Not Quite Free Enough To Go

In a decision that can only be described as weirdly right, the Appellate Division, Second Department vacated the Queens County convictions of Walter Hurdle for assault 1 and assault on a police officer. It's not that Hurdle didn't do it, or that the officer, Sgt. John Pagnotta, wasn't hurt. According to the decision, he was severely hurt.

And yet, the court held that Hurdle lacked the requisite intent element, in this case depraved indifference pursuant to Penal Law § 120.10(3).

On January 18, 2007, at approximately 8:00 p.m., the defendant was sitting in his legally parked vehicle, a black SUV, when an unmarked police car pulled up to the driver’s side of the SUV, and one of the four uniformed officers in the car, Sergeant John Pagnotta, had a brief conversation with the defendant. Unsatisfied with the defendant’s answers to his questions, the sergeant directed the officer driving the police car to pull in front of the SUV and park at an angle, blocking the defendant from pulling out of his parking space. The officers then exited the police car and approached the SUV. Sergeant Pagnotta opened the door on the driver’s side of the defendant’s vehicle; standing between the door and the door jamb, he continued to question the defendant. When Sergeant Pagnotta ordered him to exit the car, the defendant shifted into drive and pressed his foot down on the gas pedal, crashing the SUV into the police car in front of it and dragging Sergeant Pagnotta, trapped between the door and the door jamb of the SUV. When the SUV pulled away from the police car, Sergeant Pagnotta was released and thrown into the middle of the street, where he was almost hit by an oncoming car. As a result of this incident, Sergeant Pagnotta sustained severe injuries.

There doesn't appear to be any magic secret behind Pagnotta's stop of Hurdle. At least from the decision, there was no reason to suspect he had, was or would be committing a crime of any type. Just a guy in his car minding his own business, and fully entitled to be left alone. Pagnotta failed to leave Hurdle alone.

There being no basis for the initial approach, or Pagnotta ordering the cruiser to block Hurdle's SUV, the court refused to conclude that Hurdle's hitting the gas, crashing into the police cruiser and dragging Pagnotta who was positioned between the car door and jamb, constituted depraved indifference. 

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, Sergeant Pagnotta’s testimony indicated that the initial approach was a mistake, since Sergeant Pagnotta had intended for the officer driving the police car to pull up to a grey car parked behind the defendant’s vehicle. Furthermore, neither the defendant’s startled demeanor nor his responses to the police inquiry provided the officers with “the quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity [was] at hand.”

If the initial approach was a mistake, then it's rather self-evident that the police lacked probable cause for the stop and seizure, and obviously what happened subsequently can't serve to justify the initial stop. But still, Hurdle, knowing that a cop car was blocking him and a cop standing within his car door, hit the gas and went.  He hit the cruiser and went. He trapped the cop in his door and went. Was this just a matter of his "startled demeanor"?

Regardless of whether the initial stop was lawful, what of "attenuation," that the time between Hurdle being stopped and his decision to hit the gas, smash into the cruiser, trap the sergeant and drive away made his subsequent actions an independent assault?  The court simply dismisses the argument.

The People’s attenuation argument is unpreserved for consideration upon appeal (see People v Hunter, 17 NY3d 725, 728; People v Nieves, 67 NY2d 125, 135-136) and, in any event, is without merit.

Trying to make sense of this decision isn't easy, given the bizarre description of the facts and what appears to be some glaring holes in the narrative. So why was Hurdle stopped? A mistake? A way to kill some time by the police? For no reason whatsoever?  Then why did Hurdle, whose SUV was boxed in, hit the gas with apparent knowledge that at the very least, he was going to hit the police car and, most likely, do some serious harm to Sgt. Pagnotta?

The outcome seems to be a quite remarkable result based upon the absence, for whatever reason, of any lawful justification for Hurdle's stop and seizure. It's almost as if the police, having violated Hurdle's constitutional right to be left alone, brought about whatever damage resulted from Hurdle's effort to escape his wrongful seizure.  As the police were not exercising any "lawful duty," they could not avail themselves of the concomitant duty not to cause harm to an officer.

But the gravamen of the decision rests on the view that Hurdle's conduct did not amount to depraved indifference:

“‘Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill [or to cause serious physical injury to another person]’” (People v McMillon, 31 AD3d 136, 139, quoting People v Suarez, 6 NY3d 202, 214). “The element of depraved indifference to human life comprises both depravity and indifference, and has meaning independent of recklessness and the gravity of the risk created”

When the reaction to unlawful police action causes what appears to be inevitable harm, it seems that the court is holding that it fails to rise to the level of "wickedness" necessary to suffice for depraved indifference. Not only is this a remarkable appreciation of the right of a citizen to not be constrained by unlawful police conduct, but a clear message to police that their failure to respect the rights of citizens strips them of the protections they would otherwise have for the performance of their lawful duty.

Lest anyone think this is too huge a vindication of Hurdle's rights, while the decision vacates his convictions for first degree assault and assault on a police officer, including the sentence of 17 to 20 years, he remains convicted of the lesser offenses of second degree assault and reckless driving and still has a seven-year sentence to serve. 

H/T Jill McMahon

 

 

 

 

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