The defendant, Javante Jones, moves to suppress physical evidence and his statements. The defendant is charged in a four count indictment with the crimes of criminal possession of a weapon in the second degree (PL §265.03 (1) (B)), criminal possession of a weapon in the second degree (PL §265.03.3), resisting arrest (PL §205.30) and unlawful possession of marijuana (PL §221.05). A Mapp/Huntley/Dunaway hearing was held before this Court on July 23, 2014, October 1, 2014 and October 3, 2014. The People presented two witnesses, Police Officer Michael Butler and Sergeant Mary Picone. The defendant presented one witness, Kenneth Mitchell. Significant issues of credibility, that directly bear on the suppression issues to be determined by this Court, were raised by the testimony of Police Officer Butler. Furthermore, for reasons discussed in herein, this Court finds the testimony of Kenneth Mitchell to be of limited value with regard to the critical issues to be determined herein. This Court has also considered the non-testimonial evidence including photographs and a DVD recording.

On January 15, 2014, Police Officer (hereinafter P.O.) Michael [*2]Butler of the New York City Police Department Anti-Crime Unit, was working the 12:00 p.m. to 8:35 p.m. tour with his partner, P.O. Daniel Haggerty. During this tour, the plain clothes officers patrolled, in an unmarked police vehicle, the surrounding areas of Sutphin Boulevard, Liberty Avenue and 110 Avenue in Queens County. Although the aforementioned location was experiencing a high volume of burglaries, P.O. Butler was not aware of any such crime reported at the time and place in issue in this case.

At approximately 2:50 p.m., P.O. Butler was operating the aforementioned vehicle and traveling northbound on Liverpool Street when he observed the defendant and an unapprehended black male walking on Liverpool Street and South Road. According to P.O. Butler, as he approached the defendant and the male, the men went towards a black gate of a private residence. The officer claimed that he then observed the men looking over the gate as one man (or both men) stood on their "tippy toes" and pulled or "tugged" on said gate(P.O. Butler was unable to tell this Court the address of this residence. P.O. Butler was also unable to tell this Court the distance between himself and men at the time of the initial observation and could not recall the speed in which he was driving).

At no point did P.O. Butler observe any of the men open the gate or enter the fenced in area of the property. There was no evidence presented at this hearing indicating that the gate or fence in question was damaged or that the property in question exhibited any indicia of burglary. There was also no evidence that the officer observed the defendant or the un-apprehended other, possess any items that can be characterized as burglars tools or that can be described as possible contraband obtained from a burglary.

Photographs of the fence in question show a structure consisting of several rows of black bars which are approximately 5 feet in height. Each bar appears to be approximately 3 inches apart from each other and the premises that the bar surrounds is clearly visible through and above the structure.

Upon observing the defendant and unapprehended male at the aforementioned gate, P.O. Butler proceeded to stop his vehicle a few feet away from the men. The officers then exited the vehicle. As P.O. Butler began to approach the defendant and before any words were spoken, the defendant, and presumably the unapprehended other, immediately fled on foot.(PO Butler was unable to tell this Court what if anything happened to the unapprehended male).

P.O. Butler immediately pursued the defendant. The defendant ran a few feet ahead of the officer, repeatedly looking back towards him as he ran. During the pursuit, from approximately 13 or 14 feet away, P.O. Butler claimed that he observed the defendant reaching into the inner breast pockets of his jacket as a substance that he recognized to appear to be loose marijuana, began to fall [*3]from the defendant's pockets to the ground. The pursuit ended after less than two blocks of running when, according to P.O. Butler, the defendant slipped and fell.

P.O. Butler caught up to the defendant shortly thereafter at Liverpool Street and 107 Avenue. The officer placed his body on top of the defendant and, with assistance from P.O. Haggerty, attempted to put handcuffs on him. P.O. Butler claimed that at the time he placed handcuffs on the defendant, he did so to arrest him for the loose marijuana he observed falling out of the defendant's pockets during the chase. Without being questioned, the defendant then blurted out, "I have a gun".

P.O. Butler then reached into the inner left jacket pocket of the coat being worn by the handcuffed defendant. There, he recovered a loaded .38 caliber Smith and Wesson firearm. The officer also recovered an opened clear plastic sandwich bag containing marijuana inside the jacket.

By this time, additional police personal had arrived on the scene and the handcuffed defendant was escorted to P.O. Butler's vehicle. The entire encounter, from the time the defendant was initially observed by the officers to the time he was placed in the back of the police car, occurred in a span of approximately three minutes.

At no point did the officer investigate or inquire of the defendant or the unapprehended other whether they lived at the location or whether the occupants of the residence knew either gentlemen. No marijuana was recovered from the ground.

Kenneth Mitchell is an 18 year old man who currently lives at 107-30 Liverpool street in Queens County. He has known the defendant for approximately 3 or 4 years and lives a few blocks away from the defendant's home. The two men have also worked together at McDonalds. The relationship with the defendant and Mr. Mitchell is close, "like a brother". On the relevant date and time, Mr. Mitchell was responsible for caring for his 3 year old nephew. He was sitting on the front steps of his home when he observed the defendant, who he says he had been expecting to visit him, walking towards him on 107 street and Liverpool Street. (Mr. Mitchell was unable to tell this Court whether the defendant was alone or with someone else at this time). From approximately one block away, Mr. Mitchell observed an unmarked black Impala, a vehicle he assumed was a police vehicle, approach the defendant. As the two officers exited the vehicle, Mr. Mitchell saw the defendant take off running. The defendant ran for less than a block when, according to Mr. Mitchell, he saw an officer tackle the defendant to the ground. Despite indicating for this Court on the photographs admitted into evidence a short distance of approximately 3 to 5 feet as the duration of the defendant's flight, Mr. Mitchell maintained that he believed the defendant ran for approximately "20, 30 seconds" before he was caught. It is [*4]clear from this Court's inspection of the photographs that given the short distance of the chase, it is impossible that the pursuit lasted for the time period Mr. Mitchell claimed. Of note, on the relevant date and time in question Mr. Mitchell was on probation for robbery. (Mr. Mitchell received a youthful offender adjudication for this matter). Furthermore, Mr. Mitchell did not observe and could not speak to any actions of the defendant or the police prior to the pursuit and thus this Court finds little value in his testimony as to the suppression issues to be determined herein.

Sergeant (herein after Sgt.) Mary Picone is an investigator who has worked for Queens County District Attorney's Office for 19 years. For 7 years she has been responsible for conducting interviews in Queens County central booking and has conducted approximately 10,000 interviews during this time. On January 16, 2014, at approximately 12:50 p.m., after the defendant was fingerprinted and processed for the aforementioned charges, Sgt. Picone requested that a correction officer remove the defendant from the pens. He was then brought to the central booking interview room. A DVD recording of said interview was admitted into evidence.

This Court credits the testimony of Sgt. Picone that the video recording is a complete and accurate recording depicting the interview conducted with the defendant on January 16, 2014, in its entirety.

Before the interview began, the defendant was informed of the charges and advised of his rights under Miranda. He agreed to speak and stated, in sum and substance, that he ran from the police because he had marijuana on him and was on probation. The defendant claimed that minutes before his arrest he had taken a jacket from a friend's house, put it on, and walked outside with that friend. The defendant claimed that at the time he tried the jacket on, he was not aware that a gun was inside the sleeve and only felt the weapon after the officers accosted him. The defendant denied any knowledge and ownership of the weapon and denied making any statements which referred to him having a gun. He claimed the told the police he ran because he "had marijuana on him". He denied ever saying he had a gun because "who would say that?".

After careful consideration of the arguments in the motion papers submitted by the parties, the court record, a review of the all admitted evidence and the appropriate statutory and case precedent, this Court finds as follows:

The Court of Appeals in People v DeBour, 40 NY2d 210 (1976) outlined four levels of police intrusion and degree of knowledge needed to justify each level. To briefly review:

Right to approach and request information (requires an objective credible reason),

Common law right to inquire (requires a founded suspicion that criminality is afoot),

Right to stop and detain (requires a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or a misdemeanor); and

Right to arrest (requires probable cause to believe that a person has committed a crime, or offense in his presence).

See DeBour at 223.