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United States v. Cummings

United States District Court, E.D. New York

July 19, 2017

UNITED STATES OF AMERICA
v.
THIRLEY CUMMINGS, Defendant.

          MEMORANDUM AND ORDER

          ROBERT M. LEVY UNITED STATES MAGISTRATE JUDGE

         This petty offense case stems from an incident that took place on July 11, 2014 on the grounds of Army Garrison Fort Hamilton in Brooklyn, New York. Defendant Thirley Cummings ("defendant"), a school bus driver who has since retired, is charged with: (1) Simple Assault pursuant to 18 U.S.C. § 113(a)(5); (2) Disorderly Conduct pursuant to 18 U.S.C. § 13 j and New York Penal Law § 240.20(1); and (3) Failure to Comply with a Lawful Order pursuant to 18 U.S.C. § 13 and New York Vehicle and Traffic Law § 1102. (See Misdemeanor Information, filed May 8, 2017.) The court held a bench trial on May 15 and 16, 2017.[1] See 18 U.S.C. § 3401(a). For the reasons explained below, I find defendant not guilty as to the simple assault and disorderly conduct charges, and guilty with respect to New York Vehicle and Traffic Law §1102.

         Background

         Three witnesses testified at trial. Arresting officer Nicholas DeRenzo testified jfor the government's case-in-chief, defendant testified on his own behalf, and Sergeant Kevin Haley testified as the government's rebuttal witness. As a result of the incident, defendant was detained for approximately thirty minutes and was issued violation notices for resisting arrest, N.Y. Penal Law § 205.30, disorderly conduct, Id. § 240.20(5), and failure to comply with a lawful order, N.Y. Veh. & Traf. Law § 1102. (See Complaint, filed Nov. 22, 2016 ("Compl.").) The evidence adduced at trial is as follows:

         1. Officer DeRenzo

         Officer DeRenzo was on routine patrol on the date of the incident, and testified that he received a radio call at approximately 11:00 a.m. alerting him to complaints of a hazardous traffic condition on Sterling Drive, adjacent to the Fort Hamilton Community Club. (See Transcript of Proceedings Held on May 15, 2017 ("5/15/2017 Tr."), at 16.) The Fort Hamilton Community Club includes a swimming pool enjoyed by visiting children from local summer camps. (See Government's Exhibit 1, filed May 23, 2017.)

         Upon reaching the scene in his patrol vehicle, Officer DeRenzo observed five or six school buses parked in and blocking the northbound lane of traffic on Sterling Drive. (See 5/15/2017 Tr. at 16-17.) Officer DeRenzo further observed a group of bus drivers standing on the opposite side of the street, and directed them to move the illegally parked vehicles. (See Id. at 17-18.) According to Officer DeRenzo, although the other drivers began moving their buses as directed, defendant did not. (See Id. at 18, 71.)

         Officer DeRenzo testified that he ordered defendant to move his bus several times, but defendant responded by telling him to "go inside" and would not comply. (See id. at 18-19.) Officer DeRenzo then asked defendant for identification. (See id. at 20.) When defendant refused, Officer DeRenzo instructed him to place his hands behind his back in order to effect his arrest. (See Id. at 21.) Officer DeRenzo testified that as he "went to grab custody of [defendant], " defendant "kept jerking his arms back." (See id.) As a result of this motion, defendant's forearm purportedly struck Officer DeRenzo's forearm, but no injuries were sustained. (See id.) Officer DeRenzo further testified that defendant was yelling and cursing during the encounter (see id. at 76), and that he radioed for assistance as he sought to gain custody of defendant (see Id. at 21-22). After an indeterminate time, Sergeant Haley arrived and assisted in placing defendant under arrest. (See id. at 22-23, 79.)

         2. Defendant

         Defendant, who has no criminal record and had been driving a school bus for almost thirty years, testified that it was an everyday occurrence for the summer camp buses to park in the northbound lane of traffic on Sterling Drive in order to pick up and drop off children at the swimming pool. (See Transcript of Proceedings Held on May 16, 2017 ("5/16/2017 Tr."), at 150, 153-54, 166, 172.) Defendant further testified that, on the date of the incident, Officer DeRenzo arrived at the scene, confirmed that the men gathered there were school bus drivers, and then turned to defendant and stated "I don't want to hear nothing from you. Show me some ID." (Id. at 183.) Defendant produced his wallet and Officer DeRenzo grabbed the wallet, pushed him against a nearby fence, and arrested him. (See Id. at 185.) Defendant denied that he physically resisted Officer DeRenzo's efforts to handcuff him. (See Id. at 215.)

         3. Sergeant Haley

         Sergeant Haley testified that he received a radio call for assistance, and that upon arriving he observed Officer DeRenzo grasping to control defendant's left hand and arm. (See id. at 230, 232-33.) Sergeant Haley observed that defendant's "right arm was somewhat down by his side, but maybe flailing up on the side, maybe six, ten inches out from the side of his body." (Id. at 241.) However, Sergeant Haley did not observe defendant strike Officer DeRenzo in any fashion. (See Id. at 262-63.) Sergeant Haley went over to assist Officer DeRenzo, grabbed hold of defendant's right arm and placed it behind his back. (See Id. at 234.)

         Discussion

         1. Si ...


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