Legal Question in Criminal Law in New York

In issue during a Mapp hearing: Did the police vilate 4th amendment by seizing & searching my car while parked on the street. At the hearing two officers testified they found my vehicle parked illegaly in front of a fire hydrant. The NYPD Motor Vehicle Invoice states the vehicle was taken for safekeeping (not for being illegaly parked). The address where the vehicle was found does not have a fire hydrant. No other police report corroborates that story either. Simply put-no mention of a fire hydrant. Moreover, the NYPD never issued a summons for the vehicle allegedly illegaly parked. Yet, the judge discounted what was reduced into writing and ruled in favor of the State based stricktly upon testimony-shaky testimony at best. After the hearing I located a witness who lived in the house where the vehicle was parked in front & he claims the vehicle was not in front of the fire hydrant. I requested to reopen the hearing but was denied. I requested a Frank's hearing and was denied. On direct appeal I asked the Appellate Court to review but they concluded unpreserved or without merit-no other explanation.

I filed a Federal Habeas and, asked the judge to review based upon a ruling against the weight of evidence, against the law. claiming I did not get a full and fair opportunity to present all of the evidence and to hold a Frank's suppression hearing to controvert the search warrants that were ultimately obtained.

Does my petition have a chance? Can the Judge review the facts of the hearing and find the state did not produce clear and convincing evidence?


Asked on 2/13/11, 11:20 am

1 Answer from Attorneys
peter bark bark & karpf

The seizure of the car , I believe is a constitutional issue that the federal Court can consider. The issue is the nature of the evidence that there was no hydrant at the location where the car was seized. If you merely had testimony of the lack of a hydrant you may be out of luck. What should have been done was to subpoena city records to show there was no hydrant. If the police changed their testimony to put the car in a different location from their reports to a place where a hydrant was located, you may have a shot in federal Court. Good luck.

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Answered on 2/13/11, 4:37 pm


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