Police Department City of New York v. Police Officer Derek Miller

POLICE DEPARTMENT

September 19, 2005

MEMORANDUM FOR: POLICE COMMISSIONER

Re: Police Officer Derek Miller Tax Registry No. 43 Precinct Disciplinary Case No. 80602/05

The above-named member of the Department appeared before me on July 5, 2005

charged with the following:

1. Said Police Officer Derek Miller, assigned to the Bronx Court Section, while off duty, on or about September 10, 2004, at approximately 2230 hours, in the confines of the 49 Precinct, Bronx County, did wrongfully operate a motor vehicle while intoxicated.

P.G. 203-10 Page 1, Paragraph 5 - PROHIBITIED CONDUCT — OPERATE A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS

2. Said Police Officer Derek Miller, assigned to the Bronx Court Section, while off duty, on or about September 10, 2004, at approximately 2230 hours, in the confines of the 49 Precinct, Bronx County, did wrongfully operate a motor vehicle while his ability was impaired by an intoxicant.

P.G. 203-10, Page 1, Paragraph 5 — PROHIBITED CONDUCT — OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL

3. Said Police Officer Derek Miller, assigned to the Bronx Court Section, while off duty, on or about September 11, 2004, in the confines of the 49 Precinct, Bronx County, did wrongfully consume an intoxicant to the extent that said officer was unfit for duty.

P.G. 203-04, Page 1, Paragraph 1 — FITNESS FOR DUTY — GENERAL REGULATIONS

COURTESY • PROFESSIONALISM • RESPECT Website: http://nyc.govinypd

POLICE OFFICER DEREK MILLER 2

The Department was represented by Antony Anisman, Esq., Department

Advocate's Office, and the Respondent was represented by Eric Sanders, Esq.

The Respondent, through his counsel, entered a plea of Not Guilty to the subject

charges.

DECISION

The Respondent is found Not Guilty of all charges.

EVIDENCE

The Department's Case

The Department called Captain Ariana Donovan, Sergeant Alberto Martinez and

Sergeant Joseph Rinaldi as its witnesses.

Captain Ariana Donovan, a 21-year member of the Department, is currently

assigned to the Internal Affairs Bureau Command Center. Donovan testified that prior to

September 10, 2004, she neither had any interactions with the Respondent nor knew of

him. On September 10, 2004 at approximately 11:00 p.m., she began her tour as a Duty

Captain. At about midnight, Donovan responded to a call at 3194 Bronxwood Avenue in

the 47 Precinct. Upon arriving at the location,"Donovan met with the patrol supervisor of

the precinct, Sergeant Martinez. Donovan recalled that Martinez informed her he had

responded to a landlord/tenant dispute involving a member of service. Martinez

informed Donovan that there was an allegation that the Respondent, who was the tenant,

may have been unfit for duty due to alcohol consumption. After speaking to Martinez,


Donovan interviewed the tenant residing adjacent to the Respondent, Efrain Mercado; the

Respondent; and the landlord, Elliot Parisi.

Donovan went to the Respondent's apartment, which was right at the top of the

stairs. The door to the apartment was closed so she knocked. 'When the Respondent

asked who it was, she identified herself, at which point he opened the door. According to

Donovan, the Respondent was dressed, but his clothing was "disarrayed:" his shirt was

disheveled and the top button of his pants was unbuttoned. Donovan described the

Respondent as standing erect and she stated that she "didn't see him lose any gait."

In her conversation with the Respondent, Donovan explained to him her purpose

for being there. She stated that she questioned him about where he had gone that night;

what he did when he returned home; his dispute with Parisi; and the allegation that he

was unfit for duty. She recalled that the Respondent said that he went to a City Island

restaurant to have dinner. He also told her that he had been having ongoing issues with

Parisi, but she could not remember what those issues were.

Donovan testified that the Respondent denied having anything to drink and could

not recall what time he returned home from the restaurant. However, during their five

minute conversation, Donovan observed that the Respondent's "eyes were very glassy,

his speech was somewhat slurred" and he smelled of alcohol. Donovan estimated that

she stood within two feet of the Respondent during their conversation. She described the

smell on the Respondent's breath as "a heavy sweetness of alcohol" and added, "I would

compare it to something of a sugar type of liquor as opposed to a vodka type of liquor

that is a grain smell that appears medicated. It appeared that he was drinking something

of a sugar nature or something with a high content of maybe a colored syrup in it." She


noted that this smell would be consistent with a mixed drink.

Donovan described the Respondent's apartment as small, dark and sparsely

decorated. She said there was lighting, but she was not sure. Donovan stated that she did

not see a desk or any type of furniture nor did she see a library, books or stationary. By

the time Donovan had interviewed the Respondent, his Department Identification Card,

firearm and shield had already been confiscated by Martinez. After interviewing the

Respondent, Donovan concluded that he was unfit for duty based on her conversation

with the Respondent and the information given to her by Martinez. Donovan told the

Respondent that she was going to take him to the station house because she believed he

was unfit for duty. He was then placed in Martinez's patrol car and taken to the station

house. Donovan acknowledged that in her 21-year career with the Department this

incident was the first time that she had personally found an officer unfit for duty.

While the Respondent was en route to the station house, Donovan had a two or

three minute conversation with Parisi, who told her that his dispute with the Respondent

was not a big issue. He opined, however, that the Respondent was drinking more as a

form of relief since the death of his brother. Donovan admittedly did not ascertain when

the Respondent's brother had died.

On cross-examination, Donovan testified that Mercado told her that the

Respondent had blocked the driveway with his car but moved it when asked. Mercado

also told her that he believed the Respondent may have been intoxicated during their

interaction. She added that this information had been passed to Martinez, who

subsequently relayed it to her.

Donovan acknowledged that she knew there was a landlord/tenant dispute


between Parisi and the Respondent, but she did not think that Parisi, a former member of

service, would use the police to unlawfully evict the Respondent. She stated, "There

would be some courtesy." Nonetheless, she did not make any inquiries regarding the

matter. She explained that the Respondent had an opportunity to inform her, but he did

not.

Donovan testified that the Respondent could not recall what he did when he

returned home from City Island. She admitted, however, that it was possible that he

could have been asleep. Donovan also admitted that she could not remember if the

Respondent told her that he had two drinks. In concluding that the Respondent was unfit

for duty, Donovan cited her experience as a bartender while attending nursing school.

She explained that if someone had a drink at 4:15 p.m. and another one at 5:15 p.m., the

smell of alcohol on his breath at midnight would depend on whether he washed out his

mouth or drank something else. She further explained that if a person groomed himself

well by gargling and brushing his teeth, one might not smell the alcohol. She added,

however, that if that person had a cup of coffee before going to bed and the coffee had no

effect, you might be able to smell the alcohol in the caffeine. Conversely, drinking

several glasses of water might also "deteriorate" the smell. In addition, Donovan

explained that combining certain liquids in conjunction with alcohol could enhance the

smell. She acknowledged that Martinez did not tell her that he smelled alcohol on the

Respondent's breath.

For Donovan, unfit for duty is when an officer "may not be at a level of such high

intoxication which would immobilize him but would cause him maybe not to work a

hundred percent to his proper functions had he not ingested alcohol." She added, "There


are degrees of that." Donovan denied that it would be unusual for an officer who has

been determined to be unit for duty to retrieve a loaded firearm and turn it over to another

member of service. Donovan could not, however, make any determination on the manner

in which the Respondent turned over his firearm. Nonetheless, Donovan could not say if

she would have allowed the Respondent to go into a back bedroom and retrieve a loaded

gun to hand over to her once she determined he was unfit for duty. She admitted that she

did not know why Martinez permitted the Respondent to retrieve and turn over his gun

instead of doing it himself.

On redirect examination, Donovan testified that she specifically asked the

Respondent if he had any drinks and he said, "No." She asserted there was no ambiguity

in her question, nor was there any ambiguity in his answer.

On recross-examination, Donovan acknowledged that she did not speak to anyone

at the Seashore Restaurant, which the Respondent had attended earlier that evening.

Sergeant Alberto Martinez, a 14-year member of the Department, is assigned to

the 47 Precinct. On September 10, 2004, he was working a tour of 1450 x 2147 hours as

the patrol supervisor. At around 11:00 p.m., he received a message to call the station

house desk. When he called, he was told to respond to a landlord/tenant dispute at 3194

Bronxwood Avenue involving a retired member of service and the Respondent. Upon

arriving at the location, he was greeted by Parisi, who informed him that he was the

landlord and owner of the building as well as a retired member of service. Parisi also told

Martinez that one of his tenants was an active member of service with whom he had been

having a dispute. In addition, Parisi told him that the Respondent was intoxicated and


had not been paying his rent.

After speaking with Parisi, Martinez spoke to Mercado, who told him that he had

a run-in with the Respondent earlier that evening. Martinez testified that Mercado also

told him that the Respondent was intoxicated. Martinez then interviewed the

Respondent, whom he had never met before that day. Martinez recalled that when he

went to the Respondent's apartment there was a dog present. He asked the Respondent to

put the dog away so they could talk, but the Respondent contended that the dog was okay

and would not bother him; the Respondent complied after Martinez insisted.

When Martinez asked the Respondent about his problems with Parisi, the

Respondent replied that it did not concern him. Martinez then asked the Respondent to

tell him what happened that day and the Respondent again replied that it did not concern

him. During this conversation, Martinez stood outside of the door to the apartment while

the Respondent was in the doorway with the door halfway opened between them.

Martinez described the Respondent as "disheveled." "He seemed disheveled, his clothes

were disheveled, his zipper was open, his pants were laying down like showing his

underwear, his shirttail was through the zipper opening. He also had bloodshot eyes, his

eyes were also glassy and he slurred some of his words when he talked to me," recalled

Martinez.

Martinez testified that when he asked to see the Respondent's identification card,

the Respondent showed him the card, but held it a short distance away from him.

Martinez consequently reached out and asked the Respondent if he could see it, but the

Respondent waved no with the hand holding the identification card and then returned it to

his wallet. At that point, Martinez left the apartment building and called for Donovan.


Martinez testified that he had determined that the Respondent was unfit for duty before

he spoke to Donovan. He based his determination on the Respondent's intoxicated

appearance; his combative and arrogant demeanor; and his refusal to answer Martinez's

questions. In addition, the Respondent was not forthcoming with information.

Martinez informed Donovan that he received the call as a landlord/tenant dispute

involving a former and current member of service. He told her that he had interviewed

all parties concerned, including the Respondent, who seemed intoxicated and unfit for

duty. As a result, Donovan responded to the scene and conducted her own investigation.

Before she arrived, however, Martinez returned to the Respondent's apartment and

formally ordered him to turn over his identification card, shield and any firearms. After

the Respondent complied, Martinez ordered him not to leave the area and informed him

that the Duty Captain was on her way. Martinez recalled that Donovan arrived at the

location around midnight.

On cross-examination, Martinez testified that he had been called only once to

determine fitness for duty in the three years that he has been a Sergeant. In that case, the

police officer already had his identification, shield and firearms out on a counter in the

kitchen and asked for the Duty Captain himself In. this case, however, Martinez admitted

that he was not sure if the Respondent was intoxicated. Nevertheless, Martinez testified

that he felt safe enough to allow the Respondent to retrieve his loaded handgun and hand

it to him.

Recalling that it was 11:30 p.m. when he spoke with the Respondent, Martinez

acknowledged that it was possible for a person's clothes to be disarrayed when they are at

home. Martinez, however, did not ask the Respondent if he was sleeping, or if he had a

. POLICE OFFICER DEREK MILLER 9

medical condition. Martinez admittedly did not consider any other possibilities for the

Respondent's appearance besides intoxication. Martinez described the Respondent as

combative because he refused to answer any questions and did not initially hand him his

identification card when asked.

Martinez acknowledged that the landlord/tenant dispute between the Respondent

and Parisi was a civil matter. He explained that his duty in that situation is to tell the

parties involved to go to civil court. He added that his duties and responsibilities at the

scene of a landlord/tenant dispute also include hearing what the problem is; listening to

both sides; and attempting to assist them in any way. Martinez stated that the

Respondent, however, did not tell him what the dispute was about, nor did he explain that

this incident was about a blocked driveway.

Martinez acknowledged that he did not smell alcohol on the Respondent's breath

despite standing about two and a half feet away from him. He admitted that the

Respondent was compliant when he handed over his identification card, shield and

firearm.

Martinez recalled that Parisi told him that the Respondent was a good tenant for a

while, but his attitude changed when he had a death in his family. According to

Martinez, Parisi also stated that the Respondent appeared to be intoxicated more

frequently; stopped paying rent; and argued whenever he approached him.

Martinez acknowledged that as a supervisor he is required to complete a

Supervisor's Fitness for Duty Report, yet he admittedly did not complete the report until

two hours after the incident, when he was away from the scene; however, he denied

completing the report in consultation with anyone else working on the case.


When questioned by the Court, Martinez stated that his initial conversation with

the Respondent lasted somewhere between five and ten minutes.

On redirect examination, Martinez stated that he was familiar with Patrol Guide

Section 203-04 regarding fitness for duty. His understanding of the section is that a

police officer is designated unfit for duty if cannot perform his duties.

[Department Exhibit lA and 1B are the tape and transcript, respectively, of Efrain

Mercado's Official Department Interview. The interview was conducted by Sergeants

Rinaldi and Kelly, both of whom are assigned to the Bronx Investigations Unit. Mercado

stated that on the night in question he arrived home in his car sometime between 8:00

p.m.and 9:00 p.m. and found the Respondent's car blocking the entrance to the driveway

of the building where he lived. Mercado then went upstairs, knocked on the

Respondent's apartment door and asked him to move his vehicle, which he did. Mercado

added that Parisi had told him that the Respondent was not allowed to park in the

driveway anymore because they were having problems. Mercado therefore informed

Parisi when the Respondent subsequently pulled his truck into the driveway.

Mercado said that Parisi initially raised the possibility that the Respondent was

under the influence of alcohol. In addition, when Donovan interviewed Mercado that

night and asked him if he thought the Respondent was intoxicated, he said, "It's possible,

you know, based on the few seconds that I spoke with him, it's possible, but I don't know

that to be a fact. I wasn't one hundred percent sure." Although Mercado opined that the

Respondent seemed like he had been drinking, he acknowledged that he could have been

wrong insofar as he did not know the Respondent very well and they rarely saw each


other. Mercado based his opinion on the fact that the Respondent stared at him when

Mercado asked him to move his car, and on the way the Respondent made a particular

comment, which Mercado could not really remember. Mercado believed that Parisi

asked him if the Respondent was drunk after he told Parisi about the Respondent.

Mercado answered that he was not certain, but it was possible based on the way the

Respondent looked and acted.

Mercado acknowledged that the Respondent did not give him any problems: he

came right down and moved his car. Mercado also acknowledged that he did not smell

alcohol on the Respondent.]

Rinaldi, of the Bronx Investigations Unit, was assigned to investigate the

allegations against the Respondent. During his investigation, Rinaldi learned that the

Respondent's brother died on September 11, 2001; however, Rinaldi admitted that he did

not independently confirm that information.

When questioned by the Court, Rinaldi stated that he did not know who provided

that information.

On cross-examination, Rinaldi admitted that he never asked the Respondent when

his brother passed away. Upon further questioning by the Court, Rinaldi said that he

could not recall if Donovan or Martinez gave him that information or if they were aware

of it at the time they responded to the scene of the incident.

The Respondent's Case

The Respondent called Elliot Parisi as a witness and testified in his own behalf.


Elliot Parisi is a retired detective from this Department. He is also the owner of

3194 Bronxwood Avenue, an apartment building, in the Bronx, New York. Parisi has

owned the building, where the Respondent is a tenant, for approximately four years. The

Respondent has been living in the building month to month since approximately 2002.

On the night of September 10, 2004, Parisi called the police after Mercado called and

informed him that the Respondent was blocking the driveway and he could not get in.

Before calling the police, Parisi told Mercado to speak to the Respondent; Mercado

replied that he tried to speak to the Respondent, who seemed intoxicated at the time.

Instead of going to go to the building to confront the Respondent, Parisi decided to call

the police and let them handle it. Parisi testified that Mercado did not tell him that the

Respondent had moved his car. However, when he arrived at the location, the car had

already been moved.

Parisi testified that he called the 47 Precinct to make the complaint and when he

did not get a response, he called 911 to ensure that the call would go through. He could

not recall with whom he spoke at the 47 Precinct, nor could he remember what he told the

911 operator.' He vaguely recalled that he complained about the driveway being blocked

by the Respondent, who would not move his car because he was intoxicated. Mercado

told Parisi that he believed the Respondent was intoxicated because he was slurring his

speech; leaning against the wall; and not responding to him.

Upon arriving at the location, Parisi did not speak to Mercado but to a sergeant

(Martinez). He told Martinez that the driveway had been blocked but that the car had

since been moved. According to Parisi, the police remained because the Respondent was

' Parisi was handed a copy of the SPRINT Report of the 911 call he made to help refresh his recollection, but he was unable to remember any of it.


allegedly intoxicated. Parisi acknowledged that he did not observe the Respondent nor

did he ask Mercado if the Respondent was intoxicated or not.

Parisi testified that he did not know who moved the car out of the driveway;

Mercado actually witnessed the car being moved. Parisi, however, believed the

Respondent moved his own vehicle. Parisi explained that the driveway leads to the

parking lot, for which the tenants in the building pay month to month, but the Respondent

had only paid for one month five months earlier and should not have been parking there.

Parisi could not remember the time frame of his call to the Police Department nor

what he said when he made the calls, but he recalled asking for a Duty Captain to respond

to the location because an intoxicated police officer was involved and he did not want to

get physically involved with someone who was armed with a weapon. Parisi admitted,

however, that he did not know if the Respondent was armed at the time and that neither

Mercado, nor Martinez, nor Donovan informed him that the Respondent was armed.

Although Parisi stated that "as a police officer you are usually armed with your weapon,"

he could not recall if he told the 911 operator that the Respondent might be armed.

Parisi testified that although Mercado told him that the Respondent appeared to be

intoxicated, they did not discuss whether Mercado was one hundred percent certain.

Parisi acknowledged that he did not know if the Respondent had a medical condition or if

he suffered from sleep deprivation. He also acknowledged that he did not know if

anyone made any such inquiry during the investigation.

Parisi stated that when he arrived, the Respondent's car was not parked in its

usual spot: it was in one of the two lanes in the driveway, but it was not pulled in all the

way. Parisi testified that he did not personally know Martinez, Donovan or the desk


officer.

The Respondent, a ten-year member of the Department, is assigned to the 43

Precinct. On September 10, 2004, he worked a tour of 0705 x 1540 hours. The

Respondent recounted that after he got off duty, he went to the Seashore Restaurant on

City Island where he met two retired detectives whom he had met at this location on other

occasions. While at the restaurant, the Respondent ordered dinner and two drinks, which

he drank with his meal at approximately 4:15 p.m. and 5:15 p.m. At approximately 7:30

p.m., the Respondent left the restaurant and drove himself home, where he arrived home

around 8:00 p.m. Upon arriving home, the Respondent found the gate to the driveway

chained and secured with a different lock. As a result, he parked his vehicle in front of

the gate and went upstairs to his apartment. Prior to that evening, the Respondent had

access to the driveway and a key to the gate.

The Respondent acknowledged that other people used the driveway and that it

was common for the driveway to be blocked by others as often as four times a week He

explained that someone who wants access to the blocked driveway will either wait until

the person whose vehicle is blocking it comes down or knock on that person's door and

ask that the vehicle be moved.

The Respondent recalled that after returning to his apartment he worked on a

school paper on his computer. At the time, he was studying business for his bachelor's

degree at Manhattan College. The Respondent testified that he did nothing else besides

schoolwork when he returned home. He asserted that he did not have anything else to eat

or drink, nor did he take any medication.


According to the Respondent, Mercado knocked on his door sometime around

8:00 p.m. or 9:00 p.m. and asked him to move his vehicle. Dressed in a tee shirt and

jeans, the Respondent stopped to put on his sneakers before going downstairs to move his

vehicle. When the Respondent reached the driveway, Mercado opened the gate and the

Respondent pulled his vehicle into his usual spot. At that time, Mercado informed the

Respondent that Parisi did not want him parking in the driveway. Mercado added that he

received a letter from Parisi to that effect; the Respondent told Mercado that he never

received a letter from Parisi revoking his parking privileges. The Respondent testified

that he was neither combative nor difficult during his conversation with Mercado.

Afterward, the Respondent returned to his apartment and his schoolwork.

One or two hours later, Martinez knocked on the Respondent's door. The

Respondent had his dog with him when he opened the door. In response to Martinez'

request that he put the dog away, the Respondent told Martinez that the dog was friendly

and would not harm him; nevertheless, he closed the door and complied, then opened it

and spoke with Martinez, who asked if there was a problem with the car being parked in

the driveway. The Respondent replied that it was a civil matter and he should not be

there. Martinez then asked to see the Respondent's identification card without explaining

why. Whereupon the Respondent removed his wallet from his front pants pocket, took

out his identification card, and showed it to Martinez. The Respondent estimated that

Martinez was standing at least a foot and a half away from him outside of the doorway to

the apartment. After showing Martinez his identification card, the Respondent put it back

in his pocket because he did not see any reason why Martinez needed to look at it any

further insofar as his identity had already been established.


According to the Respondent, Martinez became a little annoyed at this point and

asked to see it again, but the Respondent told him "no." Martinez then informed him that

he would have to notify the Duty Captain. The Respondent remarked, "Then [you] have

to notify the Duty Captain" and returned to his desk. The Respondent testified that

Martinez did not accuse him of being unfit for duty or impaired, nor did Martinez

mention anything about alcohol or being intoxicated.

When Martinez asked for the Respondent's identification card a second time, he

also asked for his shield and firearm. The Respondent stated that he went unescorted to

the rear bedroom to retrieve his firearm, which was fully loaded and holstered, and

handed it over to Martinez, who was standing outside of the apartment door in the

hallway. After which, the Respondent returned to his desk and continued to do his

schoolwork.

The Respondent recalled that about an hour or so later, Donovan arrived at his

apartment after speaking to Mercado. He described their conversation as "polite and

courteous." The Respondent explained to Donovan that the situation between him and

Parisi was a landlord/tenant dispute. He also told her about finding the gate locked upon

coming home. The Respondent, however, could not exactly remember the conversation

he had with Donovan, who indicated that he needed to go to the 47 Precinct. She asked

him to get dressed and he complied. The Respondent stated that he was not troublesome

or combative, nor did he engage in any behavior that could be construed as arrogant. In

addition, he was neither handcuffed nor restrained.

According to the Respondent, Donovan stood less than a foot away when she

interviewed him in his apartment, but she never told him that she smelled alcohol on his


breath. She also did not tell him that she believed he was unfit for duty.

The Respondent testified that Donovan did not explain to him why she was taking

him to the 47th Precinct, nor did she explain under what authority she was ordering him to

go. The Respondent remarked that he was shocked that a sergeant and a Duty Captain

would respond to a landlord/tenant dispute.

When the Respondent arrived at the precinct, he was placed in a room where he

stayed for a couple of hours before a delegate arrived, after which he was taken into

another room and told to report back to a different precinct on Monday. The Respondent

stated that no one from the Department indicated that he would be arrested for driving

while intoxicated or impaired.

The Respondent reiterated that he did not have any drinks while he was inside his

apartment and that he had only two drinks at the restaurant. He acknowledged that

Martinez interviewed him closer in time to when he left the restaurant.

On cross-examination, the Respondent stated that he did not remember what he

drank at the restaurant, but he recalled it was a mixed drink and that each of the other

detectives with whom he was having dinner had one drink apiece. The Respondent was

certain that he had the second drink at 5:15 p.m. because he was wearing a watch that he

had been looking at periodically throughout the night. He added that he knew the time of

his second drink because he is a cop and he "remember[s] these things." He admitted,

however, that he could not remember what he was studying that night.

The Respondent denied that his dispute with Parisi was over non-payment of rent.

He explained that when he told Martinez and Donovan that his dispute with Parisi was a

civil matter, he was merely advising them of the situation. However, he stated


hypothetically that if he had responded to the scene of a landlord/tenant dispute and was

told by the landlord that it was a civil matter, he would have walked away.

On redirect examination, the Respondent testified that he was taught at the Police

Academy that during a landlord/tenant dispute his duties are to keep the peace and refer

the parties to Civil Court. He denied that he was disputing with Parisi on the night in

question because Parisi was not present at the location. He reiterated that he moved his

car when Mercado asked him to do so. To his knowledge, no investigator from the

Department called the Seashore Restaurant to establish how many drinks he had that

night. He also stated that no one ever asked him: if he had a medical condition that

could have accounted for his appearance that day; what he was doing in the apartment

that night; if he was feeling depressed about the upcoming anniversary of his brother's

death; if his appearance could be attributed to his brother's death; or if he was sleepy,

tired or suffering from sleep deprivation.

The Respondent asserted that no one saw him drinking or impaired and that he did

not drive his vehicle while he was intoxicated or impaired. He stated that he left the

restaurant five hours before Donovan responded to the location, yet she was the only

person who smelled alcohol on his breath.

On recross-examination, the Respondent agreed that it is his responsibility when

responding to a landlord/tenant dispute to initially determine whether or not there is a

need to keep the peace. "Landlord/tenant disputes tend to be a little bit more hostile,

there is a little bit more emotion. In order to calm the emotion down you have to sit

down and talk to both sides," he explained. The Respondent contended that when a

police officer, like himself, is involved "there is certainly no need to conduct an


investigation or to look at a situation because the parties are hostile." He added that

because he was not hostile, there was even less reason to investigate. The Respondent

agreed, however, that Martinez was reasonable in the performance of his duties.

The Respondent clarified that his brother died in 1998 and that he was not feeling

sad about it on the night in question.

FINDINGS AND ANALYSIS

The Respondent is charged with wrongfully operating a motor vehicle while

intoxicated; wrongfully operating a motor vehicle while his ability was impaired by an

intoxicant; and wrongfully consuming an intoxicant to the extent that he was unfit for

duty.

I find the Respondent Not Guilty. In most, if not all, driving while intoxicated or

impaired cases, the Respondent is either observed operating the vehicle or immediately

thereafter. Here, there was no witness who observed the Respondent in a car, let alone

driving while intoxicated or impaired, raising a significant issue of fact for such charges.2

Instead, the Department predicated its case on a theory that if the Respondent was unfit

for duty at the time he was visited by Sergeant Martinez and Captain Donovan, as they

attested, then a fortiori he was intoxicated or impaired when he admittedly operated his

vehicle earlier in the evening. However, I was not convinced that the Respondent was

unfit for duty, the conclusions of Donovan and Martinez notwithstanding, nor intoxicated

2 The crime of driving while intoxicated requires a showing that the defendant is incapable of employing the physical and mental abilities which she/he is expected to possess in order to operate a vehicle as a responsible and prudent driver, while the lesser offense of driving while impaired requires only a showing that the defendant's ability to operate a vehicle was impaired to some extent. People v. McNamara, 269 A.D.2d 544 (2d Dep't 2000).


or impaired by extrapolation.

Martinez and Donovan separately interviewed the Respondent relatively close in

time and in close proximity to the Respondent, yet Donovan stated that she smelled

alcohol on the Respondent, while Martinez did not. Indeed, Martinez conceded that he

was not sure if the Respondent was intoxicated, which may explain why he permitted the

Respondent to retrieve his loaded firearm and hand it over to him. I also discounted

Martinez' conclusion that the Respondent was unfit because Martinez lacked experience

making that assessment: only once before had he been called upon to make such a

determination. In addition, the indicia of unfitness cited by Martinez were

unsubstantiated and superficial. For example, Martinez apparently based his conclusion

in part on the Respondent's "disheveled" appearance, e.g., the zipper of his pants was

open, his pants were lying low on his waist revealing his underwear, and his shirttail was

visible through the zipper opening. Martinez added that the Respondent's eyes were

bloodshot and glassy and he slurred some of his words. However, Martinez conceded

that given the late hour, it would not be unreasonable for a person at home to appear in

that manner. Further, Martinez admittedly did not ask the Respondent if he had been

sleeping or had a medical condition, nor did he consider those possibilities. Moreover,

Martinez's conclusion may have been influenced by his conversation with the

Respondent's landlord, Parisi, and a tenant, Mercado, both of whom told Martinez that

the Respondent was intoxicated, then equivocated and backed away from their specious

opinions when formally interviewed thereafter. For instance, although Mercado opined

that the Respondent seemed like he had been drinking, the bases for his opinion were

vague and unsubstantial: the Respondent stared at Mercado when the latter asked him to


move his car: and the way the Respondent made a particular comment, which Mercado

could not remember. As for Parisi, he acknowledged that he did not observe the

Respondent nor did he ask Mercado if the Respondent was intoxicated or not. Parisi also

testified that although Mercado told him that the Respondent appeared to be intoxicated,

they did not discuss whether Mercado was one hundred percent certain. Under the

circumstances, it is possible that Parisi's call to the police was motivated by the

underlining landlord/tenant problems he was having with the Respondent, and not on the

Respondent's purported intoxicated condition. Martinez's acknowledgment that the

Respondent was compliant when he handed over his identification card, shield, and

firearm further undermined his determination that the Respondent was unfit. Conversely,

Martinez's description of the Respondent's demeanor as combative and arrogant -- a

contributing factor in his determination that the Respondent wasAinfit (which was not

mentioned by Donovan) -- is not rcescarily indicative of unfitness- I 1121cldat the

Respondent manifested this demeanor at trial, at which time he was presumably fit for

duty. I believe the Respondent's arrogance and combativeness could have been

attributed not to alcohol but to his contention that his landlord/tenant zoblems with

Parisi were civil in nature and therefore did not concern Martinez.

Although Donovan, who interviewed the Respondent around midnight, was

adamant that she smelled alcohol on the Respondent's breath, her determination that he

was unfit was diminished by her acknowledgment that the Respondent moved his vehicle

when asked by Mercado; her concession that the Respondent could have been asleep

prior to her arrival at his apartment (which would have accounted for his disheveled

appearance); her explanation that combining certain liquids with alcohol could enhance

PROVED 0 6 2op

(.0/ YMO W. KELLY

OLICE C'MMISSIO


the smell of alcohol; and her failure to contact the Seashore Restaurant, which the

Respondent had attended earlier that evening, to ascertain his alcohol consumption.

Significantly, she described the Respondent as standing erect and recalled that she "didn't

see him lose any gait," i.e., he was able to stand and walk normally. The fact that the

Respondent admittedly had two drinks several hours before he spoke to Donovan would

account for why she smelled an alcoholic beverage, but would still not necessarily render

him unfit for duty. Rather, the Respondent's responses to Martinez and Donovan

suggested the opposite insofar as it appeared that he was fully oriented as to time and

place and could fully account for his whereabouts that evening; indeed there was no

testimony that he lacked coordination, orientation or coherence.

Accordingly, because I am doubtful that the Respondent was unfit for duty at the

time he was interviewed by responding members of the service, I find there is insufficient

evidence in the record to prove that he was incapable of employing the physical and

mental abilities which he is expected to have in order to operate a vehicle as a reasonable

and prudent driver. See Disciplinary Case Nos. 69576/95 and 74109/99.

Respectfully submitted,

ichael D. Sarner Assistant eputy Commissioner - Trials

SPECIFICATIONS DISPOSITION RECOMMENDED PENALTY

PLEA 0 TRIAL al 1. Said Police Officer Derek Miller, assigned to the Bronx Court Section, while off duty, on or about September 10, 2004, at approximately 2230 hours, in the confines of the 49 Precinct, Bronx County, did wrongfully operate a motor vehicle while intoxicated.

2. Said Police Officer Derek Miller, assigned to the Bronx Court Section, while off duty, on or about September 10, 2004, at approximately 2230 hours, in the confines of the 49 Precinct, Bronx County, did wrongfully operate a motor vehicle while his ability was impaired by an intoxicant.

3. Said Police Officer Derek Miller, assigned to the Bronx Court Section, while off duty, on or about September 11, 2004, in the confines of the 49 Precinct, Bronx County, did wrongfully consume an intoxicant to the extent that said officer was unfit for duty.

It is recommended that the Respondent be found Not Guilty.

NOT GUILTY

NOT GUILTY

NOT GUILTY

Reviewed by Deputy Commissioner of Trials

DEPUTY COMMISSIONER

DISPOSITION OF CHARGES PD 468-142A (7-93)-h2

CASE NO.

80602/05 BOOK & PAGE NO.

PERSONNEL ORDER NO.

SPECIFICATIONS AGAINST RANK/SURNAME,

Police Officer Mil er, FIRST M.I.

Derek

COMMAND

43 Precinct SHIELD NO. TAX REGISTR SOCIAL SECU

DATE APPOINTED

June 30, 1995 RANK/NAME OF COMPLAINANT

Captain Paul Rayward COMMAND

43 Precinct DATE OUORGES ), 2005 ary DATE TRIAL Jul

CQMM N ECt y 205

DATE TRIAL July 5

CONCLUDED , 2005

TRIAL COMMISSIONER

Honorable Michael D. Sarner

Police C missioner's Approval:

Approved

❑ Disapproved

El Other Action (Describe)

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Police Department City of New York v. Police Officer Derek Miller

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