While the vast majority of TLC suspensions on arrest flow from misdemeanor arrests and off-duty crimes, there are some instances where the alleged crime was on-duty and a felony. Taxi & Limousine Comm'n v. Roach, OATH Index No. 1864/23 (Feb. 3, 2023), is such a case. But I was still able to persuade the ALJ to recommend reinstatement by undermining the criminal case and presenting outstanding character evidence.
In this case, the driver, Dina Roach reached the end of her trip only to have the passenger say she had no money to pay, but could get it from a friend inside his apartment. The driver let her go obtain the money, but the passenger left her phone behind. Exactly why she left the phone was in dispute.
When the passenger returned, she still had no money so Dina, following a TLC rule, drove to the nearest police precinct. The passenger held onto the car as the driver drove away--either for a few feet or 200 feet-- apparently injuring herself in the process. As the driver was reporting a crime for which she was the victim, she was herself arrested and originally charged with felony assault. The prosecutor, however, quickly dropped the assault charge, but replaced it with a felony robbery charge, premised on stealing the passenger's phone.
The driver prevailed mainly because the entire theory of the crime was implausible. Here is what ALJ Fogel concluded:
For purposes of this inquiry, the pending criminal charges must be considered “true.” See Nnebe, 931 F.3d at 90 (“[w]e see no constitutional infirmity in a process that allows for contextspecific findings but does not open the question of a driver's factual guilt of the criminal charges”). However, even taking the criminal charges as true, respondent offered significant mitigation. Respondent credibly testified that she went to the police to report the complainant for not paying the fare. This is consistent with the arrest report, which noted that respondent was arrested at the 103rd precinct two hours after the incident. There was no explanation for why respondent would have gone to the police other than to report the complainant for nonpayment.
Respondent's prompt actions in reporting the incident to the police undercut some of the allegations in the police reports. Neither Nnebe nor petitioner's rules require accepting every detail in a police report or criminal court complaint as true. See Taxi & Limousine Comm'n v. Perez, OATH Index No. 2524/22 at 3-4 (July 8, 2022), adopted, Comm'r Dec. (July 11, 2022) (suspension lifted where complainant signed statement several weeks after the arrest indicating she could not “confirm or deny” anything about what happened before respondent's arrest, when she was “under the influence of alcohol”). Here, information that the complainant reported to the police casts doubt on her narrative.
Most notably, the criminal court complaint states the complainant reported that she held onto respondent's car for 200 feet. Crediting this statement would mean the complainant somehow held onto a moving vehicle for two-thirds the length of a football field. The allegation is also inconsistent with the arrest report, which states that the complainant only held onto the car for “several” feet and suffered a “minor injury.”
The implausible statements in petitioner's evidence about the complainant holding onto a moving car for 200 feet are significant, and suggest that the complainant exaggerated the incident when reporting it to the police. See Taxi & Limousine Comm'n v. Bhuyan, OATH Index No. 969/22 at 5 (Dec. 22, 2021), adopted, Comm'r Dec. (Dec. 29, 2021) (noting that there were “significant inconsistencies between the police arrest report and the criminal court complaint” that were “troubling and cast doubt” on the specific allegations of physical force in the reports). Respondent acknowledged speaking with the complainant through an open side window, which is where the complainant alleged she held onto the car. However, the embellishment of details in the criminal court complaint diminished the reliability of the complainant's statements about the leaving the scene charge, including her statements about her injuries, and made it unclear exactly what happened or where the complainant was located when respondent drove away. Without minimizing the seriousness of the charge of leaving the scene of an incident, the exaggerated nature of the allegations in the arrest report and criminal court complaint suggests that the conduct underlying the charge is not as serious as alleged.
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