An NYPD commissioner, in response to a question at a City Council hearing Wednesday, said cops do not use the nuisance abatement law to seek closures of businesses or homes based solely on the work of confidential informants.
The Daily News begs to differ.
During a hearing on Wednesday to consider 13 bills that would overhaul the decades-old nuisance abatement law, Councilman Ritchie Torres (D-Bronx) asked Deputy Commissioner Lawrence Byrne, the head of legal matters for the NYPD, what percentage of the NYPD’s cases were based solely on confidential informant work.
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“There’s no nuisance abatement cases based exclusively on confidential informants,” Byrne responded.
City Council introduced the bills in response to an investigation by the Daily News and ProPublica that reviewed 1,162 cases filed during an 18-month period that sought closures of businesses and homes the NYPD says were being used illegally — including some cases that only mentioned purchases of drugs or gambling slips by confidential informants.
Byrne called this reporting “fiction” at the hearing.
One bill would amend the law to require that an officer personally witness at least one of instance of drug sales in order to bring a nuisance case.
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“The exclusive use of confidential informants is open to abuse; it’s manipulable,” Torres said. “I have concerns about it and that’s why the council is legislating to address the over-reliance on confidential informants.”
When The News attempted to follow up with Byrne after the hearing, he said, “There is no instance you can point to where a nuisance abatement action was brought or ordered solely on the basis of activities of confidential informants. It’s flat-out wrong,” then abruptly walked away.
NYPD officials did not respond when The News followed up by emailing four nuisance abatement cases that, in fact, only cited work by confidential informants.
When The News sent these cases to Torres, he said he found Byrne’s statements to be “misleading and disingenuous.”
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One of the four cases had just gone to trial a few months ago — an exceedingly rare occurrence for a nuisance case — and involves the XXX Barber Shop on Webster Avenue in the Bronx, which happens to be in Torres’ district.
Sgt. Herminio Baez of the 48th Precinct claims in nuisance abatement filings that he witnessed a confidential informant enter the barber shop, then return with “alleged marijuana” on Feb. 12 and 13, and return with “alleged cocaine” on Feb. 15. The complaint does not mention a search warrant or arrest at the location.
On Feb. 19, the NYPD filed a civil court request for an ex parte order closing the location while they proceed with a nuisance abatement case. The judge denied the NYPD’s request to surprise the barber shop owners with a closing order, but allowed the case to proceed, court filings say.
The case went to trial in August. Bronx Supreme Court Judge Doris Gonzalez ruled against the NYPD the following month, based on “the failure of the City to present the confidential informant to testify to corroborate the allegations,” making its evidence “insufficient” to prove a public nuisance.
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The owner and several of the workers testified they were unaware of drug sales at the barber shop, and suggested there’s another entrance through a neighboring bodega where the confidential informant could have gotten the drugs.
NYPD attorney Antony Anisman said at the start of the trial that the cops also searched the barber shop on Feb. 19, the same day they served the business with the nuisance abatement action, and arrested three people for misdemeanor drug possession and weapon possession. All three, including the owner, Alberto Mendez, 41, were given adjournments in contemplation of dismissal by the judge, meaning their charges would be dropped if they stay out of trouble for six months, court filings say.
Anisman told the judge he “can’t explain why” this information wasn’t included in the nuisance abatement filings.
“They wanted to settle before the trial. They said if I moved they would drop the charges,” Mendez told The News as he trimmed a man’s hair in his four-chaired shop. “I said no. I want to go straight to court. We had done nothing. I had already paid a lot of rent to be here.”
He claimed the judge dismissed the criminal charges against them because there was insufficient evidence. “They said they found drugs and weapons,” he said. “They found three knives still in the box. I bought them at a flea market. They are collectible. There were no drugs.”
Mendez filed a complaint against Baez with the Civilian Complaint Review Board over the search. On Sept. 15, the board substantiated Mendez’s complaint that Baez failed to show him the search warrant, as required by police procedure, according to documents provided to The News.
Mendez’ attorney, Peter Frankel, told The News the NYPD did, in fact, obtain a criminal search warrant.
But they never produced the confidential informant at the nuisance abatement trial. “I think their main reason is that they claim there was a relationship of some sort between Mr. Mendez and the informant,” Frankel said.
Byrne testified during the City Council hearing that the fact nuisance abatement cases generally cite the execution of a search warrant indicates the confidential informant claims have already been vetted by a criminal court judge.
The other three cases The News identified citing only work by confidential informants all involved residences. One cited drug sales that allegedly took place in Queens in 2013. The other two cited drug sales that allegedly took place in the Bronx in 2012.
As written, the nuisance abatement law does not require an arrest or conviction in order to bring a case. Byrne testified that there are many legitimate reasons why someone who is guilty might not get convicted in criminal court, where the standard of proof is higher. For example, sometimes the police conduct a search warrant and the targeted individual ends up not being home, but they could still move to close the location in civil court, providing relief to the neighbors. “There never has been and never should be a requirement for a conviction in a nuisance abatement action,” he said.
Sources told The News that the council will be reviewing Byrne’s testimony in light of the four cases, but that it’s unlikely he would face any repercussions if it’s determined he was, in fact, being misleading.
Additional reporting by Kerry Burke
