Legal Aid Society, New York City (
Roma Kesseram of counsel), for defendant.
Robert M. Morgenthau, District Attorney, New York City (
Michelle Warren and
Mark Crooks of counsel), for plaintiff.
OPINION OF THE COURT
RICHARD M. WEINBERG, J. This case had been referred to a judicial hearing officer to conduct a Dunaway/Huntley hearing. After reviewing the transcript of that hearing as well as the report of the hearing At the Gonzalez suppression hearing, the issue was whether the defendant had voluntarily accompanied the arresting officers from his home to the station house to be interviewed. The People's sole witness was the detective who had interviewed the defendant at the station house. This witness was not present when the defendant had been taken from his home but had been informed by the detectives who had been at the defendant's home that the defendant had voluntarily accompanied them. As Justice Brown pointed out in his dissent (173 AD2d at 847-848), with which the Court of Appeals agreed when it subsequently reversed the Appellate Division (see People v Gonzalez, 80 NY2d 883 [1992]):
"the only witness who testified on behalf of the People * * * took no part in the conduct to which the defendant now objects. He had no need to rely on the information provided to him by his fellow officers * * * [c]onsequently, his testimony in this regard is beside the point, and certainly was of no assistance in determining what happened when the nontestifying detectives took the defendant into custody * * * Also totally irrelevant was the fact that [the testifying] Detective * * * was `honest and forthright' * * * Indeed, under the majority's analysis, any `honest and forthright' third party could have supplied the same testimony as [the testifying] Detective * * * testimony which would have been based solely upon what others told the witness."
To argue, as did the People at the conclusion of the hearing in the present case, that any deficiency in proof had been overcome by the fellow officer rule is to misapprehend that rule. That rule applies in cases where the testifying officer's actions are based upon and justified by hearsay information received from another officer. In this case, Officer Perez had no involvement until after the defendant had been arrested and transported to a police station. He simply took charge of an already arrested prisoner, transported him to another police station, processed the required paperwork and questioned the defendant. Officer Perez' actions were based upon the fact of an arrest, not on any details which may or may not have been supplied by a fellow officer. In any event, as already noted, those hearsay details had been adequately challenged by the defendant so as to require the testimony of the arresting officer.
Since the People failed to produce a witness at the hearing with firsthand knowledge of the challenged police conduct, they have not met their initial burden of justifying that conduct. (
See People v Gonzalez, 80 NY2d 883 [1992].) Accordingly, the defendant's motion to suppress his statements under a
Dunaway theory is hereby granted.