The opinion of the court was delivered by: Lewis Bart Stone, 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.
Defendant, Gary Brown ("Brown") is charged by indictment with one count of Manslaughter in the First Degree, Penal Law (PL") §125.20(1). On December 4, 2008, this Court held Dunaway, Huntley, Mapp and Wade hearings, argument upon which was heard on December 8, 2008. On that date this Court denied in its entirety Brown's Dunaway, Mapp and Wade motions and denied in part and granted in part Brown's Huntley motion. On December 16, 2008, the People moved to reargue that part of the Huntley motion granted by this Court, or to reopen the hearing on such aspect of such motion to introduce certain additional evidence. Brown opposed both reargument and reopening.
The People's reargument motion relates solely to two of the questions asked by the police when they stopped Brown which this Court, in its December 2008 ruling found inadmissible, thus effectively granting Brown's Huntley motion with respect to such statements. Police Sgt. Andrew Childs ("Childs") and another officer, while on patrol in a marked car, received a radio transmission of an assault that had just occurred in a nearby park together with a description of the alleged perpetrator. Seeing Brown who matched the perpetrator's description several minutes later, the officers pulled over their car. Brown seeing them stop, stopped walking and put his hands up although not in response to any command from the officers. Before stopping Brown, Childs radioed to request that eyewitnesses be brought over to see if they could identify Brown as the perpetrator. After exiting the police car, the officers asked Brown for his identification, which they obtained. What happened next, before the time a witness arrived and identified Brown as the perpetrator and Brown was arrested, is the basis of this motion to reconsider. According to Childs who was the sole witness as to this colloquy to testify at the hearing, this interchange was described as follows:
"[Brown] had identification that said he lived on Hancock Street in Brooklyn. I asked him if he still lived on Hancock. He said yes. I asked him what he was doing in the area. He said he was visiting friends. I asked him where he came from. He told me he didn't have to tell me."
No further testimony relating to the colloquy was elicited on direct or cross examination.
Under New York Criminal Procedure Law ("CPL") §60.45(2) a defendant's statement is inadmissible if it was coerced or, if obtained by law enforcement, obtained by certain improper promises or statements of fact or in violation of the State or Federal constitution. Here, there being no evidence of coercion or improper promises or statements, the Huntley hearing on the admissibility of the statements was addressed to the Federal constitutional Miranda rule*fn1 under which a statement made in a custodial interrogation before a defendant is given "Miranda" warnings is inadmissible.
This Court's December 8, 2008 ruling found that the third and fourth of the above statements regarding "visiting friends" and declining to answer Child's question were not admissible as the People had not met their burden of proving that Brown was not in custody and accordingly, that the statements, being the product of custodial interrogation where no Miranda warnings had been given, had to be suppressed.
In their motion to reargue the People ask this Court to reconsider its suppression of these statements on two grounds, viz, first, that the questions did not constitute "interrogation" for the purpose of the Miranda rule, and second, because the Court had improperly put upon the People the burden of establishing that Brown was not in custody (the People contend that the proper rule is that once the People establish the legality of the stop Brown had the burden to establish that he was in custody in order to invoke Miranda rights), and on the application of the proper rule to the testimony at the hearing, the Court should have denied Brown's motion to suppress the two statements. The People further requested that, in the event the Court did not on such grounds find the two statements admissible, the Court reopen the hearing to allow the People to introduce additional testimony.
Initially, the Court finds that the defense's objection to reopening the hearing for further testimony is proper. Absent extraordinary considerations, the People do not get second bites of the apple and must bear the responsibility of properly presenting their case at the hearing.
The People assert that the two questions this Court had suppressed were not "interrogation for Miranda purposes," citing People v. Greer, 42 NY2d 170 (1977) and People v. Huffman, 41 NY2d 29 (2976). In both such cases, the police came upon activities in progress and asked questions to clarify the situation, rather than to coerce a statement. In Huffman, the police saw a group of people at the back door of a delicatessen, and as they approached, the group split up and the defendant dived into nearby bushes. The question "what are you doing back here" which elicited an incriminating statement, was held to be non-interrogatory for Miranda purposes. In Greer, the asking officer, after hearing a call for help, and seeing a car with an open door and woman's sandal and purse on the ground in a deserted industrial area, saw a man and a woman and asked "what is going on here?" The man answered "this is my woman." The officer then asked "what is her name:" and the defendant replied, "I don't know." These questions were also deemed non-interrogatory for Miranda purposes and part of the "statutory permissible demand for an explanation of conduct." Here, however, Brown was not at the crime scene and the officers had already found the victim and learned that she had been assaulted. While on the basis of what the police had known, the officers had lawfully stopped Brown, the questions asked were not meant to clarify a problematic and developing situation.
Accordingly, that portion of the People's motion which seeks to reargue this Court's determination to grant a portion of Brown's Huntley motion on the grounds that the two suppressed statements were made as a response to questions which were not "interrogatory" under the Miranda rule is denied.
The People's alternate ground to seek reargument is based on the assertion that this Court had employed an incorrect rule as to which party had the burden of proving whether the questions whose answers this Court had suppressed were asked in a custodial setting. As no Miranda warnings had been given, if Brown was in custody at the time of the questions, Brown's responses were suppressible and if he was not his responses were admissible.
As the record of this hearing shows that the sum of evidence on this portion of the events, both on direct and cross is no more than the above quoted testimony of Childs, which this Court found to be credible, the burden of proof issue becomes critical. While the People offered no evidence that Brown was not in custody, Brown neither offered evidence, nor elicited testimony in cross examination of the People's witnesses to show that Brown was in custody at the relevant time. Further, as noted above there was no impropriety as to the stop of Brown, nor is that stop in controversy at this point in the proceedings. Accordingly, if ...