Defendant is before the court charged with three counts each of Climbing, Jumping or Suspending Oneself from Structures Prohibited, in violation of Administrative Code (AC) section 10-167(b)(ii), Criminal Trespass in the Third Degree, in violation of Penal Law (PL) section 140.10(a), and Trespass, in violation of P.L. section 140.05.

A combined Huntley/Dunaway/Wade hearing was conducted before this court on January 6, 2016. The sole witness at the hearing was Police Officer Robert White, who testified on behalf of the People. I find the officer to be credible. At the end of the testimony, the court heard oral arguments from both sides and adjourned the matter for decision.

I make the following findings of fact and conclusions of law:

Officer White has been a police officer with the New York City Police Department for 9 ½ years. On August 25, 2015, he was working on an anti-crime assignment which he described as a plainclothes unit that travels in unmarked vehicles and conducts pro-active police work. He was working with a partner when he received a radio run at approximately 2:30 PM of someone climbing a radio antenna at 500 19th Street in Kings County. The officer arrived at the location and saw that it was Bishop Ford High School and there was a large TV antenna, which exceeded 50 feet, right next to it. When he arrived at the location, Officer White saw members of the Fire Department speaking to a man on the sidewalk who he later identified at the hearing as the defendant Leonid Etkin. Officer White approached the firefighters and was told by the [*2]firefighters that the defendant was the person who they saw climb down the antenna. Officer White then asked the defendant why he climbed the ladder and whether he wanted to hurt himself or jump off the tower to which the defendant responded that he climbed it for thrills. At the time of defendant's statement, he was not under arrest, he was not in handcuffs, there were no guns drawn, and no promises or threats had been made to him. When asked where his partner was when the defendant made the statement, Officer White answered "probably next to me."

The firefighters directed Officer White to the individuals who called 911. Within one to two minutes after speaking to the firefighters and the defendant, Officer White went over to the individuals who he identified as Juan Morales and Peter Goyco, both of whom work for the owner of the antenna. Mr. Morales and Mr. Goyco were standing together on the sidewalk approximately 10 to 15 feet away from where the defendant stood with the firefighters. When Officer White went over to speak to Mr. Morales and Mr. Goyco, his partner remained with the defendant.

Officer White asked Mr. Morales and Mr. Goyco what happened and they responded that they saw the defendant climb the antenna, yelled for him to come down and that they called 911. They also told the officer that they took pictures of the defendant and watched him climb all the way down. Both Mr. Morales and Mr. Goyco pointed at the defendant as the person who they saw climb up and down the antenna. At the time they pointed out the defendant, the defendant was standing some 10 to 15 feet away with the firefighters and Officer White's partner. At the time, the defendant was not in handcuffs, the partner was not gesturing to the defendant in any way and the partner did not have his hands on the defendant. After speaking to Mr. Morales and Mr. Goyco, Officer White placed the defendant under arrest.

With respect to the Dunaway portion, the People have the initial burden of going forward to show by credible evidence that the police acted lawfully in their arrest of the defendant. "Probable cause [to arrest] requires the existence of facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that an offense has been or is being committed and that the defendant committed or is committing that offense" (People v. Bigelow, 66 NY2d 417 [1985]; People v. McRay, 51 NY2d 594, 602 [1980]). Here, Officer White received a radio run of a person climbing a radio antenna at 500 19th Street. At the scene, he was informed by firefighters that they saw the defendant climb down from the antenna. The defendant admitted that he climbed the antenna for thrills. Furthermore, Officer White spoke to two individuals, namely Juan Morales and Peter Goyco, who told him that they saw the defendant climb and all the way down the antenna, and that they called 911. The information provided by the firefighters and civilian eyewitnesses and the defendant's statement established sufficient probable cause for the defendant's arrest. Accordingly, the motion to suppress the defendant's statement or any identification as the fruit of an unlawful arrest is denied.

With respect to the Huntley portion, the People have the burden of proving beyond a reasonable doubt that the statements made by the defendant were voluntary. It is manifest that a [*3]defendant who is in custody may not be interrogated by law enforcement without being advised of his constitutional rights (Miranda v. Arizona, 384 US 436 [1966]). "However, both the elements of police custody' and police interrogation' must be present before law enforcement officials constitutionally are obligated to provide the procedural safeguards imposed upon them by Miranda" (People v. Huffman, 41 NY2d 29, 33 [1976]). The test of whether a person is in custody is not whether he would have been restrained if he attempted to leave the scene (People v. Rodney P., 21 NY2d 1, 10 [1967]), but rather whether a reasonable person, innocent of any wrongdoing, would have believed that he was free to leave (People v. Yukl, 25 NY2d 585, 589 [1969]). The determination of custody neither depends on the subjective intent of the law enforcement officer-interrogator (Rodney P., 21 NY2d at 8-9), nor on the subjective beliefs of the defendant (Yukl, 25 NY2d at 589). Here, the defendant, who was not handcuffed or otherwise physically deprived of his freedom, was not in custody at the time the statement was made.Moreover, while defendant's statement was made in response to the officer's question as to why the defendant climbed the antenna and whether the defendant wanted to hurt himself, the question that immediately preceded defendant's statement was investigatory in nature (see Huffman, 41 NY2d at 34 [single question asked of defendant by officer was designed to clarify the nature of the situation and thus did not fall within the ambit of Miranda]; see also People v . Gore, 117 AD3d 845, 846 [2nd Dept 2014] [initial questioning by police at hospital after DWI-related car accident were investigatory in nature]). As such, Miranda warnings were not required. Accordingly, the defendant's motion to suppress the statement on the grounds of involuntariness is denied.

Before addressing the Wade portion of the hearing, the court will address the timeliness of the identification notice served and filed by the People on January 6, 2016.

On August 26, 2015, the defendant was arraigned on a misdemeanor complaint which listed Juan Morales as the informant who allegedly observed the defendant climb a television antenna enclosed within a barbed wire fence on August 25, 2015 at 2:35 PM at 500 19th Street. At his initial arraignment, the People filed and served written notice pursuant to Criminal Procedure Law (CPL) section 710.30(1)(b) of a point-out identification of the defendant made by Mr. Morales.

On October 26, 2015, the People filed and served a superseding information (SSI) which replaced the name of Juan Morales with Peter Goyco. That SSI alleged that informant Peter Goyco observed the defendant climb a television antenna enclosed within a barbed wire fence on August 25, 2015 at 2:35 PM at 500 19th Street. No CPL section 710.30(1)(b) notice accompanied that superseding information.

On January 6, 2016, the People served and filed a superseding information which alleged an additional fact, specifically the height of the structure that the defendant allegedly climbed. The People also served notice pursuant to CPL section 710.30(1)(b) of a point-out identification of the defendant made by Peter Goyco and re-served notice of a point-out identification of the defendant made by Juan Morales. Notably, the defendant did not raise any issue regarding the timeliness or sufficiency of the People's 710.30(1)(b) notice regarding a prior identification of the [*4]defendant by Peter Goyco, the court however raised the issue of timeliness with the parties at a bench conference at the hearing and invited both parties to address the issue in their closing arguments at the hearing. At the hearing, the defense elicited testimony from Officer White regarding Mr. Goyco's identification of the defendant. In their closing argument, the defense did not address the timeliness of the additional identification notice and did not move for preclusion, but rather moved for suppression. At the conclusion of the hearing, the court invited both parties to submit case law or brief the issue of the timeliness of the notice regarding Mr. Goyco's identification by submitting an email to the court's court attorney with a carbon copy to opposing counsel by 4 pm on January 6, 2016.

On January 6, 2016 at 3:31 pm, the court received via email the People's written submission which was copied to the defense. On January 6, 2016 at 4:10 pm, the court received via email the defendant's written submission which was copied to the People. In their written submission, the People submit that because the defendant was arraigned on a superseding information on January 6, 2016, any notices filed within fifteen (15) days of that arraignment are timely. In his written submission, the defendant moves to strike any and all testimony elicited by the defense counsel from Officer White as well as defense counsel's request to suppress the identification made by Peter Goyco, argues that the identification notice was untimely and then concludes "the identification made by Mr. Goyco of Mr. Etkin shall be suppressed" (see Email and 1 page attachment of Defense Counsel received on 1/6/16 at 4:10 pm). The email submissions of the parties have been made a part of the court file and were considered by the court in its decision, an abridged version of which it rendered orally on the record on January 7, 2016, at approximately 10:30 am.^[FN1] The court further advised the parties that its full written decision setting forth the court's findings of fact and conclusions of law would be mailed and faxed to the parties later that day.

CPL section 710.30(2) requires that the People serve identification notice upon the defendant within fifteen (15) days of arraignment and before trial. There are only two exceptions to this requirement: "the fifteen (15) day time provision may be waived for good cause and the notice may be excused if the defendant has in fact moved for suppression" (People v. Lopez, 84 NY2d 425, 428 [1994]). Where, as in the instant matter, an SSI has been filed, courts have held that arraignment on a superseding information which replaces a defective instrument by adding new facts or which charges new offenses re-triggers the People's opportunity to serve statement [*5]or identification notice under CPL section 710.30 (People v. Lopez, 159 Misc 2d 264, 268 [Crim Ct, NY County 1993]; People v. Iavarone, 12 Misc 3d 1158[A], *3 [Crim Ct, NY County 2006]; see also People v. Littlejohn, 184 AD2d 790, 791 [2nd Dept 1992] [court rejected defense argument that notice filed after defendant's arraignment on second indictment was untimely reasoning that following arraignment on a superseding instrument defense may file new pre-trial motions]; People v. Paimas, 139 Misc 2d 262, 264 [Sup Ct, Kings County 1988] [15-day period for notices begins to run from date of defendant's arraignment on indictment which replaced criminal court complaint]). In People v. Lopez, the People filed and served an SSI to replace the original accusatory instrument which was defective because it failed to set forth essential elements of an offense charged. Together with the SSI, the People for the first time served notice pursuant to CPL section 710.30(1)(a) of a statement made by the defendant. The court found that because the SSI added new facts and different charges and replaced a defective instrument, the People's fifteen (15) day period to file notices under CPL section 710.30 was re-triggered.

Of course, where the People file a pretextual superseding information in an effort to circumvent the provisions of CPL section 710.30, the serving of statement or identification notice will not be permitted (see, e.g., People v. Iavarone, 12 Misc 3d 1158[A]; People v. Porter, 33 Misc 3d 791 [Geneva City Ct 2011]). For example, in People v. Iavarone, the court did not allow the People to serve CPL section 710.30 notice upon the filing of an SSI where the SSI "add[ed] nothing to the original complaint by way of fact or charges [and the two documents were] virtually identical except that the original was signed by the complainant ... and the superseding information was signed by a detective" (Iavarone, 12 Misc 3d at *4). Similarly, in People v. Porter, the court found that the CPL section 710.30(1)(b) notice served by the People together with a new accusatory instrument was untimely where the new instrument did not charge a different offense, nor allege different facts and as such, did not qualify as an SSI (Porter, 33 Misc 3d at 793).

In the instant case, the People filed an SSI to correct a defective instrument. Both the original complaint and the first superseding complaint failed to allege that the television antenna that the defendant was allegedly climbing was over fifty (50) feet in height, a required element of the crime of Climbing, Jumping or Suspending Oneself from Structures Prohibited (see AC § 10-167[a]). By failing to include this necessary element of the charged offense, both the original and the first superseding information were facially insufficient (see People v. Dumas, 68 NY2d 729, 730 [1986] ["The factual part of a misdemeanor complaint must allege facts of an evidentiary character demonstrating reasonable cause to believe the defendant committed the crime charged"]). The facts of the instant case are akin to those of Lopez, 159 Misc 2d 264. The People filed an SSI alleging an additional fact which addressed the facial insufficiency of the two prior accusatory instruments. The filing of the SSI triggered a new fifteen (15) day clock during which the People could file statement or identification notice under CPL section 710.30(1). Accordingly, the court finds that the CPL section 710.30(1)(b) notice served by the People on January 6, 2016 together with the SSI was timely.

Nevertheless, assuming that the People's additional notice was untimely, it is significant that when the People served the additional CPL section 710.30(1)(b) notice the defendant did not challenge the timeliness or sufficiency of the notice. Contrary to defendant's position, the facts [*6]here are not analogous to those in People v. Bernier, 141 AD2d 750 (2nd Dept 1988), aff'd 73 NY2d 1006 [1989]. In Bernier, the defense, during jury selection, learned that there had been a show up identification of the defendant. The defendant moved to preclude admission of the identification on the grounds that he had not been given notice pursuant to CPL section 710.30(1)(b). The trial court denied the motion to preclude and conducted a Wade hearing. After the hearing, the trial court granted defendant's motion to preclude the identification on the grounds that the notice was untimely and that the identification procedure was unduly suggestive, but then allowed the People, over defense objection, to re-open the hearing to establish an independent source for the in-court identification testimony and ultimately allowed the admission of an in-court identification based on an independent source. The Second Department found unpersuasive the People's claim that the defendant had waived his right to preclusion of the identification by participating in the hearing and reversed the trial court. Similarly the Court of Appeals, in affirming the Second Department, found the waiver argument meritless. The Court reasoned "the waiver exception cannot become operative in a case such as this when the defendant clearly moved initially to preclude and lost" (Bernier, 73 NY2d at 1008).

Unlike in Bernier, the defendant here did not initially move to preclude the identification made by Mr. Goyco or otherwise challenge the notice of said identification. In fact, it was the court, not the defendant, who raised a concern over the timeliness of the People's additional 710.30 notice as well as the sufficiency of it because the notice, which was amended prior to the commencement of the hearing, did not specify the time of the identification. The defendant did not move to preclude or otherwise challenge the notice in any way prior to the hearing. He fully participated in the hearing and elicited testimony from Officer White regarding the reasonableness of the police conduct in the pre-trial identification procedure made by both Mr. Morales and Mr. Goyco. Moreover, even after the court invited the parties to argue the timeliness issue at the close of the hearing, the defendant did not address it and instead moved to suppress, not preclude, the identification. By doing so, the defendant waived any deficiency in the notice (see CPL § 710.30[3]; see also People v. Kirkland, 89 NY2d 903, 905 [1996] [where "defendant ... moved to suppress the identification testimony and received a full hearing on the fairness of the identification procedure, any alleged deficiency in the notice provided by the People was irrelevant"]; People v. Lazzaro, 62 AD3d 1035, 1036 [2nd Dept 2009] [despite inadequate notice, statements found admissible where they were identified at a hearing addressing their voluntariness and defendant moved to suppress them]; People v. Henderson, 74 AD3d 1567, 1569 [3rd Dept 2010] ["While defendant did not receive the required notice of his oral statements pursuant to CPL 710.30(1), they were disclosed at the Huntley hearing in which he fully participated, thereby waiving any deficiency in the notice"]).

The court will now turn to its conclusions of law regarding the Wade portion of the hearing. At a Wade hearing, the People have the initial burden of establishing that the pre-trial identification procedure was not constitutionally impermissible and the defendant has the ultimate burden of proving that the pre-trial identification procedure was unduly suggestive (People v. Jackson, 98 NY2d 555, 559 [2002]). In the instant case, Officer White arrived on the scene and spoke with a group of firefighters who were standing with the defendant. The [*7]firefighters advised Officer White that the defendant was the person who they saw climb down the antenna. They then directed the officer to Juan Morales and Peter Goyco, the two individuals that made the 911 call, who were standing together on the sidewalk about 10 to 15 feet away from the firefighters and the defendant. When Officer White asked Mr. Morales and Mr. Goyco what happened, they pointed out the defendant and stated that they saw the defendant climb the antenna and that they watched him climb all the way down and took pictures of him climbing down.

An identification procedure is not arranged by the police when the identification "result[s] from mere happenstance, such as where a witness is present in police headquarters for some purpose other than to effectuate an identification, and by chance views and identifies a suspect who is being processed in another room" (People v. Dixon, 85 NY2d 218, 223 [1995]). The record herein lacks any indication that either Mr. Morales or Mr. Goyco remained at the scene at the behest of law enforcement in order to make an identification. Accordingly, the court finds that the identification procedure was not police arranged.

The court also finds that the identification procedure here was not unduly suggestive. Although it is clear that Mr. Morales and Mr. Goyco pointed out the defendant as the individual that climbed the antenna while standing near each other, the point-out by both individuals was "prompt [and a part] of an unbroken chain of fast-paced events" (People v. Wilburn, 40 AD3d 508, 509 [1st Dept 2007]). In People v. Wilburn, the police transported two eyewitnesses to the defendant's location for a show-up. The First Department reasoned that "while the better practice, when feasible, is not to conduct a show-up before multiple witnesses, the procedure here was tolerable in the interest of prompt identification' " (id.; see also People v. Love, 57 NY2d 1023, 1025 [1982] [show-up before a group of witnesses was tolerable in the interest of prompt identification "particularly so ... in view of the proximity of the apprehension of the defendant in time and space to the scene of the crime"]). In the instant case, Officer White arrived in response to a radio run of an individual climbing a tower. At the time of his arrival, firefighters were still at the scene with the defendant and the eyewitnesses were still there as well. Within one to two minutes of speaking to the firefighters and the defendant, the Officer spoke with the eyewitnesses who both indicated they saw an individual climb up and down the antenna and then pointed out the defendant as that individual. The court finds "no reason to believe that one witness influenced the other's identification" (Wilburn, 40 AD3d at 509). Accordingly, the defendant's motion to suppress the identification is denied.

This constitutes the decision and order of the court.