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Vargas v. City of New York

Supreme Court, New York County

April 11, 2017

Walter Vargas, Plaintiff,
v.
The City of New York, Defendant.

          James E. d'Auguste, J.

         Plaintiff Walter Vargas ("Vargas") and defendant The City of New York ("City") move and cross-move, respectively, for summary judgment. For the reasons set forth herein, Vargas' motion is denied and the City's cross-motion is granted.

         Factual and Procedural Background

         The undisputed facts, as relevant to this motion, are as follows: On September 21, 2010, Vargas was stopped by New York City Police Department ("NYPD") Officers Brian Buith and Gurvinde Singh (collectively, "the officers") for a transit offense. The officers directly observed Vargas pass between two cars on a moving subway train in violation of 21 NYCRR 1050.9(d), an offense punishable by "criminal prosecution in the criminal court of the City of New York" and up to ten days in jail (21 NYCRR 1050.10(a)). The officers immediately approached Vargas, informed him that he was not permitted to walk through the end doors of a subway car to change cars, asked for his identification, to which he responded by producing a valid New York State driver's license on the train, and ordered him to get off the subway at the next stop. The officers then escorted Vargas to the mezzanine area of the subway station. Officer Singh remained with Vargas while Officer Buith went up to the street level to make a phone call to his precinct in order to determine if he had any active warrants or was a transit recidivist via a single record check, pursuant to an NYPD policy contained in a Transit Bureau Roll Call Training Memo dated December 16, 2009 (the "Policy"). See Porter Aff. Ex. 7.

         Upon calling his base, Officer Buith received a 10-18 response, which meant, as indicated in the Policy, discussed infra, that Vargas either had an open warrant or was a transit recidivist because he had previously been convicted of a transit-related offense. Vargas was then handcuffed and arrested, during which time the officers observed him drop a marijuana cigarette to the ground and step on it. Officer Buith then searched Vargas' person. Approximately six minutes elapsed from the time the officers observed Vargas illegally walk through subway cars on the moving train until the time he was handcuffed. Vargas was charged with Unsafe Riding in Restricted Areas Within the Transit Authority (New York City Transit Authority Regulation ("TAR") Section 1050.9(d) (21 NYCRR 1050.9(d))), Criminal Possession of Marijuana (New York Penal Law ("PL") Section 221.10(1)) and Tampering with Physical Evidence (PL Section 215.40(2)). Vargas was arraigned on September 22, 2010 at New York City Criminal Court. On April 13, 2011, Vargas pled guilty to Disorderly Conduct in violation of PL Section 240.20, was sentenced to four days of community service, and paid a $120.00 mandatory surcharge.

         The Policy states that "all persons stopped for [transit offense] violations will be the subject of a '10-75W' name check via radio. Arrests of rule violators will be predicated on any of the following factors, resulting in a 10-18 response by the Communications Division." Porter Aff. Ex. 7 (emphasis omitted). The Policy provides that individuals who commit a transit offense are subject to formal arrest if they have an active warrant or they are classified as a transit recidivist (a 10-18 response). [1] Id. A "transit recidivist" was defined by the Policy in force at the time of Vargas' arrest as an individual who: (1) received five or more transit offenses ("TABs") [2] within a 24-month period, (2) had any prior arrest for any offense in the transit system, (3) had any prior felony arrest in New York City, or (4) had an active warrant. Porter Aff. Ex. 7. [3] Further, the Policy stated that "[t]he absence of a predicate factor does not prohibit the arrest of an individual who cannot be issued a TAB/NOV due to a lack of identification or the failure to verify the same." Porter Aff. Ex. 7. [4] Based upon the Policy, any individual who committed a TAB violation, violated the NYCRR, or committed fare evasion with an aggravating factor [5] must be arrested, but could be given a desk appearance ticket ("DAT"), if eligible. Porter Aff. Ex. 7. The only individuals to whom NYPD officers were required to give a summons were individuals committing fare evasion. [6]

         On December 1, 2011, Vargas commenced this action against the City and Officers Buith and Singh. [7] In the first amended complaint, Vargas alleged the facts above and further claimed, inter alia, that "the police practice, in response to minor subway infractions, of moving subway passengers beyond the platform and extending the duration of detention beyond that which is reasonably necessary to issue a warning or summons after passengers provide a valid form of identification, is unconstitutional." Rayner Aff. Ex. B, ¶ 34. Vargas alleged that by wrongfully detaining him "for a minor subway infraction" in order to check his criminal record, and subsequently arresting him, the City violated Article I, Section 12 of the New York State Constitution ("State Constitution").

         Vargas now moves for an order, (1) pursuant to CPLR 3212, seeking summary judgment; (2) pursuant to CPLR 3001 and 3014, for a declaration that the following NYPD policies and practices violate Article I, Section 12 of the State Constitution: (a) moving a subway passenger who has committed a transit offense beyond the subway platform and extending the limited stop beyond the time necessary to issue a ticket or warning, after valid identification is produced; (b) extending the duration and scope of a limited stop of a transit offender, after valid identification is produced, for the purpose of conducting an investigation of the passenger's transit ticket and arrest history; and (c) requiring a full custodial arrest of subway passengers who commit transit offenses based solely on the passenger having transit ticket or arrest history that falls within the NYPD's criteria for designation as a "transit recidivist;" (3) an award of damages that will fully compensate him for his loss of constitutional rights, as well as the humiliation, embarrassment, and emotional distress suffered due to the City's alleged unlawful policy and practice in an amount to be determined at trial; and (4) an award of reasonable attorneys' fees, costs, and expenses incurred in prosecuting this action. The City cross-moves for an order, pursuant to CPLR 3212, seeking summary judgment dismissing all claims pled in the amended complaint.

         Discussion

         Although Vargas contends that his rights under Article I, Section 12 of the State Constitution were violated when the City, through the actions of its officers, arrested him, the officers' actions complied in all respects with the State Constitution. The Court's analysis follows.

         Probable Cause

         The officers had probable cause to arrest Vargas. [8] New York Criminal Procedure Law ("CPL") Section 140.10(1)(a) provides the authority for a police officer to arrest an individual without a warrant for "[a]ny offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence." The term "reasonable cause" has been equated with "probable cause." People v. Lombardi, 18 A.D.2d 177, 180 (2d Dep't 1963), aff'd, 13 N.Y.2d 1014 (1963). [9] Here, Officers Buith and Singh directly observed Vargas pass between two cars of a moving subway train in violation of 21 NYCRR 1050.9(d), which states, in pertinent part, that "[n]o person may use the end doors of a subway car to pass from one subway car to another except in an emergency or when directed to do so by an authority conductor or a New York City police officer." In this instance, there was no ongoing emergency at the time that Vargas passed through the subway cars, nor was he directed to pass through the cars by a police officer or any transit authority conductor. Notably, both state and federal courts that have examined the issue have uniformly held that officers who observe an individual violating 21 NYCRR 1050.9(d) have both authority and probable cause to arrest said person. [10] Accordingly, Officers Buith and Singh had probable cause to arrest Vargas when they personally viewed him committing a transit offense in violation of 21 NYCRR 1050.9(d).

         Permissibility of Running a Record Check

         Vargas' argument that his rights under the State Constitution were violated when the officers extended the stop of a subway passenger for a violation of 21 NYCRR 1050.9(d) in order to investigate the potential existence of outstanding warrants as well as his arrest history after having provided them with valid identification is without merit. Vargas asserts his constitutional rights were violated because: (1) the officers did not initially arrest him, they unlawfully extended his detention to conduct an unnecessary record check, pursuant to the Policy; and, thereafter, (2) arresting him based upon the results of the record check. Vargas' contention that the officers were not justified in detaining him to run a record check on his license "absent a reason to believe criminal activity was afoot" (Pl.'s Mem., at 10) has no valid basis. As discussed, supra, the officers had reason to believe that unlawful behavior had occurred because they saw Vargas engage in unlawful conduct, which gave them probable cause to arrest him. Even though Vargas contends that he was not under arrest until he was handcuffed, this is simply incorrect based upon the legal definition of an arrest: "The law is settled that an arrest occurs when an individual is not at liberty to walk away." People v. Ruiz, 136 A.D.2d 493, 496 (1st Dep't 1988); see also People v. Jones, 172 A.D.2d 265, 266 (1st Dep't 1991) ("An arrest is determined under an objective test of what a reasonable man, innocent of a crime, would have thought had he been in defendant's position."). Thus, "[e]ven without a technical formal arrest, a suspect's detention may in fact be the equivalent of an arrest, requiring probable cause." People v. Hicks, 68 N.Y.2d 234, 239 (1986). Vargas was under arrest since he was not free to leave once the officers ordered him off the train, asked for his identification, and escorted him into the plaza up until the point in time that he was placed in handcuffs. Following this line of reasoning, Vargas' claims fail because the resulting detention to run a background check was placed on someone already under arrest based upon probable cause. See, e.g., Ruiz, 136 A.D.2d at 496; People v. Jones, 38 Misc.2d 125, 128 (Co. Ct. Monroe County 1963) ("The continued questioning and the holding of the defendant amounted to an arrest."); see also n.16, infra.

         Even if Vargas was not under arrest until he was formally handcuffed, his claim that the Policy, to the extent it requires the detention of an individual to run a record check, still fails. New York courts have held that even where "the actions of the police officer fell short of the level of intrusion constituting an arrest [because] defendant was not placed in restraint[s] or told he was under arrest, " the police officer's "observance of the [suspected criminal activity] gave [rise] to a reasonable suspicion that defendant had committed a crime which would justify the initial stop and detention." Jones, 172 A.D.2d at 266-67. Further, the Court of Appeals has held that "judicial review of the legality of police conduct must weigh the interference such conduct entails against the precipitating and attendant conditions known to the police as the encounter unfolds." People v. Leung, 68 N.Y.2d 734, 736 (1986) (citing People v. De Bour, 40 N.Y.2d 210, 223 (1976); People v. Stewart, 41 N.Y.2d 65 (1976)). In People v. De Bour, supra, the Court of Appeals "set forth a synopsis, representing the gradation of permissible police authority in encounters with citizens in public places, that correlated the degree of the officer's objectively credible belief with the permissible scope of his intervention." Leung, 68 N.Y.2d at 736 (citing De Bour, 40 N.Y.2d at 223). The gradation, as it pertains to the within case, states that:

         The minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality. The next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure. Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL [at Section 140.50(1)] authorizes a forcible stop and detention of that person.

         De Bour, 40 N.Y.2d at 223 (citations omitted). According to De Bour, the greatest level of intrusion is a full custodial arrest when a police officer has probable cause to believe that a person has violated the law or committed a crime in his presence. Id. Here, despite the fact that a full custodial arrest occurred, the officers had the requisite level of suspicion required at all times during their interaction with Vargas, in accordance with De Bour.

         Since limited state law exists on the constitutionality of stopping and arresting an individual for a transit offense, the Court of Appeals has held that "because the search and seizure language of the Fourth Amendment and of [A]rticle I, § 12 is identical, they generally confer similar rights." People v. Robinson, 97 N.Y.2d 341, 350 (2001). While the Court of Appeals "has not hesitated to expand the rights of New York citizens beyond those required by the Federal Constitution when a longstanding New York interest was involved" (id.), it has never expanded such rights "when there was probable cause to conclude that a law or regulation has been violated" (id. at 351), as here. Accordingly, the application of case law analyzing one's Fourth Amendment rights is appropriate herein.

         Though not a perfect analogy, some courts have used traffic stop cases to analyze arrests for a "minor transit violation." Richardson v. Providence, 2012 WL 1155775, at *4 (E.D.NY Apr. 6, 2012); id. at *3 ("[T]he existence of probable cause to arrest-which the court found in its prior opinion-permitted defendants to execute a full arrest even for plaintiff's minor transit violation.") (citing Atwater v. Lago Vista, 532 U.S. 318, 354 (2001) (stating that a police officer may execute a full custodial arrest for a traffic violation, even a non-jailable offense, if there is probable cause that the individual committed even a minor crime)). [11] As will be discussed below, such an analogy with respect to 21 NYCRR 1050.9(d) is imperfect since traffic violations carry a maximum penalty of a fine and are not jailable offenses, [12] while transit offenses under 21 NYCRR 1050.9(d) are offenses punishable by potential incarceration. For example, Vargas' reliance on People v. Banks, 85 N.Y.2d 558 (1995), discussed infra, in which the driver was stopped for seat belt violations, the police officer had written tickets for the traffic infractions and deliberately delayed the conclusion of the stop beyond the justification for and purpose of the officer's mission. See 85 N.Y.2d at 560-61. The situation in Banks is not analogous to the instant case because Vargas was stopped for a jailable offense. The difficulty that courts confronted in determining the limits of the scope of police detention is that the initial traffic stop was made for non-jailable conduct that escalated into an ...


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