A woman arrested at gunpoint after she attempted to take a bag left in an unlocked “bait car” has had her case thrown out by a Bronx judge who castigated police for going to great lengths to trap “a hard-working, family-oriented woman with an otherwise unblemished record.”
“To deny dismissal in this case, where, instead of using their time to fight the significant amount of serious crime in the county, the police went through elaborate lengths, involving the use of a car and several officers, to contrive this scenario to lure, bait and trap a law-abiding person into taking property, and then to draw their guns on a crowded public street to arrest her, and then to require her to come back to court for almost three years to fight the charges would greatly damage the confidence and trust of the public in the fairness and effectiveness of the criminal justice system, and rightly so,” Bronx Criminal Court Judge Linda Poust Lopez wrote on Jan. 24 in granting the defendant’s motion to dismiss in People v. Myers, 2010BX04905.
As Lopez tossed the case against Deirdre Myers, a 40-year-old woman with no arrests before or since the incident, the judge noted New York City Criminal Court has encountered its “fair share” of so-called “lucky bag” cases. Police using that technique leave packages with valuables conspicuously on display in locations like street corners and subways. When “a hapless individual” takes the bag, police make an arrest, the judge said.
But the case against Myers involved a scenario that went “beyond” the typical “lucky bag” operation, the judge observed.
According to Myers’ attorney, Ann Maurer in the Bronx criminal practice of the Legal Aid Society, Myers and her daughter were sitting on the stoop of their building on an afternoon in July 2010.
A police car chased another car that stopped in front of the building. An undercover officer posing as the driver ran out of the unmarked car, and the police officers pursued him.
Once the “suspect” was apprehended, Maurer said he shouted, “Someone get my phone!”
A MetroCard and a Visa bank card had been left in plain sight in the unlocked car. Also left in the car was a dollar bill wrapped around cut-up newspaper to give the appearance of “large bundle of cash.”
Myers’ daughter, then 15, went to the car to get the items, with Myers close behind. Other officers then arrested Myers, who maintained she was getting the items to safeguard them for the arrestee.
Lopez noted that Myers had no criminal record and had several jobs with the city before being laid off. She now cares for her elderly grandmother and several children while job hunting, Lopez wrote.
Myers was charged with petit larceny and criminal possession of stolen property, facing a maximum one-year sentence. Maurer said the daughter was apparently given a desk appearance ticket for Family Court but was never charged.
Lopez said the case against Myers was “adjourned endlessly” in the last 2½ years while the prosecution “never made an offer” and insisted on Myers pleading to the charges.
Lopez noted that once Myers’ filed her motion to dismiss in the interest of justice, the prosecution offered the disposition of disorderly conduct with a conditional discharge during an off-the-record bench conference.
Interests of Justice
When weighing a dismissal motion in the interest of justice, Lopez said, some of the factors a judge must weigh are “seriousness and circumstances of the offense,” the offense’s harm, evidence of guilt and the “history, character and condition of the defendant.” Another factor is “impact of a dismissal upon the confidence of the public in the criminal justice system.”
Lopez called Myers “a hard-working, family-oriented woman with an otherwise unblemished record.” There also was no harm in the victimless, “fabricated” crime, she said, noting that even conviction for a violation could harm Myers’ job prospects.
Moreover, the evidence of guilt was “not overwhelming,” the judge observed, adding the prosecution failed to present evidence countering Myers’ “perfectly reasonable defense.”
The judge noted that Myers was arrested “almost immediately” after taking the items. “Had some time elapsed, the police would have been able to observe whether defendant left a note on the car to alert the owner to contact her for his property, or whether she instead took it with her or tried to use it,” said the judge.
Yet the “most compelling factor,” said Lopez, was the consequence of public confidence in the courts.
“This is a county where distrust of law enforcement is high,” said the judge. The public “quite pervasively, and much more than in the other counties of this City” think law enforcement do not take on serious crimes as aggressively as they should and think law enforcement does not protect its communities as it should, Lopez said.
“They also feel, conversely, that they and their children are treated unfairly by law enforcement, and that stops are made, and arrests effected, that perhaps should not be,” Lopez added.
As a result, she said denying the motion would greatly harm public confidence in the courts “and rightly so.”
Maurer said in an interview that several “bait car” cases are pending in her office, with one now ready for trial.
Peter Jones, attorney-in-charge of Legal Aid’s Bronx criminal practice, said the “decision reflects similar widely held opinions in the community that perhaps resources could be better spent.”
Steven Reed, a spokesman for the Bronx District Attorney’s Office, said the prosecution would not be appealing this case.
Reed noted the “bait car” case was being used in an area of the Bronx where there had been a spike in “auto-related crime.”
“When a ‘bait car’ is used in an undercover sting operation normally it is locked. In this case it was not,” he said, adding that plea offers have been made “on multiple occasions.”
Bronx Assistant District Attorney Rhea Thomas appeared for the prosecutor’s office.
The police department did not respond to a request for comment.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.