Thursday, September 6, 2018

People v. Garcia and Mismarked Police Reports

Police officer testifying in Court
For the record mismarked, wrongly worded, and badly timed New York police reports will not get a case dismissed or reduced. In a August 2018 DWI case of People v. Garcia, the defense attorneys filed motions to get a case dismissed based upon a lack of operation. You see the New York police report aka the 710.30 form has check boxes.

What happens if the police don't check some boxes? What happens if the police mischeck some boxes? What happens if the police misstate the times of the arrest, the color of the car, the make of the car, the model of the car, and even the streets? 

New York Police Reports are NOT Evidence

Police reports are considered hearsay under the law. There is no hearsay exception as in a civil case with a police accident report. They are in fact "out of court" statements and they do not come into evidence. They certainly do NOT come into evidence for the truth of matter asserted, In fact even with judge trials, called bench trials, the judge can't see the police report or even consider it because they act as judge and jury (fact finder).

Many people are under the mistaken notion that what the police write down is somehow sacrosanct. It is forever there and the truth or the lies of what happened. This is just not true.

Police Testimony and Lay Testimony are NOT Evidence Because they can Be Cross-examined 

We want witnesses to state what they saw and heard. Then a good cross examiner can question their vision, their viewpoint, their context, and challenge the evidence presented by them. You see testimony in the form of an eyewitness is EVIDENCE of the crime. These days some police have body cameras and their videos can come in as evidence. What the police check off on a police report or write down may help their memories in the future but not much else. 

People v Garcia, a Common  Law DWI (refusal case) 

This case was an appeal from a judgment of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), rendered August 26, 2016. In the case the prosecutor's theory of operation was the defendant behind the wheel, motor running, and keys in the ignition. In NYS operation of a car is way wider a definition than driving it. 

The defense argued the check off boxes on the supporting deposition (police report) were in error. 

The printed supporting deposition form contains numerous lines setting forth various allegations, with spaces for placing an “x” next to the appropriate statements. In this case, after the words “[t]he operation of said vehicle is established by the fact,” an “x” appeared next to the line indicating that “[y]our deponent observed said operation.” In addition, after the words “[t]he [d]efendant was stopped for the following reason,” an “x” appeared next to the line indicating “[o]ther…Sleeping Behind The Wheel.”
However, there was no “x” next to any of the following lines: “Circumstantial evidence existed consisting of…Defendant at the wheel…Keys in the ignition…Motor of vehicle running.” 

Oh if it was that easy to get a DWI case dismissed. Police officers have to testify on DWI cases.

Bottom line is this YOU will NOT be found GUILTY or NOT GUILTY based upon an error in the police report or supporting deposition. 

The police will testify to what they observed, this is likely enough evidence to have you operating a car. A better plan of attack would have been on whether or not someone was intoxicated or merely impaired. This is always a matter of degree of influence. A very strong defense could have been made out to show mental awareness and cognition.

Not My DWI Case But ,,, Bench Trial with these facts

I'm no armchair quarterback. I wasn't there, this wasn't my client, but you really have to know your judge to have a bench trial on a DWI case (no jury). Remember your client has to opt for a bench trial. This was a bench trial on a common law (no chemical test) DWI in Westchester, NY. Are juries in Westchester, NY immune to the facts, I don't know.?

To actually prove intoxication minus an accident or bad driving you have a lot to prove. Remember this case has NO true D as in driving. Most DWI cases succeed or fail based upon the driving. This case, unless the defendant was falling down and unable to function or follow directions would have a strong impairment leaning as in DWAI violation and NOT a DWI misdemeanor.



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