|Claimant(s):||SHARON PERRINGTON, and SHARON PERRINGTON on behalf of JOSHUA PERRINGTON, a Minor, and SHARON PERRINGTON on behalf of BROOK ROBINSON, a Minor|
|Claimant short name:||PERRINGTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK,|
|Footnote (defendant name) :||The Court has sua sponte amended the caption to reflect the only proper defendant.|
|Judge:||S. Michael Nadel|
|Claimant's attorney:||Sharon Perrington, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By Assistant Attorney General John Hunter
|Third-party defendant's attorney:|
|Signature date:||August 18, 2009|
|See also (multicaptioned case)|
At the trial of this claim it was established that shortly after 7:00 A.M. on the morning of January 9, 2006, under the direction of Officer Fernandez, who was employed by the defendant as a parole officer, that during the course of that employment, he and several other law enforcement personnel entered the residence of Sharon Perrington, searched it, and detained her and two minors who were present, all without her consent. Upon entering, with guns drawn, they awoke and interrogated her and the two minor children, which included Ms. Perrington's daughter Brook, then age 12, who testified at this trial.
Ms. Perrington, who is the director of a senior citizens center in the Bronx, had been at the time of the incident, for 18 years, a caseworker for the New York City Administration for Children's Services. She testified that she was awakened in her bedroom by a man with a gun. He and another man with a gun directed her to the living room, where her daughter Brook and her nephew Joshua were. Ms. Perrington said that the men were verbally abusive. They showed her a picture of Kevin Wallace; she told them he was her nephew, whom she had not seen for a month or so.
Ms. Perrington testified that the men did not point the guns at her while she was in the living room, but the guns were in their hands. Ms. Perrington also testified that the men used profanity and were verbally abusive toward her and the children. She said that after approximately 30 minutes, one of the men said something like "we need to leave" because this looks like a "fairly decent family." The only identification the men provided was a torn piece of paper on which Fernandez had written "US Marshals PO Al Fernandez/Parole 88 10th Ave NY NY 10011" and two telephone numbers. According to Ms. Perrington the men wore plain clothes and did not display any badges.
On rebuttal, Ms. Perrington testifed that the intercom system in the building was not working at the time. She also said that the door could not have been ajar, since there was a "slam lock" mechanism which prevented that from happening. She acknowledged that the door may have been unlocked since two of her children had left for school before 7:00 A.M. She also testified that, in response to inquiries from the men, she was looking in her cell phone for Wallace's girlfriend's number when one of the men grabbed the phone from her. She further testified that Fernandez and his team all left the apartment at the same time she and her daughter Brook did, which was when she went to drive Brook to school.
Brook Robinson testified that she was awakened by loud banging noises. When she awoke she heard someone screaming, and a man was standing at the end of her bed pointing a gun at her head and using profanity, telling her to get up. She went into the living room where she saw two or three other men. They showed her pictures of Wallace, who she told them was her cousin and that she could not remember the last time she had seen him.
The men went into her cousin Joshua's bedroom, and she heard them screaming and again using profanity, telling him to get up. They brought him into the living room. She said that the men did not identify themselves. On cross-examination she testified that her mother came into the living room about 5 minutes after she had been there. She could not remember how long the men were there, but did recall that at her deposition she said it was about half an hour.
The defendant does not dispute that neither the entry into the apartment nor the search was consensual, but rather contends that both were necessitated by exigent circumstances,
specifically that Fernandez believed at the time that there existed a danger of possible serious physical injury to at least one of the occupants of the apartment. That belief was based upon a combination of the circumstances which brought the men to the apartment, and the circumstances attendant upon their arrival, all of which was the subject of testimony by Fernandez, who was called as a witness by the defendant.
Officer Hernandez testified that he was at the claimant's apartment on the morning of January 9, 2006 in search of Kevin Wallace, a fugitive parolee. He was part of a team, including another parole officer and several U.S. Marshals, which worked together. Wallace had two violent felony convictions and had violated the terms of his parole, as a result of which a warrant for his arrest had been issued. Fernandez was assigned the case after the warrant was issued in 2002. In early 2005 there had been notification from law enforcement officials in Virginia that Wallace had been arrested in that State (Exhibit B). It does not appear from the case file (Exhibit A) that any action was taken until the morning of this incident. According to Fernandez, Wallace had mistakenly been released by Virginia authorities, without notification to law enforcement in New York. At some point Wallace had been placed among the "100 most wanted" in New York, by the Division of Parole.
The day before this incident, Fernandez was informed by telephone by a law enforcement official in Virginia that Wallace's mother had been interviewed and told them that Wallace lived with his common-law wife Sharon Perrington at 875 Morrison Avenue. A phone number for Sharon Perrington was also given to Fernandez.
Fernandez arrived at the address he had been given at 5:40 A.M. the next day. There he met another member of his team, a U.S. Marshal. When they first arrived they did not know Ms. Perrington's apartment number, which had not been provided by Virginia authorities. It was a very large apartment building. Through a series of investigative efforts which took place that morning, they identified her apartment as 13J. At that point he called for three additional members of his team, two marshals and another parole officer.
According to Fernandez, he and the marshal went to the 13th floor and waited down the hall for the other members of his team to arrive and watched the apartment door. When two of the others informed Fernandez by radio that they had arrived downstairs, Fernandez instructed one of them to call the apartment via the building intercom. Fernandez testified that he was told that a woman had responded on the intercom. The officers downstairs did not respond, but instead came up to the 13th floor. At that point the four officers approached the door and Fernandez knocked on it. He testified that the door was ajar and started to open. He said he announced their presence, saying "Police" several times. No one responded, so he and the others entered the apartment. He testified that this occurred at approximately 7:30 AM.
Fernandez testified that once they entered the apartment the team searched the entire apartment for Kevin Wallace. Upon completion of the search, they interviewed Ms. Perrington. He said that while they were searching the apartment, their guns were drawn but that he did not point the gun at anyone's head. Fernandez also testified that they holstered their guns once the search was completed. He said that all of the men displayed their shields, and that they were dressed in plain clothes. He denied that any profanity was used. He estimated that the entire time spent in the apartment was no more than 20 minutes.
Fernandez testified that the "imminent danger" he believed existed when they entered the apartment was based not only upon Wallace's record of convictions of violent felonies, but also upon his belief that the person who had answered the intercom was not responding at the door because she was being held against her will by Wallace, who he suspected was inside the apartment.
The defendant contends that under the circumstances, Fernandez entered the apartment pursuant to the authority of Division of Parole, Policy and Procedures Manual, Manual Item 9405.08, "Search for a Releasee" (Exhibit D), in which it is stated: "Absent exigent circumstances, an Officer may not search any other premises, including those of a third party, which are not under a releasee's control without the CONSENT of the person in possession, ownership or control of the premises" [emphasis in original]. That same directive defines "Exigent Circumstances" as "[A] perceived state of events, or circumstances, based on specific articulable information which if not immediately acted upon may endanger the life of or cause serious physical injury to a person."
But while the foregoing directive appears to cover entry into premises owned and controlled by a third party, the Court finds that another directive (Division of Parole, Policy and Procedures Manual, Manual Item 9405.04, "Search and Seizure" received in evidence as Exhibit 8) more directly applies to the circumstances in which Fernandez and his team found themselves on the morning of January 9, 2006. That directive includes the following: "Absent a search warrant, an Officer may not search any other premises, including those of a third party, which are not under a releasee's control without the consent of the person in possession, ownership or control of the premises."
In any event, upon the record established at this trial, neither of these directives justified anything Fernandez and his team did once they had knocked on the door and no one responded or invited them in.
Even if the otherwise unlawful entry, detention, and search could be justified on the basis of exigent circumstances, the Court finds that none existed at the time, nor does the record support that there was any basis to believe that they did.
Based upon the evidence in the record, the first time that Fernandez enunciated any apprehension of "imminent danger" inside the apartment was three months later, in April 2006, when he was interviewed concerning the incident (part of Exhibit 7, documents of the Division of Parole pertaining to an investigation of the incident).
There is nothing in his Case Activity Report, dated January 10 (Exhibit C), which would suggest that both the entry and the search were not consensual. While his Unusual Incident Report, dated the next day (part of Exhibit 7), states the door had been left ajar, it specifically refers to the search as consensual. Neither of these reports mentions anything concerning "imminent danger" or anything like it.
Exhibit 7 was offered by the claimants, and received in evidence over the defendant's objection. Neither Exhibit C nor any of the documents contained in Exhibit 7 were provided to the claimants before trial, during pretrial discovery. The Assistant Attorney General at trial contended that the claimants had made no discovery requests. At a conference held during December 2006, however, the Assistant Attorney General agreed to ascertain whether any reports concerning the incident existed which could be provided to the claimant. By letter dated January 2, 2007 (Court Exhibit 1), the Assistant Attorney General advised Ms. Perrington that the Division of Parole had commenced an investigation, the number of which was 2006-11, and which was not yet concluded. She further advised that the investigation was privileged pursuant to Civil Rights Law section 50-a, but that upon its completion she would advise Ms. Perrington "and you can then seek from the Court an in camera review of that material." In fact, the Assistant Attorney General's letter concluded: "And, once I have information that Parole's investigation is completed, I will assist you as I can with obtaining an in camera review of those materials."
Although the defendant initially asserted that the documents pertaining to the investigation were privileged pursuant to the Civil Rights Law, it subsequently was testified to by Ms. Wagner, the Director of Labor Relations at the Division of Parole that none of those documents were part of any employee's personnel record, and as such the pertinent provisions of the Civil Rights Law do not apply. The only further objection the defendant raised to providing the documents pertaining to the investigation to the claimant at trial was with respect to the shield numbers of parole officers. Officer Fernandez testified that his shield number was not confidential. To the extent that the Court reserved decision at trial on the defendant's objection to receipt in evidence of those portions of the documents which constitute hearsay, the Court determines that the statements of Ms. Perrington and the two minor children,(2) and those of persons other than the parole officers, included in Exhibit 7, have not been received in evidence as proof of the truth of anything they said.(3)
Upon the foregoing record at trial, the Court finds the defendant liable for any injuries sustained by the claimants arising from the defendant's nonconsensual entry into and search of the apartment, and from their detention in the apartment while the officers were there.
Clearly, the Court is in no better position than Officer Fernandez was to assess the reasonableness of his alleged belief that Wallace might have been in the apartment. But upon consideration of the testimony at trial and the Exhibits received in evidence, the contention that he apprehended "imminent danger" in the apartment is unsupported by the evidence. In the first place, his testimony that one of his team had communicated via the building intercom is based upon uncorroborated hearsay and is ultimately self-serving. His testimony that the door was ajar is credibly disputed by Ms. Perrington. Thus any suspicion he now contends he had then that Wallace was there is pure speculation, unsupported by articulable, reliable information. The investigative file (Exhibit A) consists of Wallace's criminal record, documents pertaining to the time he was under parole supervision, and some documents pertaining to the issuance of a parole warrant when he failed to appear for an appointment with his parole officer. Other than information regarding his presence in Virginia a year prior to this incident, there is nothing in the file concerning contacts or investigative steps taken by the defendant during nearly four years he was a fugitive, despite the defendant's characterization of him as one of New York's "100 most wanted." Apart from that year-old information, the file does not contain documentation regarding the additional contacts with Virginia to which Officer Fernandez testified at trial. Most importantly, Fernandez's testimony at trial regarding "imminent danger" is belied by the absence of any mention of the way in which the officers gained entry to the apartment, or the reason why, from the two reports Fernandez prepared within days after the incident.
In accordance with the foregoing, the Court finds the defendant liable.
A conference is hereby scheduled for September 14, 2009 at 10:00 AM, for the purpose of ascertaining whether any discovery pertaining to the issue of damages is necessary, and to discuss the scheduling of a trial on the issue of damages.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
2. At trial, Ms. Perrington stated that her nephew, Joshua Perrington, was no longer a minor, and that he did not wish to pursue this claim, in which he is named as a claimant. On that basis the defendant moved to dismiss the claim brought by Joshua Perrington, which the Court denied. If Joshua Perrington wishes to discontinue his claim, he is free to do so. In the meantime, his failure to appear or to testify at this trial, absent anything directly from him on the record, is not a sufficient basis to dismiss his claim.
3. Upon review of the documents pertaining to the investigation (Exhibit 7), the Court notes that a serious question exists as to the nature of the procedure apparently in place at the Division of Parole for the investigation of a citizen's complaint against a parole officer concerning a nonconsensual entry into, and search of, a private residence, and the defendant's inability to substantiate any written administrative or legal authority for it. According to Ms. Wagner's otherwise unsubstantiated testimony, she and she alone, in her capacity as Director of Labor Relations at the Division of Parole, possesses the complete authority to conclude an investigation of such a complaint, including whether or not administrative action against a parole officer is warranted.
In this case, interviews of the citizens present were conducted not by her, but by employees of the Office of Professional Responsibility of the Division of Parole during the weeks following the incident. Based upon those interviews, the Office of Professional Responsibility found in early March 2006 that there had been violations of Search and Seizure Manual Item 9405.04 and Code of Conduct Article 1, rule #9, in that "employees shall be courteous and considerate in their contacts with the public," and that administrative action against the parole officer was recommended by the Director of the Office of Professional Responsibility. At that point, according to Ms. Wagner's testimony, the rest of the investigation consisted of her interview of only Fernandez, three months after the incident, at which time he denied the allegations. Faced with his denial of allegations she had not heard firsthand, she concluded further action was not warranted, and the case was closed. Her contribution to the investigation is a one-page "Summary" which consists of a recitation of Fernandez's version of the incident, as reflected in her notes of her interview of him in April 2006. The particulars of Ms. Perrington's complaint, as well as the statements of persons other than the parole officers, which provided the basis for the conclusion by the Director of the Office of Professional Responsibility that "the allegation of misconduct is founded" are not part of Ms. Wagner's summary, at the end of which she states "I do not find credible evidence to support additional action."
Wholly apart from the correctness of the conclusion she reached (in reaching its own conclusion, infra, as to the facts established at trial, the Court has not given any weight to the findings of Ms. Wagner or to those of the Office of Professional Responsibility of the Division of Parole), the foregoing procedure, if it is in fact the actual procedure in place, is at odds with any fundamental notion of responsible, meaningful and fair treatment of an allegation of this gravity. The procedure described by Ms. Wagner, and followed by the defendant in its investigation, is not one which is designed to arrive at a fair conclusion for as soon as the employee who was the subject of the investigation denied the allegations, the case was closed. The purpose of an investigation is to attempt to resolve issues of fact which arise in this manner and the procedure followed here provided no meaningful opportunity to achieve such a resolution.
When offered the opportunity to complete the record as to the actual procedure in place, and the authority for it, the Assistant Attorney General cited to statutory provisions having no bearing whatsoever on the issue, and to provisions of the Division of Parole's Employee Manual which do not in fact include any such procedure, choosing instead to rely on Ms. Wagner's self serving declaration that she and she alone had the authority to resolve the matter as she did.
While the particulars of the incident have now been fully aired at this trial, a trial is not necessarily the only proper forum for an investigation into a complaint of this nature by a citizen. Ms. Perrington's complaint warranted a prompt, full and fair investigation of her allegations that her home was entered and searched without her consent, and without a lawful warrant. That did not take place.
August 18, 2009
New York, New York
S. Michael Nadel
Judge of the Court of Claims