Chief-Leader
June 10, 2013

 

Appeals Court Threatens to Curtail Jail Time in Vehicle Assault of Sgt.

Rules He Lacked Grounds to Stop Motorist

By MARK TOOR

Sgt. John Pagnotta ordered his driver to pull up near a gray car stopped along 122nd St. in Jamaica, Queens in January 2007 so he could question the occupant. The driver actually pulled up to a black SUV parked in front of the gray car, but Mr. Pagnotta decided to talk to that motorist anyway.

After a few questions, he opened the door of the SUV and, standing between the open door and the door jamb, asked the motorist to get out of the car. The man hit the gas. Mr. Pagnotta was dragged 20 feet down the street before he was thrown onto Sutphin Blvd. in the path of oncoming traffic. He broke his pelvis, backbone and several ribs.

An Interrupted Sentence?

In 2009, the motorist, Walter Hurdle of Valley Stream, L.I., who was then 53, was convicted of several counts of assault, including assault on a police officer, and sentenced to 17 to 20 years in prison.

But on May 29, a panel of the State Supreme Court Appellate Division dismissed Mr. Hurdle’s conviction for assaulting a police officer. The judges said that Mr. Pagnotta had no legal grounds for stopping Mr. Hurdle’s SUV.

Leaders of police unions called the decision “nonsensical” and “total lunacy.” But the court was not deterred.

“Sergeant Pagnotta’s testimony was clear that at no time...was the defendant observed to be engaged in any criminal activity, or in any activity that would have aroused reasonable suspicion,” the judges wrote in their opinion. “In fact, not only was the evidence insufficient to establish that the police had an objective, credible reason for approaching the defendant in the first place, but, also, Sgt. Pagnotta’s testimony indicated that the initial approach was a mistake” because he had asked his driver to target another car.

If that ruling and the panel’s overturning of a related conviction stand, Mr. Hurdle’s sentence will be drastically reduced—a prospect that left police union leaders outraged.

To sustain a conviction of assault on a police officer, “the People must establish that the injured police officer was engaged in a lawful duty at the time of the assault,” according to the opinion. The stop was unlawful, and so Mr. Hurdle’s behavior when Mr. Pagnotta asked him to exit the car did not provide justification for the charge, they wrote.

Queens DA to Appeal

The office of Queens District Attorney Richard A. Brown criticized the decision and said it would take the case to the Court of Appeals. “With due respect to the court, it is one thing to disagree with the officer’s decision to make the stop; it is another to say that the officer was not performing a lawful duty at the time of the stop and, therefore, the assault on him was not an assault on a police officer,” Mr. Brown’s office said in a statement.

Edward D. Mullins, president of the Sergeants Benevolent Association, said he believed the decision was “total lunacy, to be honest with you.

“I get the law and I get the way it’s supposed to work,” he said, “but these judges have a different perception from someone who works in that precinct on a regular basis. The judges are looking at it as a matter of law.” Meanwhile, he said, Sergeant Pagnotta, who has lost mobility in one leg, “became a victim of a job he was supposed to be doing.”

He noted that reasonable suspicion can be the result of several factors that, by themselves, may not be suspicious. He offered this scenario: “I’m watching a guy on the corner but I’m hesitant to do something. Somebody walks past and the guy takes out a gun and shoots him.”

‘Society Should Jump In’

“Somewhere along the line, society needs to jump in on the side of law enforcement,” he said.

Patrolmen’s Benevolent Association President Patrick J. Lynch said, “This ruling is nonsensical and dangerous and the PBA vigorously supports DA Brown’s challenge of it.”

“To suggest that someone who is clearly aware that he is being questioned by an on-duty police officer and who assaults that officer with his own vehicle is not guilty of assault on a police officer is insane,” Mr. Lynch continued. “It is no different from the individual pulling out a gun and shooting the officer.

“The circumstances surrounding the questioning of that person are irrelevant. There may have been no crime before the questioning, but there certainly was an assault committed against an officer that resulted in very serious injury that ended his career.”

The appeals panel also agreed that the first-degree-assault conviction should be overturned. The judges said the evidence did not show that Mr. Hurdle’s conduct rose to the level of depraved indifference to human life, as the law requires.

Much Shorter Sentence?

In vacating the convictions for assault on an officer and first-degree assault, the appellate judges dismissed the sentences levied for them. Terms given for lesser assault counts remain intact. It was not clear last week how Mr. Hurdle’s sentence would be adjusted.

For its ruling that the stop was unjustified, the court relied heavily on a 1976 Court of Appeals decision in the case of People v. DeBour. The appeal was brought in state court, not Federal court, so the U.S. Supreme Court decision relied on by plaintiffs bringing Federal lawsuits against the department’s stop-and-frisk program does not apply.

In that case, Terry v. Ohio, the Supreme Court ruled in 1968 that police may briefly detain and question someone if they have a reasonable suspicion, which they can articulate, that he or she has just, is about to or is in the process of committing a crime. If officers have a reasonable suspicion that the subject is carrying a weapon, they may do a pat-down search of the outer garments.

A Four-Phase Process

People v. DeBour sets four levels of street encounters involving police and passersby and the permissible police response to each:

• Level 1: Objective Credible Reason. A police officer can articulate a reason that demonstrates he is approaching an individual in good faith. The officer can ask non-threatening questions about the person’s name, address, destination and what he or she might be carrying. At this level, officers are not allowed to accuse people of crimes or imply they are guilty of anything.

• Level 2: Common-Law Right of Inquiry. The officer has reason—beyond a mere hunch or suspicion—to believe the person is involved in criminal activity. In this case, the officer can ask specific, extended and accusatory questions. The officer can’t chase the person if he or she flees, or use force to detain him.

• Level 3: Stop and (if there is a reason) Frisk. The officer has reasonable suspicion that someone is involved in a crime based on something he or she has observed or based on a tip. In this case, the officer can detain the person, with handcuffs if necessary, and can pursue the person if he attempts to leave.

• Level 4: Probable Cause. The officer has probable cause to believe the person has committed a crime. In this case, the officer can make an arrest. Probable cause is a higher standard than reasonable suspicion.

Other Reversals

The vagueness of the first three levels leaves plenty of room for argument. For instance, the Court of Appeals ruled last December that nervousness on the part of the occupants of a car was not enough to justify a search of the car, or even an inquiry about whether anyone in the car has a weapon.

Last July, the Appellate Division ruled that officers in The Bronx were justified in stopping a 14-year-old but not in frisking him, although they found a gun in his backpack. The judges said the fact that the backpack drooped was not enough to justify the search.

In another ruling a few weeks earlier, the majority of the judges on another appellate panel found that an officer’s search of a young man’s coat, which also found a weapon, was unjustified. The officer said he had seen the young man place a black object in his jacket pocket. When the officer questioned him, the youth said he had just placed his wallet in the back pocket of his pants.