Opinion
2003-213.
Decided March 18, 2004.
John Tunney, Special District Attorney for the Plaintiff and Raymond M. Schlather, for the Defendant.
The defendant is charged in a seven-count indictment with the crimes of Grand Larceny in the fourth degree (two counts), Grand Larceny in the third degree (two counts), Falsifying a Business Record in the first degree (two counts) and Petit Larceny. All of the charges concern money seized by and now missing from the Elmira Police Department.
The defendant has been a member of the Elmira Police Department for more than thirteen years, serving as a uniformed officer, drug investigator and as a uniformed supervisor in his current position as shift Sergeant. He is on paid suspension, pending the outcome of this criminal case and of any administrative actions. A special prosecutor was appointed to handle this prosecution.
This case was presented to two different grand juries, with the defendant testifying at both presentations. The first grand jury declined to file charges against the defendant. The second grand jury indicted the defendant as indicated above.
The matter has proceeded through the court and there has been extensive discovery conducted. The court has reviewed the minutes of both grand jury presentations and counsel have exchanged thousands of pages of documents. Both counsel have represented their clients vigorously and worked extensively on this case.
This case is a completely circumstantial evidence case. There is, so to speak, "no smoking gun" in this case. The first irregularity was discovered when officers took evidence bags of money to the bank for conversion into a check to the Drug Enforcement Administration, regarding a federal forfeiture action. When officers cut the bags open, they found the amounts in the bags were not as represented on the evidence tags. Following that discovery, the Elmira Police Department conducted an extensive investigation, in conjunction with and in cooperation with the New York State Police. An experienced State Police Investigator from out-of-the-area was assigned to the case and was assisted by other out-of-town State Police personnel. Procedures were reviewed, physical locations were examined and searched, and police personnel, representatives from the District Attorney's Office, bank personnel and defendants involved in the underlying cases were interviewed. It may fairly be said that Sgt. Miller had some connection, either directly or indirectly with each of the cases where money turned up missing. It may also fairly be said that some of the paper trails created, showing the existence and lawful seizure of this money, were created by Sgt. Miller. In some instances the only existing records which show Sgt. Miller's involvement with the money during the processing of cases, exist because Sgt. Miller made copies of the original documents and forwarded them to the District Attorney's Office for inclusion in their files. The original documents which should be located in the police department are also missing in those instances.
Sgt. Miller has maintained his innocence throughout the investigation and has consistently continued to do so before this court. There is no confession, no witnesses who saw him take any of the money, no evidence showing his possession of the funds, and no unusual spending on his part. As previously stated, this is a case completely based upon circumstantial evidence.
The defense has filed a motion, pursuant to Section 210.40 of the Criminal Procedure Law asking that the court dismiss the indictment in the interests of justice. Extensive argument was heard on the motion, in court, with the defendant arguing that he did not take the funds and that the funds are either misplaced, that the sums involved were misreported, or that someone other than the himself took the money. Part of the argument by defense counsel on the motion involved certain missing funds, concerning which the defendant was questioned by State Police, but which counsel later traced as being deposited in the City Chamberlain's Office.
In conjunction with hearing arguments on the motion to dismiss, the court researched the applicable statute and associated case law. Through that research, it came to the attention of the court that evidence of polygraph results, which are otherwise not admissible as evidence in this state [ e.g., People v. Leone, 25 NY2d 511 (1969); People v. Angelo, 88 NY2d 217 (1996)], may be considered by the court on a motion to dismiss in the interests of justice (case law discussed infra). Since the case is based upon circumstantial evidence and since the defendant has adamantly maintained his innocence, the court considered whether such a test of the defendant's truthfulness might be appropriate in this matter.
The court held a conference with the Special Prosecutor and defense counsel, presenting the possibility of polygraph testing to them. Counsel were free to agree to the procedure or to reject it. The defendant was free to put his truthfulness to this test utilizing the polygraph, or to proceed to trial. Mr. Miller readily agreed to the test. Counsel agreed to the test, consenting that if the results showed the defendant was truthful in stating that he did not take the money, such test results would be submitted to the court for consideration on the motion, without further argument or objection.
Counsel searched for an experienced polygraphist and agreed to retain the services of Michael S. Carbery, of Michael S. Carbery and Associates, Inc., in Syracuse, New York, to conduct the examination. Mr. Carbery has an extensive history with law enforcement in Onondaga County, serving as a deputy sheriff, a hostage negotiator in that department and as a member of the Onondaga County Sheriff's Department SWAT team. He was the chief polygraphist for that Sheriff's Department for sixteen years and is certified as a "scientific interviewer." During his career, he has conducted more than 15,000 polygraph examinations/scientific interviews and has qualified as an expert in both family and criminal courts. His curriculum vitae establishes his training and his extensive involvement on the boards of numerous state and national associations and journals.
Information, agreed to between counsel, was provided to Mr. Carbery in writing, so that he might have a background of the charges and underlying factual allegations. Such information was necessary to develop appropriate questions through which to test the defendant's truthfulness.
According to Mr. Carbery's report, "(t)he main issue under consideration was whether or not JOSEPH M. MILLER, JR. was telling the truth when he claimed that he had no guilty knowledge of, nor was he in any way, fabricating his version of case facts accusing him of larceny of various monies taken from suspects under arrest by the Elmira Police Department."
The examination results were as follows: "The results of JOSEPH M. MILLER, JR.'s initial polygraph examination conducted on February 14, 2004 were indefinite. His attorney was informed of the results [along with the Court and Special Prosecutor] and a re-examination was conducted on February 18, 2004.
In the polygraph recordings there were definite indications of TRUTHFULNESS when JOSEPH M. MILLER, JR. answered NO to the following pertinent test questions:
Q: Did you ever help someone steal cash from Elmira P.D. suspects? A: `No'
Q: Did you steal cash from Elmira P.D. suspects? A: `No'
Q: Did you steal cash and falsify business records at the Elmira Police Department? A: `No'
Q: Did you steal seized assets from the Elmira Police Property area? A: `No'
It is the opinion of the polygraphist, based upon the polygraph examination of JOSEPH M. MILLER, JR., that there were no significant reactions to the above questions that are indicative of deception."The Law on a Motion to Dismiss in the Interests of Justice:
Section 210.40, Subdivision 1 of the Criminal Procedure Law allows the court to dismiss an indictment "when, even though there may be no basis for dismissal as a matter of law . . . such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment . . . would constitute or result in injustice."
The statute sets forth ten factors for the court to consider in reaching its determination on the motion:
The interest of justice dismissal is to be, "`exercised sparingly' and only in that `rare' and `unusual' case where it `cries out for fundamental justice beyond the confines of conventional considerations'." People v. Harmon, 181 AD2d 34, 36 (1st Dept., 1992) (quoting People v. Insignares, 109 AD2d 221, 234, lv den., 65 NY2d 928, quoting People v. Belge, 41 NY2d 60, 62-63); People v. Serrano, 163 AD2d 497 (2nd Dept., 1990). The court in People v. Stern, 83 Misc.2d 935, 940 (Crim. Ct. NYC, 1975) stated, "(t)he section calls for a dismissal in the interests of justice where a `compelling' factor, consideration or circumstance requires it."
Law on Admitting Polygraph Evidence:
In People v. Vernon, 89 Misc.2d 472 (S.Ct. NY County, 1977) the defendant was charged with the felony of criminal possession of a weapon. The court found that the polygraph evidence, while not admissible at trial, was admissible at a Clayton hearing (a hearing on a motion to dismiss in the interests of justice). The court reasoned that the defendant was at a potential disadvantage in knowing what happened and in producing evidence concerning the gun, because of his voluntary intoxication. Although not required to produce evidence, if he wanted to, the defendant would in effect be attempting to prove a negative, i.e., that he did not possess the weapon.
"The defendant argues that where he, in fact, has the means to persuade the court on a Clayton hearing as distinguished from a trial, that injustice would result, the court should not anaesthetize itself from such persuasion, even though it be by means impermissible on a trial and, perhaps even more so because it is unavailable on the trial." Id. at 474.
In the end, the court found the evidence to be probative of the issues before it and found that it was properly admitted at the Clayton hearing.
The Vernon decision is cited in the case of People v. Grampus, NYLJ March 21, 1983, at 15, col 1 (S.Ct., Bronx County), a taxicab robbery case, wherein the defendant was identified by the taxi driver. Grampus claimed that he was innocent and alleged that at the time of the robbery he was at another location with a friend. Both the defendant and the alibi witness friend passed polygraph tests and offered the test results at a Clayton hearing. The court found the test results were a "compelling factor" as referred to in the statute. It further found the evidence to be probative and found that the danger of usurping the function of the trier of fact was not present in a Clayton motion decided by the court. Upon receiving the evidence, the court went on to deny the Clayton motion, distinguishing the case from those based solely on circumstantial evidence. The court noted that there was direct identification evidence of guilt, which should be tested before a jury.
An examination of the language of the statute itself provides justification for the court to consider the evidence of the polygraph test results. Section 210.40, Subdivision 1(c) directs the court on the motion to consider "the evidence of guilt, whether admissible or inadmissible at trial (emphasis added)." The fact that the evidence is inadmissible at trial is thus not determinative of its admission on a Clayton motion.
Although not admissible at trial, polygraph evidence does serve a purpose, and is relied upon, within the criminal justice system. The court in People v. Mondon, 129 Misc.2d 13, 15 (S.Ct., NY County, 1985) noted that polygraph evidence was inadmissible in New York State. "Nevertheless, the results of polygraph examinations are deemed of enough dependability to be permitted in administrative hearings ( May v. Shaw, 79 AD2d 970) and also in civil cases, at least by stipulation ( Kresnicka v. Kresnicka, 48 AD2d 929; Zinn v. Bernic Constr., 99 Misc.2d 510). Moreover, the private sector increasingly has employed the polygraph as a means of investigating industrial sabotage and employee criminality.
In addition, and perhaps most importantly in the context of this case, law enforcement officials frequently avail themselves of lie detector testing. District Attorneys often direct such examinations as an aid in determining whether a case is in need of further investigation; whether dismissal proceedings are appropriate; and, when a trial is contemplated, whether a particular person should be called as a witness. In short, whether its results are admissible or not, the polygraph appears to be a sufficiently reliable and valid investigatory tool, and has been praised as such ( see, People v. Cavagnaro, 88 AD2d 938; Matter of McGinigle v. Town of Greenburgh, 59 AD2d 908, 910; People v. Vinson, 104 Misc.2d 664, 667-668)."Consideration of the Statutory Factors: (a) the seriousness and circumstances of the offense:
The offenses charged in this indictment are class D and E felonies and one misdemeanor. The penal law certainly contains more serious charges. However, the charges do implicate the administration of the law and the public trust in said administration.
(b) the extent of harm caused by the offense:
The persons or entities legally entitled to the money in question were harmed by its loss. This harm is, however, insignificant in comparison to the potential harm caused to the morale and reputation of the police department.
(c) the evidence of guilt, whether admissible or inadmissible at trial:
As stated previously, there is no direct evidence of the defendant's guilt. The fact that the defendant was either directly or indirectly involved in the cases in which money is missing is not specific evidence of his guilt. In his capacities as narcotics' investigator, detective and shift supervisor, Sgt. Miller was involved in many Elmira Police Department cases and had legitimate need to process evidence in many of those cases. Thus, it is not surprising that he handled evidence. He was not the only person involved with these cases, not the only one who had access to the evidence storage areas and not the only one to be involved in the processing of the evidence.
The paperwork showing Sgt. Miller's involvement with the missing evidence was largely created by Sgt. Miller. In some instances the paperwork which should be located in the police department concerning the evidence could not be found. In those instances the only paperwork connecting the defendant with the evidence in question was found in the case files of the District Attorney. The copies maintained in the DA's files were created by Sgt. Miller, copied by him and forwarded to the DA's Office by him. It does not seem logical that one who intended to steal the money would create such a paper trail. If Sgt. Miller did destroy the paperwork at the police department, why would he not have attempted to destroy the copies which he knew to be at the District Attorney's Office?
In securing money into evidence, why would a person having his name attached to the evidence purposely note the correct amount on the evidence tag and then pocket some of the money? Instead, it seems more logical that the person would pocket the money and then mark the evidence tag with the reduced amount. At worst, the arrested person might disagree with the amount noted on the evidence tag. This method of deception would seem to be preferable, from the perspective of a thief, than to have your own records show the discrepancy.
The circumstantial evidence presented to the grand jury must now be balanced with the evidence of the polygraph. This polygraph examiner is a retired police officer and has conducted more than 15,000 examinations. He is familiar with police operations, police procedures and evidence handling. Based upon his experience and expertise, he found truthfulness and no deception in Sgt. Miller's statements that he did not steal the money or falsify the records.
Miller is not required to establish his innocence. The People are required to establish his guilt beyond a reasonable doubt. If he intended to introduce evidence, Miller would be placed in the position of attempting to establish a negative — that he did not do something. The polygraph test evinces a positive — that he told the truth in his denials. If the defendant testified at trial, his veracity and credibility would be a paramount issue. Is he telling the truth when he denies taking the money and falsifying the records? In the context of this motion, the court is able to consider the polygraph results as an aid to resolve this number one question.
Given the circumstantial nature of the evidence, the court has serious concerns that the case would not survive a motion for a trial order of dismissal as provided in the Criminal Procedure Law. The law requires the court on such a motion to review the legal sufficiency of the evidence, viewed in a light most favorable to the People, to determine whether every element of the crimes charged have been established. People v. Beecher, 225 AD2d 943 (3rd Dept., 1996). If a prima facie case has not been established, the court must reduce or dismiss the counts of the indictment which are so deficient.
On a motion for a trial order of dismissal the court should not base its decision upon reasonable doubt. Holtzman v. Bonomo, 93 AD2d 574 (2nd Dept., 1983). The beyond a reasonable doubt standard is reserved for the trier of fact, in this case a jury. In the trial order of dismissal the court does not substitute itself for the jury, but makes a legal finding that there is the absence of evidence to establish the case. Having made that legal determination regarding the failure of proof, there is no need for the jury to consider the matter.
In a case where the matter survives the motion for trial order of dismissal and reaches the jury, the jury must consider whether the People have established the defendant's guilt beyond a reasonable doubt. We have concerns regarding the ability of the People to meet the lower standard of establishing a prima facie case, let alone the higher standard of beyond a reasonable doubt.
The Special Prosecutor has candidly admitted that his case is entirely based upon circumstantial evidence. If the case were to reach a jury, the jury would necessarily be required to draw inferences. In an entirely circumstantial case the law requires the court to instruct the jury as follows:
"Before you may draw an inference of guilt, however, that inference must be the only one that can fairly and reasonably be drawn from the facts, it must be consistent with the proven facts, and it must flow naturally, reasonably, and logically from them.
Again, it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence.
If there is a reasonable hypothesis from the proven facts consistent with the defendant's innocence, then you must find the defendant not guilty." CJI2d [NY] Evidence: Circumstantial.
It would appear in this case that: 1) there is legally insufficient evidence to show that the defendant is the one who committed the crimes charged, 2) based in part upon the circumstances involving monies regarding which the defendant was questioned and which were later found in the City Chamberlain's Office, there is some doubt whether the missing funds were stolen or whether they were lost or improperly documented/"accounted for," 3) there appears to be significant reasonable doubt, (4) there are certainly many reasonable hypotheses from the facts to be proven consistent with the defendant's innocence and (5) most significantly, there is evidence defendant is being truthful in his denial of guilt or culpability.
(d) the history, character and condition of the defendant:
The defendant is a thirteen-year plus veteran of the police department, serving as a narcotics' investigator, detective and shift supervisor. He has no criminal history. He has received a life saving award, an exceptional duty award, been named "officer of the year" in 1995, and has received several commendations and letters of recognition for his work in the police department.
There was no evidence that he has spent extraordinary amounts or has been living above his legitimate means.
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant:
There has been no such misconduct. Once the problems were brought to the attention of the Elmira Police Department, officials took all necessary steps to professionally investigate the situation and correct the problems. State Police were called in to assist and out-of-town State Police investigators handled the investigation, so that the perception and fact of the investigation would be "above board." The police department has taken steps to alter and tighten procedures. The department has challenges regarding its physical plant, being split between various locations and having its evidence storage areas moved several times. The actions of the police department, following the problems coming to light, have been appropriate and commendable.
Steuben County District Attorney John Tunney, the Special District Attorney prosecuting this case, has conducted himself in a very professional manner and has vigorously represented the People in this matter.
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense:
Under the particular circumstances of this case, the court does not see that sentencing this defendant would serve a positive purpose, given the nature of the proof against him. If it were clearly established, beyond a reasonable doubt, that a particular individual stole the money, this court would have no problem sentencing that individual. Those sworn to serve and protect may not put themselves above the law. Such a defendant would have violated both the law and a public trust.
(g) the impact of a dismissal upon the confidence of the public in the criminal justice system:
This type of case is clearly apt to shake the public confidence in the criminal justice system. Both the law and the public trust have allegedly been violated. Police officials have acted to change their procedures. Based upon the circumstances of this case, and in particular the results of the polygraph examination and the circumstantial nature of the evidence, or lack of evidence, the court does not believe the public interest would be served by a trial in this matter. In the opinion of the court, such a trial would not result in a verdict against this defendant and would further strain the morale of the police department.
Unless some person(s) confess, we are unlikely to know the complete facts of this situation. It seems apparent that adjustments in police procedures were required, and in fact changes have been made. It is unclear whether the problems were the result of poor procedures/sloppiness or of dishonesty.
If dishonesty was involved, the court is making a determination that there is not sufficient evidence that the source of any dishonesty was Sgt. Miller. In fact, the polygraph results lead the court to believe that Sgt. Miller was in fact not the source of any such dishonesty.
Other explanations have been given to explain why money might be missing. These include the arguments by Attorney Schlather on this motion, wherein he established the location of monies for which the police could not account (at least at some point during the investigation).
(h) the impact of a dismissal on the safety or welfare of the community:
Dismissal will not have an impact on the safety or welfare of the community.
(i) where the court deems it appropriate, the attitude of the complainant or victim with respect the motion:
Other than the loss of an officer in the line of duty, this would seem to be the worst of scenarios for a police department. Clearly no one in the police department can be happy about this situation and morale in the department must have been adversely impacted. The People have agreed to the polygraph procedure and the parties have submitted the motion to the court. No specific opinion on this motion from the police department has been provided to the court. A department representative was present in the courtroom when the instant motion was initially argued. It is apparent that responsible procedural measures have been taken and that if dishonesty was involved, as opposed to sloppy handling of evidence and record keeping, that the responsible parties are unlikely to be determined. It would seem that the best course for the community and the department would be for the department to move forward under its new procedural guidelines. Best efforts were used in this investigation and prosecution and "better" results are unlikely to be obtained.
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose: The court sees no such other facts or considerations.
Conclusion:
Having thoroughly reviewed and considered this matter, including all of the factors set forth in the statute, this court is of the opinion that this case should be dismissed in the interests of justice. The court finds the nature of the proof available in this case, taken together with the results of the polygraph examination of Joseph Miller, Jr., provide compelling factors clearly demonstrating that conviction or prosecution of the defendant upon this indictment would constitute an injustice. The defendant passed a polygraph examination wherein a very experienced polygrapher with a police background found that Miller was being truthful in his statements that he did not steal money from the Elmira Police Department or falsify records in that department. The Elmira Police Department has made procedural changes and should take pride in its response to this situation and in the level of professional service which it provides to the community. The defendant has no criminal record and in fact has a public record of good service to the community. To permit this matter to proceed to trial would, in the court's opinion, further erode the morale of the police department and serve no positive public purpose, especially in light of the results of the polygraph examination. The court believes that this decision is evidence that the criminal justice system in fact works; that this case was handled in a reasonable and prudent manner; that the taxpayers' resources were not squandered; and that the rights of this defendant and of society were preserved. We hope that the decision will be received with those understandings and that it will in fact improve the confidence of the public in the criminal justice system. In handling this case, the court and we believe counsel have discharged their statutory and ethical responsibilities to the best of their abilities.
Based upon all of the reasons stated herein, the indictment is dismissed in the interest of justice. This constitutes the decision, opinion and order of the court.