James Kamau Dorcas

NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES PUBLIC REQUEST BUREAU IN THE MATTER OF: MICHAEL CONNELLY DMV CASE NO.:- DMV VIOLATION NO.: ADMINISTRATIVE LAW JUDGE FRANCINA PERSAUD-ALLI HEARING DATE/TIME: July 27, 2020 1:00 p.m. HEARING LOCATION: HAMPTON BAYS APPEARANCES: MICHAEL CONNELLY Respondent JUDITH E. PERMUTT, ESQ. Attorney for the Respondent OFFICER JOSEPH DIAZ Police Department Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 2 PROCEEDINGS 1 2 3 4 THE COURT: MS. PERMUTT: 6 nice and early. 9 Yes, my name is Judith Permutt. I am the attorney for Michael Connelly. THE COURT: 8 My name is Francina Alli. Caller number one, can you identify yourself? 5 7 Good afternoon. Good afternoon, Ms. Permutt. MS. PERMUTT: You are very welcome. THE COURT: I am. My name is Francina Alli, and I will be presiding over this case here today. 11 today? 12 MS. PERMUTT: 13 THE COURT: 14 MS. PERMUTT: Okay. All right. So,-- [Interposing] I do have a question. have a question, for the future. 16 to – to call in or appear if I do? THE COURT: Is your client appearing Yes, he is. 15 18 you are comfortable with. MS. PERMUTT: 20 THE COURT: Okay. I do Is it necessary for my client It is completely up to you. 19 It is whatever It is completely up to you. Okay, great. I – I see we – I am seeing, on my screen, that 21 we have a caller that just joined us. 22 yourself please? 23 MR. MICHAEL CONNELLY: 24 THE COURT: 25 Are you the administrative judge? 10 17 Thank you for Okay. attorney is here. Can you identify Michael Connelly. Good afternoon, Mr. Connelly. Your And we are waiting for the police officer. Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 3 PROCEEDINGS 1 My name is Francina Alli. 2 Judge presiding over this matter. 3 4 MS. PERMUTT: Judge, could – could you spell your last name please? 5 THE COURT: 6 MS. PERMUTT: 7 THE COURT: 8 that just joined us. 9 10 11 I will be the Administrative Law A-L-L-I. Okay, thank you. You are welcome. I see that we have a caller Can you identify yourself please? ALJ PATRICK CARROLL: Yes, good afternoon. It is ALJ Patrick Carroll. THE COURT: Good afternoon, Judge Carroll. Just Ms. 12 Permed and Mr. Connelly, Patrick Carroll is also an 13 Administrative Law Judge with the DMV, and he is just going to 14 be listening today. 15 MS. PERMUTT: Okay, no problem. 16 ALJ CARROLL: And Judge Alli, I am just going to mute my 17 phone. 18 know. If you need to have me speak, for any reason, let me 19 THE COURT: 20 ALJ CARROLL: 21 THE COURT: 22 MS. PERMUTT: Sure. I will. Thank you. Thank you. 23 police officer? 24 THE COURT: 25 MS. PERMUTT: What is the policy as far as waiting for the How long do you wait? It is 15 minutes. Okay. Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 4 PROCEEDINGS 1 THE COURT: 2 MS. PERMUTT: 3 THE COURT: Fifteen minutes from one o'clock. Okay. So, thank you both for being nice and early. 4 But it is not 1:00 yet. 5 o'clock. 6 MS. PERMUTT: 7 THE COURT: 8 MS. PERMED: 9 THE COURT: 10 11 And I will start the countdown at one Okay. All righty? If we do – [Interposing] [inaudible: 1 second] – go ahead. MS. PERMUTT: Sure. I just wanted to let you know, if we 12 do end up adjourning the meeting, I can't do it on Friday. 13 I am just putting in a request that you do not schedule it for 14 a Friday. 15 THE COURT: 16 that. 17 Friday. Okay. So, I do not have a lot of control over I can certainly put it in the Order and request not a 18 MS. PERMUTT: 19 THE COURT: 20 MS. PERMUTT: 21 THE COURT: 22 MS. PERMUTT: 23 THE COURT: Yes. But I – I— I would appreciate that. I will make that request. Thank you. All righty. So, I will mute myself until – 24 well, we have to wait for the police officer. 25 again. It is now 1:00 p.m. Good afternoon, We are on in the matter of Michael Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 5 PROCEEDINGS 1 Connelly, Case Number-. 2 had a caller just join us. 3 4 OFFICER JOSEPH DIAZ: Caller number – I see that we Can you please identify yourself? Yes, this is – Officer Joseph Diaz, with the Mount Vernon Police Department. 5 THE COURT: 6 OFFICER DIAZ: 7 THE COURT: 8 Flores is appearing? 9 Officer Diaz good afternoon. Hi, how are you? I'm good, thank you. OFFICER DIAZ: Welcome. Do you know if Officer Officer Diaz? Yes, ma'am? 10 THE COURT: 11 OFFICER DIAZ: 12 THE COURT: 13 officer on the case? Do you know if Officer Flores is appearing? I have no idea, ma'am. Okay. 14 OFFICER DIAZ: 15 THE COURT: And you are the arresting police Yes, I am. All right. So, we will start with you. I 16 don't know if he will appear, but we will – we will start with 17 you. 18 OFFICER DIAZ: 19 THE COURT: Okay. So, all parties are – are here. 20 Mr. Michael Connelly is here. 21 Permutt. 22 myself. 23 – thank you, everyone, for being early. Mr. Connelly is here. This is – this is counsel Judith I have an observing ALJ, and So, we will start the hearing now. 24 OFFICER DIAZ: 25 THE COURT: Attorney for Thank you everyone Absolutely. We are on in the matter of Michael Connelly, Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 6 PROCEEDINGS 1 Case Number 20-7146, of the DMV Safety Hearing Bureau. 2 is Francina Alli. 3 to this case. 4 scheduled for 1:00 p.m. 5 to proceed today? I am the Administrative Law Judge assigned Today's date is July 27, 2020. 6 OFFICER DIAZ: 7 MS. PERMUTT: 8 THE COURT: 9 It is now 1:01 p.m. The hearing is Is everyone ready Yes, ma'am. Yes. Thank you. Now, before we start, I would like to go over some ground rules. As you are all aware, this is a 10 new forum for conducting these hearings. 11 it is a work in progress. 12 are all to adhere to the same rules. 13 My name And it's – we are – But it will work out better, if we So, this is a DMV Teleconference Hearing. The hearing is 14 being recorded. 15 recording of this hearing. 16 courtroom decorum does apply. 17 noises. 18 that you do not get disconnected in the midst of the hearing. 19 You should not be answering any calls, messages, texts, or 20 emails during this hearing. 21 have been submitted prior to the hearing. 22 The DMV recording is the only official And all ordinary standards of Be conscious of any background Your telephone or computer should be fully charged so Any documentary evidence should Yes. So, we are on the record in the matter of Michael 23 Connelly, again record number – case number-. 24 is being held pursuant to 1194 of the VTL, which is to 25 determine an alleged chemical test refusal, which occurred on Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- The case 7 PROCEEDINGS 1 2 May 22nd, 2020, in the county of Westchester. The hearing will be conducted as follows. Testimony by 3 the police officer. 4 by testimony of the Respondent, if any. And all parties will 5 be allowed to make a closing statement. The appearances before 6 me are, counsel, can you state your name and address for the 7 record please? - MS. PERMUTT: Avenue, Number 231, Mount Vernon, New York 10550. THE COURT: Good afternoon, and thank you. MR. CONNELLY: I’m sorry; what did you say your address is? 130 Washington Street, Mount Vernon, New York 10550. 18 THE COURT: 19 and command please? 23 Michael Connelly, 131 [inaudible: 1 second] Street, Mount Vernon, New York 10550. MR. CONNELLY: 22 Mr. Connelly, can you state your name and address for the record please? 16 21 Good afternoon, Judge. THE COURT: 20 Followed Yes, it is Judith E. Permutt, 46 Gramatan 15 17 Followed by cross examination. Okay, thank you. OFFICER DIAZ: Yes. Officer, your name, shield, My name is Officer Joseph Diaz, Badge Number 2038 with the Mount Vernon Police Department. THE COURT: Thank you. Now, before we start, I would like to mark the Notice of Hearing. 24 OFFICER DIAZ: 25 THE COURT: Bear with me one second. Mm hmm. All right. Can – counsel, are you – do you Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 8 PROCEEDINGS 1 have a computer screen in front of you? 2 MS. PERMUTT: 3 THE COURT: 4 MS. PERMUTT: 5 webcam? 6 7 10 Okay. Can you see the Notice of Hearing? What do you mean? What do you mean? THE COURT: Should I hook up my Where would I see this? Are you logged on through WebEx, or are you calling in – are you just calling in? 8 9 I do. MS. PERMUTT: I just called in. my first time doing it. I – just because this is If there is something else that I should be – I didn't really understand about the calling. 11 THE COURT: 12 MS. PERMUTT: 13 THE COURT: Yes, absolutely. I mean about the WebEx. Not a problem. It is not a problem at all. 14 There is a way, like you could go in through WebEx and follow 15 the same instructions, and actually see the screen in front of 16 you. 17 all the documents you would have had anyway. But if you are not, it is not a problem, because it is 18 MS. PERMUTT: 19 THE COURT: 20 Okay. All right. The Notice of Hearing, did you receive the Notice of Hearing? 21 MS. PERMUTT: 22 THE COURT: Let me just [inaudible: 1 second]. It would have been – it wouldn't have been 23 sent to you, directly. 24 Mr. Connelly, as your – your appearance was recorded after the 25 Notice went – was sent out. It would have been sent to your client, Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 9 PROCEEDINGS 1 MS. PERMUTT: Right. 2 – he gave it to me. 3 THE COURT: 4 MS. PERMUTT: 5 THE COURT: 6 MS. PERMUTT: 8 THE COURT: 9 MS. PERMUTT: 10 So, I do have it. Yes. Great. Thank you. THE COURT: 12 MS. PERMUTT: 13 THE COURT: Does anyone have any objection? No. Okay. Did you say that was Notice 1, is that what I'm sorry; Exhibit 1 – Exhibit 1. Okay, thank you. And that was notice to both police officers 14 and Mr. Connelly. 15 Basically, the same notice was – 17 I am marking that into it was? 11 16 He Great. evidence as Motorist 1. 7 I do have the Notice of Hearing. MS. PERMUTT: And that would be a seven page document. [Interposing] I just have two pages. So, I do not have— 18 THE COURT: 19 MS. PERMUTT: 20 THE COURT: [Interposing] Yes. -- the entire document. Yes. But yours would be – the only thing that 21 is different is the police officers' information and address. 22 Because a duplicate copy of each notice would be sent to each 23 interested party. 24 MS. PERMUTT: 25 THE COURT: Okay, thank you. So, you would have one, but it was also sent Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 10 PROCEEDINGS 1 to two of the police officers. 2 as Exhibit 1. 3 Notice of Hearing, which your client would have gotten before 4 this hearing, I am marking that into evidence as Exhibit 2. 5 Are there any objections to that? MS. PERMUTT: 7 THE COURT: No. Thank you. 8 right hand please? 9 OFFICER DIAZ: 11 THE COURT: Officer Diaz, can you raise your Yes, Ma'am. Do you swear to tell – do you swear to tell the truth? 12 OFFICER DIAZ: 13 J O S E P H 14 testified as follows: Yes, Ma'am. D I A Z, having been first duly sworn, 15 DIRECT EXAMINATION 16 BY ALJ FRANCINA ALLI 17 Q: 18 I am marking that And also, the Notice of Temporary Suspension and 6 10 All right. Did you encounter Mr. Michael Connelly on May 21st, 2020? 19 A: Yes, I did. 20 Q: What is the nature of your encounter? 21 A: He was highly intoxicated. 22 to respond to. 23 sector. 24 Connelly in his vehicle. 25 telephone pole. It was a call that I had It was a 9-1-1 call that came out. It was my I drove there and I visually observed Mr. Michael And his vehicle – he crashed into a Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 11 PROCEEDINGS 1 Q: Okay. 2 A: Then we – well, myself and another officer – other 3 4 officers on the scene approached him— MS. PERMUTT: [Interposing] Objection. Judge, I – I just 5 want to object that that is not based on firsthand knowledge, 6 that he crashed into it. 7 actually observed. 8 crashing, or the alleged crashing. 9 THE COURT: Because I assume he did not observe the Okay. But my question to him was what is the 10 nature of the encounter. 11 to a 9-1-1 call. 12 an accident? 13 A: Correct. 14 Q: Officer, Diaz? 15 16 I would just ask him to state what he And he did testify he was responding And I am assuming it was a call responding to Yes. So, I – I believe the adequate foundation has been laid for that. MS. PERMUTT: Yes, I'm just – just for the record, I am 17 just – I am just objecting to him testifying that my client 18 crashed into a pole rather than testifying as to what he 19 observed, as far as the car and the pole. 20 did not observe my client crashing into the pole. 21 that's what I am [inaudible: 1 second]. 22 THE COURT: 23 note for the record. Okay. Because I assume he That's – Okay, absolutely, your objection is 24 Q: Yes, Officer Diaz, can you proceed please? 25 A: Yes. So, when I responded, I visually observed Mr. Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 12 PROCEEDINGS 1 Connelly inside the driver's seat of his vehicle, and his 2 vehicle was into the pole when I got there. 3 Vernon Fire Department was there on scene, before I got there. 4 Then my sergeant, Sergeant Simonet responded as well, along 5 with two ESU members. 6 out of the car. 7 Connelly. Fire – Mount The two ESU members helped me get him And he could not stand on his own, Mr. 8 We tried to the FSST's on him. 9 one that we were trying, and we couldn't. The gaze nystagmus is the We couldn't even 10 finish the rest of the FSST's because he was way too 11 intoxicated, and it would have put him in danger to go further 12 with the tests. 13 Q: Okay. 14 A: What happened after that is he was placed in What happened after that? 15 handcuffs. 16 I couldn't get over to Mr. Connelly, because it was all 17 blocked. 18 come up through Columbus. 19 and when I got there, I didn't visually observe what happened 20 when I wasn't on scene, but from what Sergeant Simonet and the 21 officers on scene advised me was that he exposed himself— I then walked over to my police vehicle, which was, So, I had to go around the entire area, and I had to 22 MS. PERMUTT: 23 Honor, objection. I want to Columbus to Washington, [Interposing] Because I – Judge, - Your Hearsay. 24 THE COURT: 25 OFFICER DIAZ: Okay. Okay. Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 13 PROCEEDINGS 1 2 Q: Well, just bear with me one moment. physically observe what? So, you didn't What – what are you talking about? 3 A: When – because he was charged with indecent exposure. 4 Q: Okay. 5 6 All right. But other than that aspect of it, what happened after he was placed under arrest? A: We brought – I put him inside my police vehicle. 7 drove him to Mount Vernon Police Department, into the cell 8 block. 9 all prisoners. I placed him into the – the holding cell where we put We were trying to ask him questions. 10 Flores was there. 11 respond to anything. 12 couldn't even speak or keep his head up. He was – he was totally intoxicated. Q: What sort of questions were you asking him? 14 A: I was not asking him those questions. 15 Q: [Interposing] You weren't— 16 A: --Officer Flores. 17 Q: Yes. It was— Officer Flores was there? A: Correct. 20 Q: Okay. 22 He So, you were present the entire time that 19 21 Officer And he couldn't – Mr. Connelly couldn't 13 18 I Do you remember what Officer Flores said to Mr. Connelly? A: He was going over the – the DWI, the warnings, to Mr. 23 Connelly. 24 respond because he was – he was basically sleeping in the cell 25 block. And he asked him twice, and Mr. Connelly couldn't Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 14 PROCEEDINGS 1 Q: Hmm. Do you remember what warnings were given? 2 said the DWI warnings. 3 those warnings? 4 5 A: You Do you remember anything specific about No, I do not. I don't – I don't have the paperwork. I don't have any paperwork in front of me. 6 Q: Okay. 7 A: I was advised, last minute, that this was going on. 8 9 10 I am actually on vacation. Q: Okay, that's fine. So, one other question. questions – so, did Mr. Connelly respond in any matter at all? 11 A: No. 12 Q: Nothing verbally, nothing by conduct. 13 He didn't indicate in any matter at all? 14 A: No. 15 Q: Okay. 16 THE COURT: 17 Q: 18 The Yes. Counsel – I'm sorry. Officer Diaz, is there anything else you would like to say to me? 19 A: 20 THE COURT: 21 MS. PERMUTT: 22 CROSS EXAMINATION 23 BY MS. JUDITH PERMUTT 24 Q: Good afternoon, Officer Diaz. 25 A: Good morning – good afternoon. No, Ma'am. Okay. That's about it. Counsel? Okay, thank you. Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 15 PROCEEDINGS 1 Q: Good afternoon. You – you responded to this scene. 2 You were told that it was a – you were responding to a traffic 3 accident with possible injuries or injuries, correct? 4 A: Correct. 5 Q: Okay. Are you aware that Officer – Officer Ludwicki 6 [phonetic] and Officer Leanti [phonetic], in their Case 7 Supplemental Narrative Report, said that they were dispatched 8 to accident – to an accident with injury. 9 that? 10 A: Yes. 11 Q: Okay. Are you aware of And even in your police report you said that 12 you were responding to an accident with possible injuries, 13 correct? 14 A: Correct. 15 Q: Okay. 16 Correct. So, when you arrived at the scene, you said that my client was in his vehicle, correct? 17 A: 18 THE COURT: 19 MS. PERMUTT: 20 THE COURT: Correct. Counsel, I'm – I'm sorry. Yes. So, I – on my own motion, I am going to close 21 the case. 22 1 second] – I'm sorry, can you hear me? I mean, at this time, while Officer Diaz [inaudible: 23 OFFICER DIAZ: 24 MS. PERMUTT: 25 Can everyone hear me? Yes, Ma'am. Yes. Mm hmm, yes. those arguments, but go ahead. Great. I was going to make Go ahead. Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 16 PROCEEDINGS 1 THE COURT: Yes. While Officer Diaz's testimony was 2 completely credible, there – there is a major element that is 3 missing, which is – there are four – four elements that have to 4 be established. 5 which Officer Diaz clearly established. 6 He was responding to a 9-1-1 call. 7 cause for the arrest. 8 third was the warnings were given. 9 that. The first is reasonable basis for the stop, There was an accident. The second is probable He also clearly established that. The He also clearly established Although he didn't remember the specifics, he was 10 present when the warnings were given. 11 which is very important, is that – that Mr. Connelly actually 12 refused. 13 that, I am going to close the case today. 14 anything else? And we have not established that today. 15 MS. PERMUTT: 16 OFFICER DIAZ: 17 THE COURT: 18 MS. PERMUTT: 19 OFFICER DIAZ: 20 THE COURT: 21 MS. PERMUTT: 22 THE COURT: 23 Stay, just be quiet. 24 But the final component, So, based on All right. Is there [inaudible: 1 second]. Thank you, Your Honor. All right. You both have a great day. Nothing from me. Thank you. You too, Ma'am. Thank you. Bye bye. Thank you. Hang on. Bye bye. Let me just make sure I save this. I am now ending this. [END OF HEARING] Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:- 17 C E R T I F I C A T E I hereby certify the foregoing, consists of 17 pages, inclusive, to be true and accurate transcription from the tapes provided to me, to the best of my skill and ability. Witness my hand, this 2nd day of February 2021. James Kamau Dorcas Transcriptionist Ubiqus 61 Broadway – Suite 1400, New York, NY 10006 Phone:- * Fax:-