Appeal by the People from an order of the Supreme Court, Queens County (McGann, J.), dated November 19, 2007, which, upon a decision of the same court rejecting the recommendation of a Judicial Hearing Officer (Demakos, J.H.O.), dated November 15, 2007, made after a hearing, granted that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
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 Official Reports.
WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, HOWARD MILLER and EDWARD D. CARNI, JJ.
(Ind. Nos. 252/07, 749/07)
ORDERED that the order is reversed, on the law, and that branch of the defendant's omnibus motion which was to suppress statements made by him to law enforcement officials is denied.
The defendant was a suspect in a series of robberies committed in Queens County between June 18, 2006, and September 20, 2006. On September 29, 2006, he was arrested by Nassau County police and questioned in Nassau County about crimes allegedly committed by him in that County. The same day, Detective Richard Dietrich of the New York City Police Department was informed of the arrest and traveled to Nassau County to question the defendant about the Queens robberies. Approximately 11 hours after the defendant was arrested, Detective Dietrich was given access to him. He administered fresh Miranda warnings (see Miranda v Arizona, 384 US 436) and elicited a waiver. Detective Dietrich then showed the defendant two surveillance photographs taken during a robbery of a Queens bodega. The photographs depicted a man holding a gun on the storekeeper. The defendant identified himself as the person holding the gun, and the detective noted that, in the photographs, the defendant was wearing the same green camouflage jacket he was wearing during questioning. The defendant signed the backs of the two photographs to confirm that he was the perpetrator depicted. The detective then questioned the defendant about four other robberies of Queens bodegas. The defendant made four oral statements relating to the separate robberies. The detective transcribed each statement, and the defendant signed each one without making changes.
Thereafter, the defendant was charged with the Queens robberies in two separate indictments. In an omnibus motion, he moved to suppress his statements on Fourth, Fifth, and Sixth Amendment grounds. In their response to the defendant's motion, the People consented to a hearing to determine the voluntariness of the defendant's statements (see People v Huntley, 15 NY2d 72), but they did not address that branch of the defendant's motion which alleged that the defendant's statements to Detective Dietrich were the suppressible fruit of a Fourth Amendment violation (see Dunaway v New York, 442 US 200). The court ordered a hearing to determine the lawfulness of the defendant's arrest as well as the voluntariness of his statements. At the hearing, however, the People failed to present any evidence with respect to probable cause for the defendant's Nassau County arrest.
The Judicial Hearing Officer (hereinafter the JHO) who conducted the hearing recommended that the branch of the defendant's omnibus motion which was to suppress his statements be denied. The JHO reasoned that the defendant's arrest by Detective Dietrich was lawful because the defendant already had been arrested by the Nassau County police. The JHO also concluded that the defendant's statements to Detective Dietrich were voluntarily made. The Supreme Court, however, rejected the JHO's recommendation and held that, by failing to present any evidence as to the lawfulness of the defendant's arrest in Nassau County, the People failed to meet their burden of going forward (see People v Dodt, 61 NY2d 408, 415; People v Berrios, 28 NY2d 361, 367; People v Moses, 32 AD3d 866, 868). The court denied the People's request to reopen the suppression hearing, rejected the People's argument that the statements to Detective Dietrich were attenuated from any unlawful arrest, and granted that branch of the defendant's omnibus motion which was to suppress the statements he had made to Detective Dietrich. We reverse.
Even assuming that the defendant was not lawfully arrested in Nassau County, the record establishes that his statements to Detective Dietrich were sufficiently attenuated from the arrest to dissipate any taint. Detective Dietrich did not question the defendant about the Queens County cases until some 11 hours after his arrest, and was not present in the room while the Nassau County police were questioning the defendant about the Nassau County crimes. When Detective Dietrich began questioning the defendant, he first advised the defendant of his rights and told him the scope of the Queens investigation. He did not ask the defendant anything about the questioning relating to the Nassau County case.
When taken together, the length of time between the defendant's arrest by the Nassau County police and the discrete questioning 11 hours later by a different detective about an entirely different subject, the administering of a fresh set of Miranda warnings, and the defendant's being shown the surveillance photograph capturing him perpetrating a robbery in Queens, constituted a definite and pronounced break sufficient to dissipate the taint of any prior illegality associated with the defendant's arrest (see People v Girdler, 50 AD3d 1157; People v Monk, 50 AD3d 925; cf. People v Paulman, 5 NY3d 122; People v Chapple, 38 NY2d 112). Accordingly, the defendant's statements to Detective Dietrich should not have been suppressed.
FISHER, MILLER, and CARNI, JJ., concur.
MASTRO, J.P., dissents, and votes to affirm the order appealed from, with the following memorandum
I respectfully dissent. The record reveals that the defendant sought in his omnibus motion to suppress inculpatory statements allegedly made by him to a Queens County detective following his earlier arrest and interrogation by Nassau County police, on the ground, inter alia, that the Nassau County police unlawfully had detained him without reasonable suspicion and had arrested him without probable cause. Following the receipt of the prosecution's opposition papers, in which the Queens County District Attorney consented to a hearing to determine the voluntariness of the defendant's statements, and did not address the legality of the defendant's arrest, the Supreme Court, Queens County (Griffin, J.), in an order dated July 9, 2007, directed that a Huntley hearing (see People v Huntley, 15 NY2d 72) be held. The order further provided ...