so, this court concludes that there was probable cause for the Defendant’s arrest and that, accordingly, the branch of her motion which sought to suppress physical evidence is DENIED. b. Dunaway/Huntley Issues It is well settled that the burden of proof as to the voluntariness of Defendant’s statement is on the People. The Court must find voluntariness beyond a reasonable doubt before the statement can be submitted to the jury (See, People v. Huntley, 15 NY2d, 72 [1965]. Of course, “[p]robable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt” (People v. Mercado, 68 NY2d 874, 877 [1986]). Rather, it must be “more probable than not that a crime has taken place and that the one arrested is its perpetrator” (People v. Carrasquillo, 54 NY2d 248, 254 [1981]. It is well-settled that information provided by an identified citizen is sufficient in and of itself to provide a police officer with probable cause (See Petrychenko v. Solovey, 99 AD3d 777 [2d Dept 2012 [(internal citations omitted); Norasteh v. State of New York, 44 AD.d 576 [1 Dept 2007]; People v. Taylor, 61 AD3d 537 [1 Dept 2009]. i. Timeline: Initial Encounter to Arrest This court has seen the video and has reviewed it several times in preparation of this Decision and Order. All the Defendant’s statements at the scene were captured by body worn camera video, entered evidence in the hearing. Volunteered statements are admissible provided that the defendant speaks with genuine spontaneity and not because of “inducement, provocation, encouragement or acquiescence, no matter how subtly employed” (See People v. Soboloff, 10 AD2d 903 at 904-905 [1985], quoting People v. Maerling, 46 NY2d 289 [1978]). The Defendant’s mere presence among police officers, who were performing routine police functions, does not lead to the inexorable conclusion that her will was thereby overborne. There is no testimony or other evidence to suggest that the Defendant’s statements during the initial encounter, and up to the arrest, were none other than voluntary unprovoked statements. As the Defendant was neither in custody, nor being questioned, the initial statements are admissible. ii. Timeline: Arrest to Second Hospital Discharge It is clear, that once the Defendant was placed in handcuffs, she was in custody. The Defendant invoked the Fifth Amendment, presumably of the US Constitution, on several occasions while in custody. She claimed that once invoked, she should not be questioned any further, according to a statement made to Detective Torres at the precinct, as he was attempting to administer Miranda warnings. Despite invoking the Fifth Amendment, the nature of the questions asked by the police from the time of the arrest until the time the Defendant entered the interrogation room, were all in the nature of pedigree information, and are admissible under the pedigree exception pursuant to which, answers to questions reasonably related to police administrative concerns fall outside the protections of Miranda v. Arizona (384 US 436 [1966]) (see Pennsylvania v. Muniz, 496 US 582, 601-602 [1990]; People v. Rodney, 85 NY2d 289, 292-293 [1995]). In Rhode Island v. Innis (446 US 291 [1980]), the Supreme Court defined interrogation to “extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response” (id. at 302). However, a question which falls within the scope of interrogation under Rhode Island v. Innis does not for that reason fall outside the pedigree exception. Outside of the pedigree inquiries, the Defendant’s statements during this time were spontaneous and not provoked by police questioning. The statements are easily heard on the audio/video footage admitted into evidence at the hearing. Much of the Defendant’s statements were non sequiturs, rantings, and ramblings, that did not fit the situation she was in. These statements were clearly voluntary, and such statements are admissible in the absence of Miranda warnings. Although incriminatory statements are not rendered spontaneous simply because they are precipitated by subtle forms of interrogation rather than blatantly coercive techniques (see People v. Garofolo, 46 NY2d 592, 603-604; People v. Maerling, 46 NY2d 289, 301-303; People v. Howard, 47 NY2d 988, 989), the nature of the brief exchange between the Defendant and the police officers in this case does not compel a finding as a matter of law that the statements during the noted timeframe, were not spontaneous. iii. Timeline: Second Hospital Discharge to Arraignment Detectives from Staten Island met the Defendant at the hospital, when she was discharged, this time, after having been prescribed and administered medication, to wit: Thorazine, Haldol, and Ativan. Although there was no testimony regarding same at the hearing, these prescriptions are commonly known as psychiatric drugs, commonly used to by psychiatrists and other physicians to treat mental illness or distress. There was no evidence adduced at the hearing to show that any of the medications, and/or a combination thereof, having been administered, would cause the Defendant to be incompetent or under any disability. Detective Torres testified that the Defendant was given a diagnosis of “Acute First Break Disorder.” The testimony as to the effect of the medication on the Defendant at or around the time of the custodial interrogation was uncontroverted. It was clear from the testimony and the evidence, that although he tried several times, he was unable to effectively administer Miranda warnings to the Defendant. The Defendant clearly invokes the Fifth Amendment twice while in the interrogation room. In connection with People’s #5 in evidence, there is a date and time stamp on the bottom of the screen. The date stamp remains constant, to wit: 7/20/2021. The time stamp is noted in hours, minutes, and seconds. Further to time stamp 16:43:00 Detective Torres tells the Defendant that asking her whether she understands the Miranda warning, is not interrogation. At 16:44:15, the Detective gives the Defendant a brief synopsis of US v. Miranda, to which the Defendant acknowledges that she knows, and even identifies the Defendant in that matter as “a Mexican man.” She appears to have knowledge of the facts of Miranda. She then claims, “I obviously known my rights, you can keep talking and I don’t have to say anything else.” At 16:45:04 Detective Torres states: “I don’t know why you have to be so condescending.” However, she continues without another question posed by the Detective stating “Two white men sleeping with each other called the cops so they can hold my daughter. They got what they wanted. And you read me my rights. Somebody been touching my daughter for two years. Probably smiling somewhere. Laying in some crackhead woman’s bed. I don’t understand. I’m in pain. You can read it off. I’m not deaf I hear you. I invoke my Fifth Amendment rights.” Then, the Detective diverts from the Miranda protocol, and at 16:45:36 makes the following statement: “That’s what I wanted to talk to you about, the man that violated your daughter.” The Detective pauses and the Defendant responds at 16:45:39 “I don’t know what happened to his head. I don’t know what’s going on with him. I’m just keeping my daughter as far away as possible. So try and take her somewhere fun. You know where my daughter is. Why can’t I call someone to come get her.” It is axiomatic that not every comment made by a police officer can be said to constitute interrogation merely because it is followed by an incriminating statement (People v. Rivers, 56 NY2d 476, 479 [1982]; People v. Lynes, 49 NY2d 286, 294-295 [1980]). Rather, the test is whether an objective observer with the same knowledge concerning the suspect as the police officer had would conclude that the remark or conduct of the police was reasonably likely to elicit an incriminating response (Rhode Island v. Innis, 446 US 291 [1980]; People v. Lynes, supra, 49 NY2d at p. 294; see, People v. Ferro, 63 NY2d 316 [1984]). It is clear to this court that the Defendant should not have been interrogated after having exercised her Fifth Amendment right several times, and twice in the interrogation room. Moreover, she went further when she plainly stated, “I obviously know my rights, you can keep talking and I don’t have to say anything else.” The questioning regarding the Defendant’s understanding of Miranda was fair game. Although the Defendant did not have to answer, such questions, under these circumstances are not considered interrogation. However, the Detective went too far when he [1] Stated “I don’t know why you have to be so condescending.” In response to her invocation of rights, and [2] When he stated, “That’s what I wanted to talk to you about, the man that violated your daughter.” There is no doubt in this court’s mind that the Detective knew or should have known that such statement would likely illicit incriminating statements by the Defendant, based upon the totality of the facts and circumstances of the instant prosecution. As the Innis case makes clear, “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response” (446 US, at p. 301). But, because “[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police” (id.), the question is not what was the subjective intent of the police but rather what words or actions, in light of their knowledge concerning the suspect, they “should have known were reasonably likely to elicit an incriminating response” (id., at p. 30 [italics in original]; White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 Mich L Rev 1209, 1231-1236; Kamisar, Brewer v. Williams, Massiah and Miranda: What Is “Interrogation”? When Does It Matter?, 67 Geo.L.J. 1, 19, n. 115 [reprinted in Kamisar, Police Interrogations and Confessions: Essays in Law and Policy, pp. 156-158, n. 21]; McCormick, Evidence [2d ed.], p. 330). The only possible object of the Detective in making the statement “That’s what I wanted to talk to you about, the man that violated your daughter,” is to illicit an incriminating statement from the Defendant. It does no violence to logic to conclude that the Detective should have known that it would do so. Therefore, any statements made by the Defendant [in the interrogation room, at the 5th Precinct] starting at 16:45:39 [in sum and substance: "I don't know what happened to his head. I don't know what's going on with him. I'm just keeping my daughter as far away as possible. So try and take her somewhere fun. You know where my daughter is. Why can't I call someone to come get her."] is hereby SUPPRESSED. III. Conclusion Based upon the foregoing, this court finds that [1] There was probable cause for the arrest, [2] That the search incident to the arrest and inventory derived was legal, and the physical evidence obtained therefrom shall NOT BE SUPPRESSED, and [3] That all the Defendant’s statements are spontaneous and ADMISSIBLE, except for statements made after time stamp 16:45:39 contained in People’s Exhibit #5 (admitted into evidence at the hearing) which are hereby SUPPRESSED based upon the foregoing. This shall constitute the Decision and Order of this Court after hearing. Contentions of the parties not included in this Decision and Order were considered found to be without merit. Statement # 6 in the Initial Disclosure Form is withdrawn by the People. The Clerk of the Court shall enter judgment accordingly. This matter is sent forthwith to Part 45 for decision/trial on July 20, 2023. Dated: July 19, 2023
