The opinion of the court was delivered by: Laura A. Ward, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Pursuant to a decision by Justice Charles Solomon, dated March 4, 2008, this Court conducted a Huntley/Dunaway/Rodriguez hearing*fn1 on September 11, 2008. The Huntley aspect of the hearing related to five statements noticed in the voluntary disclosure form.*fn2 The Rodriguez aspect of the hearing related to three "confirmatory photo" identifications noticed in the voluntary disclosure form. Following the hearing the parties submitted briefs.
Two witness, Detectives Daniel Hull and Antonio Rivera were called to testify at the hearing. Detective Hull is an 11 year veteran of the New York City Police Department. Transcript of the hearing ("Tr.") at p. 4. He was promoted to detective in January of 2008. Tr. at 4-5. Detective Rivera is a 24 year veteran of the New York City Police Department. Tr. at p.75. Both detectives testified credibly.
The testimony revealed that on October 2, 2007, at approximately 9:30 am,
Detective Hull was called to 131st Street and 7th Avenue in New York County. Tr. at p. 6. When he arrived Detective Hull saw police and ambulance personal. Tr. at pgs. 6-7. He observed a body, later identified as Candell Robinson, lieing on the floor. Tr. at pgs. 8 - 9. There were bullet holes in Mr. Robinson's chest. Tr. at p. 8. Detective Hull also saw dice at the scene. Tr. at pgs. 91 and 97. Detective Wenzel approached Detective Hull and told Detective Hull that he was in the area when he heard shots fired. Tr. at p. 10. Immediately after hearing the shots, Detective Wenzel saw Terrell Rice running from the area with his hand in his waistband and enter 200 West 131st Street. Tr. at pgs 10 and 98 - 99. Detective Wenzel also told Detective Hull that someone said that T Mack*fn3 had shot Robinson. Tr. at p. 99.
Based upon Detective Wenzel's statement, Detective Hull proceeded to Rice's home, 200 West 131st Street, apartment 10G. Id. There was no response to Detective Hull's knocks on the door of apartment 10G. Id. Detective Hull contacted the detective squad at the 32nd Precinct to have a photograph of Rice generated to be used by officers who were canvassing 200 West 131st Street looking for Rice. Tr. at pgs. 10 - 11, 77 and 102.
While canvassing the building a police officer found a 9mm gun, on a hook inside the incinerator on the 7th floor of the building. Tr. at pgs. 13 and 102. When an officer arrived on the second floor of the building, he showed the resident of apartment 2H the photograph of Rice. Tr. at p. 14. The resident told the officer that the man, who he knew as "T" had entered his apartment, said the police were looking for him and kicked the resident out of his apartment. Tr. at pgs. 14 - 15 and 78.
Police officers from Emergency Services Unit ("ESU") were called to the building. Tr. at p. 15. ESU observed Rice through the peephole to apartment 2H. Tr. at p. 16. He was pacing back and forth. Id. The police tried to speak to Rice by calling the telephone in apartment 2H, but Rice did not answer the telephone. Id. At approximately 2:30 pm, with the permission of the resident of apartment 2H, ESU entered apartment 2H and arrested Rice. Tr. at pgs. 16 - 17. Rice was hand-cuffed and escorted out of apartment 2H. Tr. at p. 80. He was turned over to Detective Rivera who testified that when he grabbed Rice to transport him back to the precinct, Rice said "I didn't shoot nobody. Why you hunting me down? You can check my hands for residue." Tr. at. p. 81. Detective Rivera testified that Rice made these statements spontaneously. Rice was not questioned or threatened, nor was he given his Miranda rights. Rice was, however, hand-cuffed and under arrest. Tr. at p. 81 - 82.
Rice was placed in a patrol car and taken to an interview room at the 32nd Precinct. Tr. at pgs. 17 and 82. He was not questioned while being transported to the precinct. Tr. at p. 19.
Once back at the 32nd precinct, around 3 pm, Detectives Hull and Walla joined Rice in the interview room. Tr. at pgs. 17 and 111. Over the course of the next 15, 20, 25 or 30 minutes, both detectives spoke to Rice. Tr. at pgs. 26 and 113 - 114. They asked questions to obtain pedigree information and laid out the facts of the case as they understood those facts to be. Tr. at pgs. 19 - 22, 121 - 123. The detectives also asked Rice if he had been at the scene and if he was playing dice. Tr at p. 124. Rice did not respond to either question. Id.
Rice was informed that Detective Wenzel placed him at the scene of the shooting, that they found the gun and would be able to match it to the bullets and casing found at the scene and that a witness said Rice had pushed his way into apartment 2H after telling the witness the police were looking for him. Tr. at pgs. 19 - 21. The detectives explained "how this situation was going from here. Tr. at p. 21. We explained that we "had a witness, usually a lineup would be conducted depending on how the investigation goes." Tr. at pgs. 21 - 22. The detectives also told Rice that DNA technology was available and that they could get prints off the gun found at 200 West 131st Street. Tr. at p. 131. The detectives told Rice words to the effect that "The only person who can explain . . . why something like this happens is the person who did the shooting." Tr. at p. 138. Although no threats were made and the detectives testified they only asked pedigree questions and were not confrontational, their conversation elicited a response. Rice began to cry. Tr. at p. 139. At approximately 3:25 pm, Rice said "I didn't mean to kill him. I just meant to shoot him." Tr. at p. 23.
Immediately thereafter, "Detective Walla produced the Miranda sheets" and proceeded to give Rice his Miranda warnings. Tr. at pgs. 23 - 24, 31 - 34 and 111 - 112. Rice appeared to understand the warnings, indicated he was willing to speak with the detectives without counsel and signed the Miranda warnings paper. Tr. at pgs. 24, 26 and 34 - 35. The defendant then described what happened. The defendant cried and confessed to the shooting. Tr. at p. 140. He stated in part, that in response to Candell Robinson "dising" him and his family he went home and got a gun. He returned and only meaning to scare Robinson, shot him seven times. Rice also said in response to a question about other shots fired that "My boys got my back. Those shots were in the air," referring to the fact that there were people positioned on the roof to protect Rice when he returned to confront Robinson. Tr. at pgs. 38 - 40.
Rice talked for approximately one half hour. Tr. at p. 35. After Rice completed making his statement, Detectives Hull and Walla asked him to repeat his statement so that they could write it down. Tr. at p. 36.*fn4 Detective Walla began writing the statement at 4 pm. Tr. at 39. It took approximately 45 minutes for the statement to be reduced to writing. Tr. at 39. After the statement was written, Rice was shown "the pad and [asked if he] would like it read back. . . . . [He] said I watched you write it and I heard it. I am good with ...