The defendant is charged with two counts of Attempted Forcible Touching (Penal Law § 110/130.52[1], Attempted Sex Abuse in the Second Degree (Penal Law § 110/130.60[2]), Attempted Endangering the Welfare of a Child (Penal Law § 110/260.10 [1]),^[FN1] two counts of Sex Abuse in the Third Degree (Penal Law § 130.55), and two counts of Harassment in the Second Degree (Penal Law § 240.26 [1]). A combined Dunaway/Wade/Huntley hearing was held before this Court on May 19, 2017. The People called two witnesses: Police Officers Leslie Baptiste and Theodore Papadopoulos. Based upon the credible testimony, the additional submissions of the parties, and the applicable law, the defendant's motion to suppress the showup identifications and the statement is granted. In doing so, the Court makes the following findings of fact and conclusions of law:

Police Officer Leslie Baptiste has been with the New York City Police Department for 3 years and is currently assigned to PSA-1, which covers the confines of Red Hook, Gowanus, Wyckoff, and Warren Houses (H. 10, 11). On May 14, 2016, at approximately 3:48 PM, Officer Baptiste and his partner Officer Demetrius responded to a radio run of a "39" at 572 Warren Street. The officer explained that a "39" is the code for a catchall crime that does not include an assault, robbery, burglary, or larceny (H. 12). Officer Baptiste and his partner arrived at 572 Warren Street at approximately 4:00 PM, where he spoke with Ms. Marisol Miranda in the presence of her husband and her daughters, 17-year-old T.G., and 13-year-old B.G. (H. 13)^[FN2] . Ms. Miranda informed Officer Baptiste that a person unknown to her touched her two daughters while they were at a corner store, located at 109 Third Avenue (H. 13, 14, 33). Officer Baptiste testified that Ms. Miranda did not see the incident and that "she didn't tell us what she saw, she told us what her daughters had told her happened" (H. 36, 37). Ms. Miranda described the assailant as, "an older Hispanic male, gray hair, beard, green pants, black shirt" (H. 15). T.G. "agreed" with the information that Ms. Miranda told Officer Baptiste (H. 14, 29). B.G. did not discuss the incident but she nodded in agreement with her mother (H. 15, 24, 30). Officer Baptiste could not recall what Miranda's husband said during that time but indicated that the husband "clearly knew what happened" (H.30, 32). After speaking with Ms. Miranda, Officer Baptiste and his partner escorted Ms. Miranda and her husband to the location of the incident, which is about a block and a half from Ms. Miranda's residence (H. 15, 31, 33).

Officer Baptiste testified that Ms. Miranda accompanied him inside the corner store, while her husband remained outside with his partner (H. 31, 33). Officer Baptiste spoke with the store employee, who stated that he did not see the incident, but during the time in question, he heard a commotion and recognized Ms. Miranda as being in the store (H. 25, 26, 27). The store employee informed Officer Baptiste that he observed a Hispanic male, with gray hair a beard and green pants, who frequents the store and lives in the area, exiting the store during that time (H. 16, 17, 33). Officer Baptiste testified that at that point, he "had an idea of who he thought the individual was" (H. 18). Officer Baptiste "looked him up—I had his name and I got a picture of him," and showed Ms. Miranda a single photo of the defendant from his department issued phone. Officer Baptiste asked Ms. Miranda if the photo on his phone was the individual she saw in the store, and Ms. Miranda replied, "yes" (H. 18, 20). Officer Baptiste did not show Ms. Miranda any other photo, other than the defendant's (H.25). Officer Baptiste testified that he did not show the defendant's photo to T.G. or B.G. (H. 21). The officer could not remember showing the defendant's photo to Ms. Miranda's husband (H. 34). After Ms. Miranda identified the defendant from the photo, Officer Baptiste went to the defendant's residence, arriving at defendant's apartment at approximately 5:30PM (H. 21, 22). Officer Baptiste testified that he knocked on defendant's door, but no one answered (H. 21-23). Officer Baptiste testified that "we" then walked up and down the building but did not see anyone matching the description of the defendant (H. 30). Officer Baptiste left the defendant's residence and returned to Ms. [*3]Miranda's apartment, where he collected more information about the incident from Ms. Miranda and her daughters (H.23, 31). Officer Baptiste then proceeded to the station house to complete paperwork and to make notifications about the incident (H. 23, 30).

Police Officer Theodore Papadopoulos has been with the New York City Police Department for 2 and ½ years and is currently assigned to PSA-1. His duties include investigating crimes and conditions that occur within the confines of Red Hook, Warren and Wyckoff Houses (H.38, 39). On May 14, 2016, at approximately 6:45PM, Officer Papadopoulos received a radio run, which stated "perpetrator from the past, for 572 Warren Street." Officer Papadopoulos could not recall if the radio run indicated any other information about the incident (H. 40).

Officer Papadopoulos testified that when he arrived at 572 Warren Street, he observed the defendant standing in front of the building (H. 47). The defendant was detained; he was in handcuffs and was surrounded by multiple uniformed officers (H.40, 49, 52). Officer Papadopoulos could not recall the name of any of the officers who detained the defendant (H. 47). Officer Papadopoulos proceeded to speak with T.G. and B.G. father, who told Officer Papadopoulos that the individual the police detained at the location had touched his two daughters. Officer Papadopoulos testified that the father told him that he had called 911 (H. 47). Officer Papadopoulos did not know the contents of the 911 call (H. 48).

Officer Papadopoulos testified that within a few minutes of his arrival, Ms. Miranda, T.G., and B.G. appeared in front of the building. Officer Papadopoulos could not recall who called Ms. Miranda, T.G., and B.G. to the location (H. 48). He testified that "the gentlemen who had called saying the perpetrator was there must have contacted them ," but he stated that he was not sure (H. 48, 49). Officer Papadopoulos could not recall where Ms. Miranda, T.G., and B.G. came from (H. 48, 49). Officer Papadopoulos asked Ms. Miranda, T.G. and B.G .whether the defendant was the person who committed the alleged crime against them. Ms. Miranda identified the defendant as the person who touched her daughters. T.G. and B.G. then nodded and shook their heads, "yes" in response to Ms. Miranda's identification of the defendant (H.50, 51). Officer Papadopoulos could not recall if Ms. Miranda, T.G. or B.G. said anything else to him prior to the identifications of the defendant (H. 42). The defendant was standing approximately 15 feet from the witnesses when he was identified, and was the only person surrounded by police officers (H. 41, 49).

After the defendant was identified, Officer Papadopoulos spoke with the three witnesses about the incident. Ms. Miranda explained that she saw the defendant touch one of her daughters, and that the other daughter told Ms. Miranda that the defendant touched her as well (H. 42, 61). Officer Papadopoulos could not recall which one of her daughters Ms. Miranda said she saw the defendant touched (H. 51, 59). Officer Papadopoulos testified that Ms. Miranda told him that the defendant touched T.G. on her buttocks and B.G. on her vagina (H. 43). Officer Papadopoulos could not recall whether T.G. or B.G. said anything to him about the incident or if they told him, what parts of their bodies the defendant touched (H. 51, 55, 56). Officer Papadopoulos was confused about the ages of the girls. He could not recall which girl was younger and could not distinguish his conversations between the two girls (H. 48, 51). Officer Papadopoulos testified that throughout the entire conversation with the three witnesses, Ms. Miranda spoke, while T.G. [*4]and B.G. nodded their head in concurrences with their mother (H. 43, 44, 55). Officer Papadopoulos could not recall if Ms. Miranda told him the date and time of the alleged the incident (H. 43). Officer Papadopoulos did not know the exact address where incident occurred, but indicated that it was on Third Avenue in Brooklyn (H. 46).

After conferring with his supervisor, Officer Papadopoulos placed the defendant under arrest. Officer Papadopoulos proceeded to transport the defendant to the 78th precinct. Officer Papadopoulos testified that during the ride to the precinct, the defendant asked what he had done. Officer Papadopoulos could not recall his exact response to the defendant's question. The officer testified that, "I told him he knew what he had done, that he had touched those two girls inappropriately" and "explained what was being alleged" (H. 45, 60). Officer Papadopoulos could not recall if he explained to the defendant, exactly what parts of T.G. or B.G. body the defendant allegedly touched (H. 60). The defendant told Officer Papadopoulos that he "didn't do it, that he had a bad leg and that he fell and touched them by accident" (H. 45). The defendant had not been given Miranda warnings (H. 46).

The People have the initial burden at a suppression hearing of providing evidence of the legality of police conduct in the first instance (People v Baldwin, 25 NY2d 66, 69 [1969]; People v Malinsky, 15 NY2d 86, 91 [1965]; People v Berrios, 28 NY2d 361, 367 [1971]). The People are not required to produce each and every police officer who came into contact with a defendant or who has any knowledge of the criminal incident and surrounding circumstances (see People v Witherspoon, 66 NY2d 973, 974 [1985]; People v Rosado, 222 AD2d 617, 618 [2d Dept. 1995]). However, the People must establish through firsthand knowledge or the "fellow officer" rule, the circumstances of a defendant's detention (see e.g. People v Gonzalez, 80 NY2d 883 [1992]; People v Ramirez—Portoreal, 88 NY2d 99 [1996]; People v Powell, 101 AD3d 756 [2d Dept 2012]).

Here, the People failed to present any evidence to establish that the defendant was lawfully stopped and detained at 572 Warren Street. Officer Papadopoulos did not have firsthand knowledge of how the defendant came to be detained. The defendant was in handcuffs and surrounded by multiple police officers when Officer Papadopoulos arrived at the location. The People did not call any of the police officers who initially detained the defendant to testify regarding the circumstances by which the defendant came to be in their company. The People did not elicit any testimony from Officer Papadopoulos, through the "fellow officer" rule concerning the information that the multiple police officers possessed that led them to detain the defendant. The People did not even establish the identities of the officers who detained the defendant at that location (see People v Moses, 32 AD3d 866 [2d Dept 2006] [prosecution failed to establish the legality of defendant's seizure where there was no testimony establishing how the defendant was lawfully stopped and detained]; People v Powell, 101 AD3d 756 [detention of the defendant was unlawful where the People did not present any testimony from the arresting officers as to what information they possessed or how they received it before they detained the defendant and his codefendant]; People v Skinner, 220 AD2d 350 [1st Dept 1995] [the People failed to meet their burden of establishing the legality of the arrest where the hearing testimony did not establish the identity of the officer who initially detained defendant, or whether that officer actually received any information from another officer who may have possessed probable cause]).

Moreover, the People did not present any evidence that would permit the Court to infer that the defendant was detained based on radio transmissions (People v Moses, 32 AD3d 866; compare People v Castillo, 91 AD3d 883 [2d Dept 2012]; People v Robinson, 95 AD3d 906 [2d Dept 2012]. Officer Papadopoulos responded to a radio run indicating, "perpetrator from the past, for 572 Warren Street." There was no evidence that the radio transmission described the defendant or the alleged incident, as Officer Papadopoulos could not recall anything else about the radio run.

Although Officer Papadopoulos testified that T.G. and B.G. father called 911, the officer admitted that he never heard the contents of that call. Furthermore, there was no evidence that the detaining officers were aware of the 911 call, that the 911 call described the defendant or included any information about the alleged incident, or that the 911 call led the detaining officers to apprehend the defendant at that location (see e.g. People v Richards, 32 AD3d 545 [2d Dept 2006]; People v Kennedy, 282 AD2d 759 [2d Dept 2001]; People v Beruvais, 231 AD2d 733 [2d Dept 1998]; People v Parris, 83 NY2d 342 [1994]).

Nor was there any evidence about how the complainants' father recognized the defendant as the individual who touched his daughters (People v Beruvais, 231 AD2d 733 [in light of the officer's failure to inquire into how informant providing hearsay information knew that the defendant was involved in crime, informant's basis of knowledge was not established]. The complainants' father was not present during the alleged incident. Officer Baptiste testified that he did not remember showing the single photo of the defendant to the father, and there was no testimony that the father may have recognized the defendant from the description that Ms. Miranda gave to Officer Baptiste in his presence.

The People certainly demonstrated that Police Officer Baptiste had probable cause to arrest based on having interviewed an eyewitness. However, Police Officer Baptiste was not present at 572 Warren Street at the time that the defendant was detained. The People did not present any evidence that Police Officer Baptiste or any other officers communicated any information about the alleged incident to the officers who stopped and detained the defendant (People v Powell, 101 AD3d at 758] [although the People demonstrated that certain officers who interviewed an eyewitness had sufficient information to constitute probable cause, the People presented no evidence that those officers communicated that information to the arresting officers prior to the stop and detention of the defendant]; see People v Skinner, 220 AD2d 350]). Nor was there any testimony that the apprehending officers, whoever they were, were working "in close temporal and spatial proximity" to Police Officer Baptiste supporting the conclusion that they possessed the same information as Officer Baptiste did about the alleged incident (People v Gittens, 211 AD2d 242, 245-6 [2d Dept 1995]).

Moreover, based on the evidence presented, the Court is unable to make an independent determination that the defendant's appearance at the time of his detention matched the description of the individual who allegedly touched T.G. and B.G. (see People v Dodt, 61 NY2d 408 [1984]; see also People v King, 274 AD2d 669 [3d Dept 2000 [a suppression court must be supplied not only with the description upon which the police acted, but also with facts concerning the defendant's clothes, characteristics and description at the time of such detention]. Officer Papadopoulos did not provide any description, much less the race or clothing of the individual that he observed at 572 Warren Street. As such, the record is devoid of any evidence that the individual observed by Officer Papadopoulos was the same individual described by Ms. Miranda and the store employee to Officer Baptiste (see People v Bradshaw 76 AD3d 566 [2d [*5]Dept 2012]).

This Court has no knowledge of the circumstances that led the defendant to be at 527 Warren Street on May 14, 2016 at approximately 6:45 PM. The complete lack of any evidence regarding the defendant's initial seizure requires a finding that the People failed to carry their burden to demonstrate the legality of the police conduct in the first instance. Accordingly, the showup identifications and the statement flowing directly from the defendant's detention must be suppressed (see People v Dodt, 61 NY2d 408; People v Powell, 101 AD3d 756; People v Moses, 32 AD3d 866).

Even assuming that the People had met their burden of going forward as to the defendant's detention, the Court finds that the showup identifications of the defendant were unduly suggestive.

"While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, the burden is on the People first to produce evidence validating the admission of such evidence" (People v Ortiz, 90 NY2d 533, 537 [1997]; see People v Chipp, 75 NY2d 327 [1990]). The People must demonstrate that the showup was reasonable under the circumstances and not unduly suggestive (Ortiz, 90 NY2d at 538). A showup identification will be inadmissible when "'there was no effort to make the least provision for a reliable identification and the combined result of the procedures employed' establish that the showup was unduly suggestive" (People v Riley, 70 NY2d 523, 529 [1987] quoting People v Adams, 53 NY2d 241, 249 [1981]).

Showup identifications are, by their very nature, suggestive and are strongly disfavored (Riley, 70 NY2d at 529; Ortiz at 537). Showups are permissible where exigent circumstances require immediate identification (People v Rivera, 22 NY2d 453 [1968]; People v Love, 57 NY2d 1023 [1982]). Showup identifications not based upon exigent circumstances are sanctioned only when the identification represents circumstances in an "unbroken chain of events—crime, escape, pursuit, apprehension, and identifications" (People v Duuvon, 77 NY2d, 541, 545 [1991]; see People v Hawkins, 188 AD2d 616, 617 [2d Dept 1992]). Prompt showup identifications which are conducted in close geographic and temporal proximity to the crime are also permissible (People v Ortiz, 90 NY2d 533).

Here, there was no evidence of exigent circumstances, an "unbroken chain of events" or testimony to establish that the showup identifications were conducted in close temporal proximity to the crime. Exigent circumstances have included situations where an eyewitness is in the hospital suffering from critical wounds and may not recover (People v Rivera, 22 NY2d 453),where the police were looking for armed robbers and wanted to move as quickly as possible to find out whether they had apprehended the correct person (People v Howard, 22 NY3d 388 [2013]), and where the victim is at or near the scene and required prompt medical treatment (People v Smith, 286 AD2d 636 [1st Dept 2001]). No such facts existed here, which would have required the immediate identification of the defendant at 572 Warren Street.

Nor was there any evidence of an "unbroken chain of events." After responding to the radio run, Police Baptiste escorted Ms. Miranda and her husband to the location of the alleged incident. Officer Baptiste then went to the defendant's residence to try and locate the defendant. Officer Baptiste then proceeded back to Ms. Miranda's apartment, where he collected more information. At approximately 6:45 PM, nearly three hours later, Police Officer Papadopoulos arrived at 572 Warren Street, where Ms. Miranda, T.G. and B.G. identified the defendant shortly [*6]thereafter. These facts do not establish "crime, escape, pursuit, apprehension and identifications" (compare People v Duuvon, 77 NY2d 541 [1991] [The showup identification was made upon defendant's return to the robbery scene approximately two minutes after his arrest, three to four minutes after the commission of the crime, and around the corner from the arrest scene]; People v Brnja, 50 NY2d 366 [1980] [the defendant was apprehended less than a mile from the robbery scene and was identified by the victim fifteen minutes after the crime was committed]; People v Brisco, 99 NY2d 596 [2003] [the showup took place at the scene of the crime, within an hour of the commission of the crime, and in the context of a continuous, ongoing investigation]).

Although the testimony established that the incident occurred one block and a half from where the defendant was identified, the record is silent as to the length of time between the crime itself and the showup identifications. The People did not elicit this information from Officer Baptiste, and Officer Papadopoulos could not recall if Ms. Miranda told him the time of the incident. In any event, the times between Officer Baptiste's initial contact with the witnesses at approximately 4:00 PM and the showup identifications at approximately 6:45PM were not close in time to justify the showup identifications (see People v Johnson, 81 NY2d 828, 831 [1993] showup conducted nearly two and a half hours after the crime was impermissible; compare People v Mack 135 AD3d 962 [2d Dept 2016] [ showup conducted within approximately twenty five minutes of the crime was permissible]; People v McKinnon, 78 AD3d 864 [2d Dept 2010] [show up conduced sixteen minutes after reported robbery was employed was within "temporally proximate" to the commission of the crime]).

Moreover, the simultaneous viewing of the defendant by three witnesses rendered the showup even more suggestive. Nearly three hours had passed between the times when Officer Baptiste responded to the radio run at 572 Warren Street and when Officer Papadopoulos arrived back at that location. This was not a situation in which the police were unsure of the assailant's identity that would justify the simultaneous viewing of the defendant (see People v Howard, 22 NY3d 388 [2013]). Police Officer Baptiste testified that he knew the identity of the defendant, where the defendant lived, and even went as far as to go to the defendant's residence in an effort to locate the defendant. In addition, the witnesses were not in front of the building when Officer Papadopoulos arrived at the location, and had to be called down to identify the defendant. Under these circumstances, the police had sufficient time and opportunity to arrange for the witnesses to view the defendant individually (compare People v Vicentry 138 AD3d 428 [1st Dept 2016] [officer transporting two witnesses unexpectedly came upon a scene where private security guards were holding defendant and there was no real opportunity for the officer to arrange for each witness to individually view defendant]). Therefore, the simultaneous viewing of the defendant cannot be deemed "tolerable in the interest of prompt identification" (People v Love 57 NY2d 1023, 1024 [1982]; see People v McClean, 143 AD3d 538 [1st Dept 2016]).

Nor can it be said that T.G. and B.G. were not influenced by the identification of the defendant by their mother (Love, 57 NY2d at 1024]; McClean, 143 AD3d at 539). Ms. Miranda identified the defendant first and then T.G. and B.G. nodded in response to their mother's identification of the defendant. The evidence established that throughout their entire contact with the police, Ms. Miranda gave the accounts of the incident on behalf of her daughters. T.G. and B.G. hardly spoke and simply "agreed" and "nodded."

Furthermore, Officer Papadopoulos could not give a detailed account of the entire showup identifications (see People v Mack, 135 AD3d 962 [2d Dept 2016] [the People met their burden of establishing the lack of any undue suggestiveness through the testimony of the [*7]detective who transported the complainant to the showup and who provided a detailed account of the physical circumstances of the procedure]; People v Erwin, 118 AD3d 910 [2d Dept 2014 [same]). Here, Officer Papadopoulos could not recall who called the witnesses to the scene, where the witnesses came from or if they said anything to him prior to the identifications of the defendant. Based on all the evidence presented, the People failed to show the reasonableness of the showup identifications and lack of undue suggestiveness.

Additionally, the single photo identification procedure tainted the subsequent showup identifications of the defendant. The showing of a single photo of a defendant to a witness is unduly suggestive (People v Rodriquez, 79 NY2d 445, 453 [1992]). The identification of a defendant by the use of a single photo must be merely confirmatory, based on an eyewitness' prior familiarity with the defendant, in order to overcome the suggestiveness of the procedure employed (see People v Jenkins, 230 AD2d 806 [2d Dept 1996] [complainant knew defendant from having encountered him in the neighborhood two or three times a week for the period of a year]). Here, Officer Baptiste testified that the individual was unknown to Ms. Miranda. Moreover, the police had information about the defendant including a name and address sufficient to obtain a police photo and conduct a photo array. Under these circumstances, the showing of the single photo to Ms. Miranda was not warranted. Accordingly, the subsequent showup identifications of the defendant must be suppressed.

It is manifest that a 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]). The safeguards required by Miranda are not triggered unless a suspect is subjected to "custodial interrogation" (People v Paulman, 5 NY3d 122, 129 [2005]). Statements made in response to express questioning, or police words and actions that the police should know are reasonably likely to elicit an incriminating response are inadmissible in the absence of Miranda warnings (People v Tavares-Nunez, 87 AD3d 1171, 1172 [2d Dept 2011]). On the other hand, a spontaneous statement, blurted out by defendant without "any inducement, provocation, encouragement, or acquiescence, no matter how subtly employed" is admissible (People v Maerling, 46 NY2d 289, 303-4 [1978]; People v Rivers, 56 NY2d 476, 479 [1982]). Truly spontaneous statements are volunteered statements that are "self-generated" and made without any external prompting (Tavares-Nunez, 87 AD3d at 1171]; see People v Dunn, 195 AD2d 240, 244 [2d Dept 1994]). "That the defendant may have initiated the exchange is not necessarily controlling" (People v. Rivers, 56 NY2d 476, 479 [1982]).

Here, although the defendant was not subjected to express questioning, the Court finds that the exchange between Officer Papadopoulos and the defendant was not "self-generated" or made without any external prompting.

In People v West, 237 AD2d 315 [2d Dept 1997], the defendant asked the detective why he was being arrested. When the detective replied, "I think you know," the defendant said, "You know, for the robbery with the two other guys?" After the detective answered, "Yeah," the defendant replied, "I really ... up this time," and again, the detective said, "Yeah." The Second Department held that this exchange was not the product of improper interrogation.

This case is distinguishable from West. Officer Papadopoulos did not merely answer the defendant's question about why he was being arrested (see e.g. People v Harrison, 251 AD2d 681 [2d Dept 1998]), or respond "Yeah" to the defendant's questions. Officer Papadopoulos testified that he "explained what was being alleged" to the defendant, about "touching the girls [*8]inappropriately." This exchange cannot be viewed as "terse and pointed response to the defendant's questions " (People v Coleman 142 AD2d 586, 587 [2d Dept 1988]). Moreover, Officer Papadopoulos could not recall the exact conversation between him and the defendant. Based on this testimony, the Court cannot conclude that the defendant's statements were voluntary, truly spontaneous, and not the product of an interrogation. Accordingly, the statement must be suppressed in absence of Miranda warnings.

For the reasons stated herein, the defendant's motion to suppress the showup identifications and the statement is granted.

An independent source hearing is ordered to determine whether an independent source exists to support the witnesses' in-court identification of the defendant.

This constitutes the Decision and Order of the Court.