Bike Sting Operation Criticized by Ed Koch and Legal Aid Lawyers

In a story in the July 27th edition of The New York Times, Legal Aid Manhattan Criminal Defense lawyers Jerrold Berman and Melissa Kaplan are quoted about a sting operation in which bicycle deliverymen were set up by police. In Tuesday's New York Times, former Mayor Edward Koch indicates his outrage at police officers arresting bicycle deliverymen in a sting operation by offering them stolen bikes at discount prices and his agreement with Legal Aid lawyer Jerrold Berman who was quoted in the July 27th article as saying, "What they're really doing is testing your moral fiber."

The New York Times
Outraged by Police Sting
August 2, 2011

To the Editor:

I was truly outraged by “Bike Sting Operation Draws Arrests, and Criticism” (news article, July 28). New York City police officers arrested bicycle deliverymen in a sting operation offering them stolen bikes at a substantial discount.

A Legal Aid lawyer quoted, Jerrold Berman, was right in his comment, “What they’re really doing is testing your moral fiber.” I have no doubt that a significant number of middle-class people, if offered merchandise like a TV set and told that it was cheap because it had “fallen off a truck,” would fail the integrity test.

While the sting is not entrapment, and if pursued in Criminal Court will probably end in a conviction, is it fair and something New Yorkers or our Police Department should be proud of? My answer is a resounding no.

I am especially outraged because people with great wealth were essentially allowed to steal from our citizens, causing the value of 401(k) plans to plummet and homes to be foreclosed, yet they are not pursued criminally. It would be shameful if bike deliverymen were punished criminally in this matter.

New York, July 28, 2011
The writer is the former mayor of New York.

The New York Times
Bike Sting Operation Draws Arrests, and Criticism
July 27, 2011
By Joseph Goldstein

Last month, police officers in the East Village tried out a sting operation specifically aimed at bicycle deliverymen, who they believe often ride stolen bikes. A plainclothes officer wheeled a black Trek bicycle through the neighborhood, approaching deliverymen with a tempting offer.

“I have a stolen bicycle — do you want to buy it for $40?” Police Officer Alistair Bascom asked one deliveryman in front of S’Mac, a restaurant on East 12th Street, according to the police report from the resulting arrest.

In at least three instances, deliverymen took the bait, each agreeing to buy the bicycle, according to criminal complaints. Each was promptly arrested and charged with attempted criminal possession of stolen property.

The police have long used decoys to flush out street criminals. Undercover officers have played the role of drunks and tourists to catch would-be muggers. Police officers still often place a purse or a shopping bag in a public place, and wait nearby to arrest those who take it.

The most recent sting was developed in response to a recent surge in bike thefts in the East Village, the Police Department’s chief spokesman, Paul J. Browne, said. This year, 56 bicycle thefts had been reported by early this month in the Ninth Precinct, which covers the neighborhood, Mr. Browne said. Four of the thefts involved bicycles valued at more than $1,000.

Critics say the bicycle sting is misdirected because the police are apparently focusing on deliverymen who individually have done nothing to arouse any suspicion of wrongdoing. The deliverymen, their lawyers say, became entangled with the law only as a result of the Police Department’s intervention.

“What they’re really doing is testing your moral fiber,” said Jerrold Berman, a Legal Aid lawyer for one of the men.

This is not the first use of undercover officers in the Police Department’s efforts to curb the sale of stolen bicycles. Last year, the authorities temporarily closed a bike shop on East Sixth Street after store workers bought several bikes from undercover officers who indicated that the bikes were stolen, the police said.

Since then the police have tried to repeat the operation at other bike shops, but “nobody went for the bait,” Mr. Browne said.

Police attention shifted after officers heard from bicycle riders who expressed “suspicion that messengers and deliverymen” had bought bicycles directly from thieves, Mr. Browne said.

Mr. Browne said the operation was conducted in early June, and allowed that it could be brought back. “The command addresses conditions as they arise, but it’s not going to show its hand in advance,” he said.

In one of the three recent cases, Officer Bascom, working under cover, encountered Fredy Lopez-Velazquez, 31, as he returned to S’Mac from a delivery. Mr. Lopez-Velazquez said he agreed to buy the bike from the officer because the bike “was better” than his own and because he was able to bargain him down to $20 from $40.

Mr. Lopez-Velazquez, a slight man with a bushy ponytail who speaks limited English, disputes whether Officer Bascom ever described the bike as stolen.

“He didn’t say it was stolen,” Mr. Lopez-Velazquez said. “He just said, ‘Do you want a bike?’ ”

Of his arrest, he said, “I feel it wasn’t fair.”

The same night, another sting operation led to the arrest of Ricardo Morales-Diaz, then a deliveryman for Haveli, an Indian restaurant on Second Avenue.

“He’s just working and doing his job and abiding by the laws of New York, and the police sought him out to try to set him up,” said Melissa Kaplan, a Legal Aid lawyer who represents Mr. Morales-Diaz.

Legal experts said the arrested deliverymen could argue that the police had entrapped them, although entrapment defenses face a high hurdle. Under state law, for an entrapment defense to succeed, the defendants have to show that the police “induced or encouraged” them to commit a crime and that they were not predisposed to commit that crime.

“Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment,” the law states.

When the Police Department singles out people at random in stolen property stings, prosecutors have sometimes had difficulty proving criminal intent. In 2007, the office of the Manhattan district attorney warned the Police Department about flaws in Operation Lucky Bag, which involved planting an unattended purse or shopping bag and arresting whoever took it.

Prosecutors cautioned that merely picking up the bag and leaving the location did not provide grounds for arrest, because the person may intend to find the rightful owner later. The Police Department began instructing officers to look for further evidence of criminal intent, like rifling through the bag and removing valuables, or lying to the police about the bag’s contents.

In the bike sting cases, Mr. Browne, the police spokesman, said that the deliverymen understood the illegal nature of the transaction. “It was made crystal clear to the subjects involved they were purchasing stolen bikes,” he said. “They had no difficulty understanding that was the deal.”

For Mr. Lopez-Velazquez, an undocumented immigrant from Puebla, Mexico, being arrested has been a traumatic experience.

“I don’t know if they are going to send me back to Mexico,” he said.

Mr. Lopez-Velazquez recently asked his manager, Jose Aguirre, if he could give up delivery work and take a job in the kitchen to minimize the risk of encountering the police, Mr. Aguirre said.

“He told me he doesn’t feel comfortable out there,” Mr. Aguirre said.

About a week after Mr. Lopez-Velazquez was arrested, his own bicycle, a clunker, was stolen from the bike rack in front of S’Mac, he said.

He said he did not go to the police to file a report.