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POLICE DEPARTMENT

September 19, 2005

MEMORANDUM FOR: POLICE COMMISSIONER


Re:

Police Officer Derek Miller


Tax Registry No.
43 Precinct
Disciplinary Case No. 80602/05

The above-named member of the Department appeared before me on July 5, 2005


charged with the following:
1. Said Police Officer Derek Miller, assigned to the Bronx Court Section, while
off duty, on or about September 10, 2004, at approximately 2230 hours, in the confines of
the 49 Precinct, Bronx County, did wrongfully operate a motor vehicle while intoxicated.
P.G. 203-10 Page 1, Paragraph 5 - PROHIBITIED CONDUCT OPERATE
A MOTOR VEHICLE WHILE UNDER THE
INFLUENCE OF ALCOHOL OR DRUGS
2. Said Police Officer Derek Miller, assigned to the Bronx Court Section, while
off duty, on or about September 10, 2004, at approximately 2230 hours, in the confines of
the 49 Precinct, Bronx County, did wrongfully operate a motor vehicle while his ability
was impaired by an intoxicant.
P.G. 203-10, Page 1, Paragraph 5 PROHIBITED CONDUCT OPERATING
A MOTOR VEHICLE UNDER THE
INFLUENCE OF ALCOHOL
3. Said Police Officer Derek Miller, assigned to the Bronx Court Section, while
off duty, on or about September 11, 2004, in the confines of the 49 Precinct, Bronx
County, did wrongfully consume an intoxicant to the extent that said officer was unfit for
duty.
P.G. 203-04, Page 1, Paragraph 1 FITNESS FOR DUTY GENERAL
REGULATIONS

COURTESY PROFESSIONALISM RESPECT


Website: http://nyc.govinypd

POLICE OFFICER DEREK MILLER

The Department was represented by Antony Anisman, Esq., Department


Advocate's Office, and the Respondent was represented by Eric Sanders, Esq.
The Respondent, through his counsel, entered a plea of Not Guilty to the subject
charges.

DECISION
The Respondent is found Not Guilty of all charges.

EVIDENCE
The Department's Case
The Department called Captain Ariana Donovan, Sergeant Alberto Martinez and
Sergeant Joseph Rinaldi as its witnesses.

Captain Ariana Donovan, a 21-year member of the Department, is currently


assigned to the Internal Affairs Bureau Command Center. Donovan testified that prior to
September 10, 2004, she neither had any interactions with the Respondent nor knew of
him. On September 10, 2004 at approximately 11:00 p.m., she began her tour as a Duty
Captain. At about midnight, Donovan responded to a call at 3194 Bronxwood Avenue in
the 47 Precinct. Upon arriving at the location,"Donovan met with the patrol supervisor of
the precinct, Sergeant Martinez. Donovan recalled that Martinez informed her he had
responded to a landlord/tenant dispute involving a member of service. Martinez
informed Donovan that there was an allegation that the Respondent, who was the tenant,
may have been unfit for duty due to alcohol consumption. After speaking to Martinez,

POLICE OFFICER DEREK MILLER

Donovan interviewed the tenant residing adjacent to the Respondent, Efrain Mercado; the
Respondent; and the landlord, Elliot Parisi.
Donovan went to the Respondent's apartment, which was right at the top of the
stairs. The door to the apartment was closed so she knocked. 'When the Respondent
asked who it was, she identified herself, at which point he opened the door. According to
Donovan, the Respondent was dressed, but his clothing was "disarrayed:" his shirt was
disheveled and the top button of his pants was unbuttoned. Donovan described the
Respondent as standing erect and she stated that she "didn't see him lose any gait."
In her conversation with the Respondent, Donovan explained to him her purpose
for being there. She stated that she questioned him about where he had gone that night;
what he did when he returned home; his dispute with Parisi; and the allegation that he
was unfit for duty. She recalled that the Respondent said that he went to a City Island
restaurant to have dinner. He also told her that he had been having ongoing issues with
Parisi, but she could not remember what those issues were.
Donovan testified that the Respondent denied having anything to drink and could
not recall what time he returned home from the restaurant. However, during their five
minute conversation, Donovan observed that the Respondent's "eyes were very glassy,
his speech was somewhat slurred" and he smelled of alcohol. Donovan estimated that
she stood within two feet of the Respondent during their conversation. She described the
smell on the Respondent's breath as "a heavy sweetness of alcohol" and added, "I would
compare it to something of a sugar type of liquor as opposed to a vodka type of liquor
that is a grain smell that appears medicated. It appeared that he was drinking something
of a sugar nature or something with a high content of maybe a colored syrup in it." She

POLICE OFFICER DEREK MILLER

noted that this smell would be consistent with a mixed drink.


Donovan described the Respondent's apartment as small, dark and sparsely
decorated. She said there was lighting, but she was not sure. Donovan stated that she did
not see a desk or any type of furniture nor did she see a library, books or stationary. By
the time Donovan had interviewed the Respondent, his Department Identification Card,
firearm and shield had already been confiscated by Martinez. After interviewing the
Respondent, Donovan concluded that he was unfit for duty based on her conversation
with the Respondent and the information given to her by Martinez. Donovan told the
Respondent that she was going to take him to the station house because she believed he
was unfit for duty. He was then placed in Martinez's patrol car and taken to the station
house. Donovan acknowledged that in her 21-year career with the Department this
incident was the first time that she had personally found an officer unfit for duty.
While the Respondent was en route to the station house, Donovan had a two or
three minute conversation with Parisi, who told her that his dispute with the Respondent
was not a big issue. He opined, however, that the Respondent was drinking more as a
form of relief since the death of his brother. Donovan admittedly did not ascertain when
the Respondent's brother had died.
On cross-examination, Donovan testified that Mercado told her that the
Respondent had blocked the driveway with his car but moved it when asked. Mercado
also told her that he believed the Respondent may have been intoxicated during their
interaction. She added that this information had been passed to Martinez, who
subsequently relayed it to her.
Donovan acknowledged that she knew there was a landlord/tenant dispute

POLICE OFFICER DEREK MILLER

between Parisi and the Respondent, but she did not think that Parisi, a former member of
service, would use the police to unlawfully evict the Respondent. She stated, "There
would be some courtesy." Nonetheless, she did not make any inquiries regarding the
matter. She explained that the Respondent had an opportunity to inform her, but he did
not.
Donovan testified that the Respondent could not recall what he did when he
returned home from City Island. She admitted, however, that it was possible that he
could have been asleep. Donovan also admitted that she could not remember if the
Respondent told her that he had two drinks. In concluding that the Respondent was unfit
for duty, Donovan cited her experience as a bartender while attending nursing school.
She explained that if someone had a drink at 4:15 p.m. and another one at 5:15 p.m., the
smell of alcohol on his breath at midnight would depend on whether he washed out his
mouth or drank something else. She further explained that if a person groomed himself
well by gargling and brushing his teeth, one might not smell the alcohol. She added,
however, that if that person had a cup of coffee before going to bed and the coffee had no
effect, you might be able to smell the alcohol in the caffeine. Conversely, drinking
several glasses of water might also "deteriorate" the smell. In addition, Donovan
explained that combining certain liquids in conjunction with alcohol could enhance the
smell. She acknowledged that Martinez did not tell her that he smelled alcohol on the
Respondent's breath.
For Donovan, unfit for duty is when an officer "may not be at a level of such high
intoxication which would immobilize him but would cause him maybe not to work a
hundred percent to his proper functions had he not ingested alcohol." She added, "There

POLICE OFFICER DEREK MILLER

are degrees of that." Donovan denied that it would be unusual for an officer who has
been determined to be unit for duty to retrieve a loaded firearm and turn it over to another
member of service. Donovan could not, however, make any determination on the manner
in which the Respondent turned over his firearm. Nonetheless, Donovan could not say if
she would have allowed the Respondent to go into a back bedroom and retrieve a loaded
gun to hand over to her once she determined he was unfit for duty. She admitted that she
did not know why Martinez permitted the Respondent to retrieve and turn over his gun
instead of doing it himself.
On redirect examination, Donovan testified that she specifically asked the
Respondent if he had any drinks and he said, "No." She asserted there was no ambiguity
in her question, nor was there any ambiguity in his answer.
On recross-examination, Donovan acknowledged that she did not speak to anyone
at the Seashore Restaurant, which the Respondent had attended earlier that evening.

Sergeant Alberto Martinez, a 14-year member of the Department, is assigned to


the 47 Precinct. On September 10, 2004, he was working a tour of 1450 x 2147 hours as
the patrol supervisor. At around 11:00 p.m., he received a message to call the station
house desk. When he called, he was told to respond to a landlord/tenant dispute at 3194
Bronxwood Avenue involving a retired member of service and the Respondent. Upon
arriving at the location, he was greeted by Parisi, who informed him that he was the
landlord and owner of the building as well as a retired member of service. Parisi also told
Martinez that one of his tenants was an active member of service with whom he had been
having a dispute. In addition, Parisi told him that the Respondent was intoxicated and

POLICE OFFICER DEREK MILLER

had not been paying his rent.


After speaking with Parisi, Martinez spoke to Mercado, who told him that he had
a run-in with the Respondent earlier that evening. Martinez testified that Mercado also
told him that the Respondent was intoxicated. Martinez then interviewed the
Respondent, whom he had never met before that day. Martinez recalled that when he
went to the Respondent's apartment there was a dog present. He asked the Respondent to
put the dog away so they could talk, but the Respondent contended that the dog was okay
and would not bother him; the Respondent complied after Martinez insisted.
When Martinez asked the Respondent about his problems with Parisi, the
Respondent replied that it did not concern him. Martinez then asked the Respondent to
tell him what happened that day and the Respondent again replied that it did not concern
him. During this conversation, Martinez stood outside of the door to the apartment while
the Respondent was in the doorway with the door halfway opened between them.
Martinez described the Respondent as "disheveled." "He seemed disheveled, his clothes
were disheveled, his zipper was open, his pants were laying down like showing his
underwear, his shirttail was through the zipper opening. He also had bloodshot eyes, his
eyes were also glassy and he slurred some of his words when he talked to me," recalled
Martinez.
Martinez testified that when he asked to see the Respondent's identification card,
the Respondent showed him the card, but held it a short distance away from him.
Martinez consequently reached out and asked the Respondent if he could see it, but the
Respondent waved no with the hand holding the identification card and then returned it to
his wallet. At that point, Martinez left the apartment building and called for Donovan.

POLICE OFFICER DEREK MILLER

Martinez testified that he had determined that the Respondent was unfit for duty before
he spoke to Donovan. He based his determination on the Respondent's intoxicated
appearance; his combative and arrogant demeanor; and his refusal to answer Martinez's
questions. In addition, the Respondent was not forthcoming with information.
Martinez informed Donovan that he received the call as a landlord/tenant dispute
involving a former and current member of service. He told her that he had interviewed
all parties concerned, including the Respondent, who seemed intoxicated and unfit for
duty. As a result, Donovan responded to the scene and conducted her own investigation.
Before she arrived, however, Martinez returned to the Respondent's apartment and
formally ordered him to turn over his identification card, shield and any firearms. After
the Respondent complied, Martinez ordered him not to leave the area and informed him
that the Duty Captain was on her way. Martinez recalled that Donovan arrived at the
location around midnight.
On cross-examination, Martinez testified that he had been called only once to
determine fitness for duty in the three years that he has been a Sergeant. In that case, the
police officer already had his identification, shield and firearms out on a counter in the
kitchen and asked for the Duty Captain himself In. this case, however, Martinez admitted
that he was not sure if the Respondent was intoxicated. Nevertheless, Martinez testified
that he felt safe enough to allow the Respondent to retrieve his loaded handgun and hand
it to him.
Recalling that it was 11:30 p.m. when he spoke with the Respondent, Martinez
acknowledged that it was possible for a person's clothes to be disarrayed when they are at
home. Martinez, however, did not ask the Respondent if he was sleeping, or if he had a

. POLICE OFFICER DEREK MILLER

medical condition. Martinez admittedly did not consider any other possibilities for the
Respondent's appearance besides intoxication. Martinez described the Respondent as
combative because he refused to answer any questions and did not initially hand him his
identification card when asked.
Martinez acknowledged that the landlord/tenant dispute between the Respondent
and Parisi was a civil matter. He explained that his duty in that situation is to tell the
parties involved to go to civil court. He added that his duties and responsibilities at the
scene of a landlord/tenant dispute also include hearing what the problem is; listening to
both sides; and attempting to assist them in any way. Martinez stated that the
Respondent, however, did not tell him what the dispute was about, nor did he explain that
this incident was about a blocked driveway.
Martinez acknowledged that he did not smell alcohol on the Respondent's breath
despite standing about two and a half feet away from him. He admitted that the
Respondent was compliant when he handed over his identification card, shield and
firearm.
Martinez recalled that Parisi told him that the Respondent was a good tenant for a
while, but his attitude changed when he had a death in his family. According to
Martinez, Parisi also stated that the Respondent appeared to be intoxicated more
frequently; stopped paying rent; and argued whenever he approached him.
Martinez acknowledged that as a supervisor he is required to complete a
Supervisor's Fitness for Duty Report, yet he admittedly did not complete the report until
two hours after the incident, when he was away from the scene; however, he denied
completing the report in consultation with anyone else working on the case.

POLICE OFFICER DEREK MILLER

10

When questioned by the Court, Martinez stated that his initial conversation with
the Respondent lasted somewhere between five and ten minutes.
On redirect examination, Martinez stated that he was familiar with Patrol Guide
Section 203-04 regarding fitness for duty. His understanding of the section is that a
police officer is designated unfit for duty if cannot perform his duties.

[Department Exhibit lA and 1B are the tape and transcript, respectively, of Efrain
Mercado's Official Department Interview. The interview was conducted by Sergeants
Rinaldi and Kelly, both of whom are assigned to the Bronx Investigations Unit. Mercado
stated that on the night in question he arrived home in his car sometime between 8:00
p.m.and 9:00 p.m. and found the Respondent's car blocking the entrance to the driveway
of the building where he lived. Mercado then went upstairs, knocked on the
Respondent's apartment door and asked him to move his vehicle, which he did. Mercado
added that Parisi had told him that the Respondent was not allowed to park in the
driveway anymore because they were having problems. Mercado therefore informed
Parisi when the Respondent subsequently pulled his truck into the driveway.
Mercado said that Parisi initially raised the possibility that the Respondent was
under the influence of alcohol. In addition, when Donovan interviewed Mercado that
night and asked him if he thought the Respondent was intoxicated, he said, "It's possible,
you know, based on the few seconds that I spoke with him, it's possible, but I don't know
that to be a fact. I wasn't one hundred percent sure." Although Mercado opined that the
Respondent seemed like he had been drinking, he acknowledged that he could have been
wrong insofar as he did not know the Respondent very well and they rarely saw each

POLICE OFFICER DEREK MILLER

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other. Mercado based his opinion on the fact that the Respondent stared at him when
Mercado asked him to move his car, and on the way the Respondent made a particular
comment, which Mercado could not really remember. Mercado believed that Parisi
asked him if the Respondent was drunk after he told Parisi about the Respondent.
Mercado answered that he was not certain, but it was possible based on the way the
Respondent looked and acted.
Mercado acknowledged that the Respondent did not give him any problems: he
came right down and moved his car. Mercado also acknowledged that he did not smell
alcohol on the Respondent.]

Rinaldi, of the Bronx Investigations Unit, was assigned to investigate the


allegations against the Respondent. During his investigation, Rinaldi learned that the
Respondent's brother died on September 11, 2001; however, Rinaldi admitted that he did
not independently confirm that information.
When questioned by the Court, Rinaldi stated that he did not know who provided
that information.
On cross-examination, Rinaldi admitted that he never asked the Respondent when
his brother passed away. Upon further questioning by the Court, Rinaldi said that he
could not recall if Donovan or Martinez gave him that information or if they were aware
of it at the time they responded to the scene of the incident.

The Respondent's Case


The Respondent called Elliot Parisi as a witness and testified in his own behalf.

POLICE OFFICER DEREK MILLER

12

Elliot Parisi is a retired detective from this Department. He is also the owner of
3194 Bronxwood Avenue, an apartment building, in the Bronx, New York. Parisi has
owned the building, where the Respondent is a tenant, for approximately four years. The
Respondent has been living in the building month to month since approximately 2002.
On the night of September 10, 2004, Parisi called the police after Mercado called and
informed him that the Respondent was blocking the driveway and he could not get in.
Before calling the police, Parisi told Mercado to speak to the Respondent; Mercado
replied that he tried to speak to the Respondent, who seemed intoxicated at the time.
Instead of going to go to the building to confront the Respondent, Parisi decided to call
the police and let them handle it. Parisi testified that Mercado did not tell him that the
Respondent had moved his car. However, when he arrived at the location, the car had
already been moved.
Parisi testified that he called the 47 Precinct to make the complaint and when he
did not get a response, he called 911 to ensure that the call would go through. He could
not recall with whom he spoke at the 47 Precinct, nor could he remember what he told the
911 operator.' He vaguely recalled that he complained about the driveway being blocked
by the Respondent, who would not move his car because he was intoxicated. Mercado
told Parisi that he believed the Respondent was intoxicated because he was slurring his
speech; leaning against the wall; and not responding to him.
Upon arriving at the location, Parisi did not speak to Mercado but to a sergeant
(Martinez). He told Martinez that the driveway had been blocked but that the car had
since been moved. According to Parisi, the police remained because the Respondent was
' Parisi was handed a copy of the SPRINT Report of the 911 call he made to help refresh
his recollection, but he was unable to remember any of it.

POLICE OFFICER DEREK MILLER

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allegedly intoxicated. Parisi acknowledged that he did not observe the Respondent nor
did he ask Mercado if the Respondent was intoxicated or not.
Parisi testified that he did not know who moved the car out of the driveway;
Mercado actually witnessed the car being moved. Parisi, however, believed the
Respondent moved his own vehicle. Parisi explained that the driveway leads to the
parking lot, for which the tenants in the building pay month to month, but the Respondent
had only paid for one month five months earlier and should not have been parking there.
Parisi could not remember the time frame of his call to the Police Department nor
what he said when he made the calls, but he recalled asking for a Duty Captain to respond
to the location because an intoxicated police officer was involved and he did not want to
get physically involved with someone who was armed with a weapon. Parisi admitted,
however, that he did not know if the Respondent was armed at the time and that neither
Mercado, nor Martinez, nor Donovan informed him that the Respondent was armed.
Although Parisi stated that "as a police officer you are usually armed with your weapon,"
he could not recall if he told the 911 operator that the Respondent might be armed.
Parisi testified that although Mercado told him that the Respondent appeared to be
intoxicated, they did not discuss whether Mercado was one hundred percent certain.
Parisi acknowledged that he did not know if the Respondent had a medical condition or if
he suffered from sleep deprivation. He also acknowledged that he did not know if
anyone made any such inquiry during the investigation.
Parisi stated that when he arrived, the Respondent's car was not parked in its
usual spot: it was in one of the two lanes in the driveway, but it was not pulled in all the
way. Parisi testified that he did not personally know Martinez, Donovan or the desk

POLICE OFFICER DEREK MILLER

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officer.

The Respondent, a ten-year member of the Department, is assigned to the 43


Precinct. On September 10, 2004, he worked a tour of 0705 x 1540 hours. The
Respondent recounted that after he got off duty, he went to the Seashore Restaurant on
City Island where he met two retired detectives whom he had met at this location on other
occasions. While at the restaurant, the Respondent ordered dinner and two drinks, which
he drank with his meal at approximately 4:15 p.m. and 5:15 p.m. At approximately 7:30
p.m., the Respondent left the restaurant and drove himself home, where he arrived home
around 8:00 p.m. Upon arriving home, the Respondent found the gate to the driveway
chained and secured with a different lock. As a result, he parked his vehicle in front of
the gate and went upstairs to his apartment. Prior to that evening, the Respondent had
access to the driveway and a key to the gate.
The Respondent acknowledged that other people used the driveway and that it
was common for the driveway to be blocked by others as often as four times a week He
explained that someone who wants access to the blocked driveway will either wait until
the person whose vehicle is blocking it comes down or knock on that person's door and
ask that the vehicle be moved.
The Respondent recalled that after returning to his apartment he worked on a
school paper on his computer. At the time, he was studying business for his bachelor's
degree at Manhattan College. The Respondent testified that he did nothing else besides
schoolwork when he returned home. He asserted that he did not have anything else to eat
or drink, nor did he take any medication.

POLICE OFFICER DEREK MILLER

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According to the Respondent, Mercado knocked on his door sometime around


8:00 p.m. or 9:00 p.m. and asked him to move his vehicle. Dressed in a tee shirt and
jeans, the Respondent stopped to put on his sneakers before going downstairs to move his
vehicle. When the Respondent reached the driveway, Mercado opened the gate and the
Respondent pulled his vehicle into his usual spot. At that time, Mercado informed the
Respondent that Parisi did not want him parking in the driveway. Mercado added that he
received a letter from Parisi to that effect; the Respondent told Mercado that he never
received a letter from Parisi revoking his parking privileges. The Respondent testified
that he was neither combative nor difficult during his conversation with Mercado.
Afterward, the Respondent returned to his apartment and his schoolwork.
One or two hours later, Martinez knocked on the Respondent's door. The
Respondent had his dog with him when he opened the door. In response to Martinez'
request that he put the dog away, the Respondent told Martinez that the dog was friendly
and would not harm him; nevertheless, he closed the door and complied, then opened it
and spoke with Martinez, who asked if there was a problem with the car being parked in
the driveway. The Respondent replied that it was a civil matter and he should not be
there. Martinez then asked to see the Respondent's identification card without explaining
why. Whereupon the Respondent removed his wallet from his front pants pocket, took
out his identification card, and showed it to Martinez. The Respondent estimated that
Martinez was standing at least a foot and a half away from him outside of the doorway to
the apartment. After showing Martinez his identification card, the Respondent put it back
in his pocket because he did not see any reason why Martinez needed to look at it any
further insofar as his identity had already been established.

POLICE OFFICER DEREK MILLER

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According to the Respondent, Martinez became a little annoyed at this point and
asked to see it again, but the Respondent told him "no." Martinez then informed him that
he would have to notify the Duty Captain. The Respondent remarked, "Then [you] have
to notify the Duty Captain" and returned to his desk. The Respondent testified that
Martinez did not accuse him of being unfit for duty or impaired, nor did Martinez
mention anything about alcohol or being intoxicated.
When Martinez asked for the Respondent's identification card a second time, he
also asked for his shield and firearm. The Respondent stated that he went unescorted to
the rear bedroom to retrieve his firearm, which was fully loaded and holstered, and
handed it over to Martinez, who was standing outside of the apartment door in the
hallway. After which, the Respondent returned to his desk and continued to do his
schoolwork.
The Respondent recalled that about an hour or so later, Donovan arrived at his
apartment after speaking to Mercado. He described their conversation as "polite and
courteous." The Respondent explained to Donovan that the situation between him and
Parisi was a landlord/tenant dispute. He also told her about finding the gate locked upon
coming home. The Respondent, however, could not exactly remember the conversation
he had with Donovan, who indicated that he needed to go to the 47 Precinct. She asked
him to get dressed and he complied. The Respondent stated that he was not troublesome
or combative, nor did he engage in any behavior that could be construed as arrogant. In
addition, he was neither handcuffed nor restrained.
According to the Respondent, Donovan stood less than a foot away when she
interviewed him in his apartment, but she never told him that she smelled alcohol on his

POLICE OFFICER DEREK MILLER

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breath. She also did not tell him that she believed he was unfit for duty.
The Respondent testified that Donovan did not explain to him why she was taking
him to the 47th Precinct, nor did she explain under what authority she was ordering him to
go. The Respondent remarked that he was shocked that a sergeant and a Duty Captain
would respond to a landlord/tenant dispute.
When the Respondent arrived at the precinct, he was placed in a room where he
stayed for a couple of hours before a delegate arrived, after which he was taken into
another room and told to report back to a different precinct on Monday. The Respondent
stated that no one from the Department indicated that he would be arrested for driving
while intoxicated or impaired.
The Respondent reiterated that he did not have any drinks while he was inside his
apartment and that he had only two drinks at the restaurant. He acknowledged that
Martinez interviewed him closer in time to when he left the restaurant.
On cross-examination, the Respondent stated that he did not remember what he
drank at the restaurant, but he recalled it was a mixed drink and that each of the other
detectives with whom he was having dinner had one drink apiece. The Respondent was
certain that he had the second drink at 5:15 p.m. because he was wearing a watch that he
had been looking at periodically throughout the night. He added that he knew the time of
his second drink because he is a cop and he "remember[s] these things." He admitted,
however, that he could not remember what he was studying that night.
The Respondent denied that his dispute with Parisi was over non-payment of rent.
He explained that when he told Martinez and Donovan that his dispute with Parisi was a
civil matter, he was merely advising them of the situation. However, he stated

POLICE OFFICER DEREK MILLER

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hypothetically that if he had responded to the scene of a landlord/tenant dispute and was
told by the landlord that it was a civil matter, he would have walked away.
On redirect examination, the Respondent testified that he was taught at the Police
Academy that during a landlord/tenant dispute his duties are to keep the peace and refer
the parties to Civil Court. He denied that he was disputing with Parisi on the night in
question because Parisi was not present at the location. He reiterated that he moved his
car when Mercado asked him to do so. To his knowledge, no investigator from the
Department called the Seashore Restaurant to establish how many drinks he had that
night. He also stated that no one ever asked him: if he had a medical condition that
could have accounted for his appearance that day; what he was doing in the apartment
that night; if he was feeling depressed about the upcoming anniversary of his brother's
death; if his appearance could be attributed to his brother's death; or if he was sleepy,
tired or suffering from sleep deprivation.
The Respondent asserted that no one saw him drinking or impaired and that he did
not drive his vehicle while he was intoxicated or impaired. He stated that he left the
restaurant five hours before Donovan responded to the location, yet she was the only
person who smelled alcohol on his breath.
On recross-examination, the Respondent agreed that it is his responsibility when
responding to a landlord/tenant dispute to initially determine whether or not there is a
need to keep the peace. "Landlord/tenant disputes tend to be a little bit more hostile,
there is a little bit more emotion. In order to calm the emotion down you have to sit
down and talk to both sides," he explained. The Respondent contended that when a
police officer, like himself, is involved "there is certainly no need to conduct an

POLICE OFFICER DEREK MILLER

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investigation or to look at a situation because the parties are hostile." He added that
because he was not hostile, there was even less reason to investigate. The Respondent
agreed, however, that Martinez was reasonable in the performance of his duties.
The Respondent clarified that his brother died in 1998 and that he was not feeling
sad about it on the night in question.

FINDINGS AND ANALYSIS


The Respondent is charged with wrongfully operating a motor vehicle while
intoxicated; wrongfully operating a motor vehicle while his ability was impaired by an
intoxicant; and wrongfully consuming an intoxicant to the extent that he was unfit for
duty.
I find the Respondent Not Guilty. In most, if not all, driving while intoxicated or
impaired cases, the Respondent is either observed operating the vehicle or immediately
thereafter. Here, there was no witness who observed the Respondent in a car, let alone
driving while intoxicated or impaired, raising a significant issue of fact for such charges.2
Instead, the Department predicated its case on a theory that if the Respondent was unfit
for duty at the time he was visited by Sergeant Martinez and Captain Donovan, as they
attested, then a fortiori he was intoxicated or impaired when he admittedly operated his
vehicle earlier in the evening. However, I was not convinced that the Respondent was
unfit for duty, the conclusions of Donovan and Martinez notwithstanding, nor intoxicated

The crime of driving while intoxicated requires a showing that the defendant is
incapable of employing the physical and mental abilities which she/he is expected to
possess in order to operate a vehicle as a responsible and prudent driver, while the lesser
offense of driving while impaired requires only a showing that the defendant's ability to
operate a vehicle was impaired to some extent. People v. McNamara, 269 A.D.2d 544 (2d
Dep't 2000).
2

POLICE OFFICER DEREK MILLER

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or impaired by extrapolation.
Martinez and Donovan separately interviewed the Respondent relatively close in
time and in close proximity to the Respondent, yet Donovan stated that she smelled
alcohol on the Respondent, while Martinez did not. Indeed, Martinez conceded that he
was not sure if the Respondent was intoxicated, which may explain why he permitted the
Respondent to retrieve his loaded firearm and hand it over to him. I also discounted
Martinez' conclusion that the Respondent was unfit because Martinez lacked experience
making that assessment: only once before had he been called upon to make such a
determination. In addition, the indicia of unfitness cited by Martinez were
unsubstantiated and superficial. For example, Martinez apparently based his conclusion
in part on the Respondent's "disheveled" appearance, e.g., the zipper of his pants was
open, his pants were lying low on his waist revealing his underwear, and his shirttail was
visible through the zipper opening. Martinez added that the Respondent's eyes were
bloodshot and glassy and he slurred some of his words. However, Martinez conceded
that given the late hour, it would not be unreasonable for a person at home to appear in
that manner. Further, Martinez admittedly did not ask the Respondent if he had been
sleeping or had a medical condition, nor did he consider those possibilities. Moreover,
Martinez's conclusion may have been influenced by his conversation with the
Respondent's landlord, Parisi, and a tenant, Mercado, both of whom told Martinez that
the Respondent was intoxicated, then equivocated and backed away from their specious
opinions when formally interviewed thereafter. For instance, although Mercado opined
that the Respondent seemed like he had been drinking, the bases for his opinion were
vague and unsubstantial: the Respondent stared at Mercado when the latter asked him to

POLICE OFFICER DEREK MILLER

21

move his car: and the way the Respondent made a particular comment, which Mercado
could not remember. As for Parisi, he acknowledged that he did not observe the
Respondent nor did he ask Mercado if the Respondent was intoxicated or not. Parisi also
testified that although Mercado told him that the Respondent appeared to be intoxicated,
they did not discuss whether Mercado was one hundred percent certain. Under the
circumstances, it is possible that Parisi's call to the police was motivated by the
underlining landlord/tenant problems he was having with the Respondent, and not on the
Respondent's purported intoxicated condition. Martinez's acknowledgment that the
Respondent was compliant when he handed over his identification card, shield, and
firearm further undermined his determination that the Respondent was unfit. Conversely,
Martinez's description of the Respondent's demeanor as combative and arrogant -- a
contributing factor in his determination that the Respondent wasAinfit (which was not
mentioned by Donovan) -- is not rcescarily indicative of unfitness- I 1121cldat the
Respondent manifested this demeanor at trial, at which time he was presumably fit for
duty. I believe the Respondent's arrogance and combativeness could have been
attributed not to alcohol but to his contention that his landlord/tenant zoblems with
Parisi were civil in nature and therefore did not concern Martinez.
Although Donovan, who interviewed the Respondent around midnight, was
adamant that she smelled alcohol on the Respondent's breath, her determination that he
was unfit was diminished by her acknowledgment that the Respondent moved his vehicle
when asked by Mercado; her concession that the Respondent could have been asleep
prior to her arrival at his apartment (which would have accounted for his disheveled
appearance); her explanation that combining certain liquids with alcohol could enhance

POLICE OFFICER DEREK MILLER

22

the smell of alcohol; and her failure to contact the Seashore Restaurant, which the
Respondent had attended earlier that evening, to ascertain his alcohol consumption.
Significantly, she described the Respondent as standing erect and recalled that she "didn't
see him lose any gait," i.e., he was able to stand and walk normally. The fact that the
Respondent admittedly had two drinks several hours before he spoke to Donovan would
account for why she smelled an alcoholic beverage, but would still not necessarily render
him unfit for duty. Rather, the Respondent's responses to Martinez and Donovan
suggested the opposite insofar as it appeared that he was fully oriented as to time and
place and could fully account for his whereabouts that evening; indeed there was no
testimony that he lacked coordination, orientation or coherence.
Accordingly, because I am doubtful that the Respondent was unfit for duty at the
time he was interviewed by responding members of the service, I find there is insufficient
evidence in the record to prove that he was incapable of employing the physical and
mental abilities which he is expected to have in order to operate a vehicle as a reasonable
and prudent driver. See Disciplinary Case Nos. 69576/95 and 74109/99.
Respectfully submitted,

PROVED
0 6 2op

(.0/

YMO W. KELLY

OLICE C'MMISSIO

ichael D. Sarner
Assistant eputy Commissioner - Trials

DISPOSITION OF CHARGES

PD 468-142A (7-93)-h2

CASE NO.

80602/05
BOOK & PAGE NO.
PERSONNEL ORDER NO.
SPECIFICATIONS AGAINST
RANK/SURNAME,

FIRST

M.I.

Police Officer Mil er, Derek


SHIELD NO.

COMMAND

43 Precinct

TAX REGISTR

SOCIAL SECU

DATE APPOINTED

June 30, 1995

RANK/NAME OF COMPLAINANT

COMMAND

Captain Paul Rayward


DATE OUORGES
ary ), 2005

DATE TRIAL CQMM N ECt


July
205

43 Precinct
DATE TRIAL CONCLUDED

July 5, 2005

TRIAL COMMISSIONER

Honorable Michael D. Sarner


SPECIFICATIONS

1. Said Police Officer Derek Miller, assigned to the


Bronx
Court Section, while off duty, on or about Septembe
r 10,
2004, at approximately 2230 hours, in the confines of
the 49
Precinct, Bronx County, did wrongfully operate a moto
r
vehicle while intoxicated.
2. Said Police Officer Derek Miller, assigned to the
Bronx
Court Section, while off duty, on or about Septembe
r 10,
2004, at approximately 2230 hours, in the confines of
the 49
Precinct, Bronx County, did wrongfully operate a moto
r
vehicle while his ability was impaired by an intoxicant
.
3. Said Police Officer Derek Miller, assigned to the
Bronx
Court Section, while off duty, on or about Septembe
r 11,
2004, in the confines of the 49 Precinct, Bronx Coun
ty, did
wrongfully consume an intoxicant to the extent that
said
officer was unfit for duty.

Reviewed by Deputy Commissioner of Trials

DEPUTY COMMISSIONER
Police C missioner's Approval:
Approved

Disapproved

El

Other Action (Describe)

DISPOSITION

NOT GUILTY

NOT GUILTY

NOT GUILTY

RECOMMENDED PENALTY
PLEA 0 TRIAL al

It is recommended that the


Respondent be found Not Guilty.