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Chapter II - Subchapter D

§ 2-44 Trial Continuances

A relaxed standard for applications exists for trial continuances to produce witness testimony in vehicle retention cases. Police Dep't v. Burnett, OATH Index No. 1363/04, mem. dec. (Mar. 11, 2004), aff'd, Property Clerk v. Burnett, Index No. 04/400955 (N.Y. Sup. Ct. July 19, 2004) (Schulman, J.), aff'd, 22 A.D.3d 201 (1st Dep't 2005).

Continuance Granted

Over respondent’s objection, ALJ granted the Department’s request at the close of respondent’s case to submit rebuttal evidence as to reasonable suspicion for the stop leading to the arrest. Upon reflection, however, ALJ agreed with respondent that the Department’s showing of good cause was insufficient and that the Department should not have been granted an opportunity to supplement its case in chief after the hearing. Nonetheless, because the rebuttal evidence in the form of an affidavit from the arresting officer was already submitted with the ALJ’s permission, the ALJ assessed the extent of its probative value and weight and found the affidavit unconvincing. Police Dep’t v. Stephenson, OATH Index No. 2195/07, mem. dec. (June 14, 2007).

ALJ granted the Department’s request for a continuance to submit rebuttal evidence in affidavit form in response to respondent’s two motions to dismiss, which the Department only learned of shortly before and during the hearing. Police Dep’t v. Cardona, OATH Index No. 1476/06, mem. dec. (Mar. 29, 2006).

Continuance Denied

Where the Department sought permission to submit an affidavit of the arresting officer to augment the factual record, ALJ denied request on the basis that this sort of evidence was not rebuttal evidence under OATH’s Krimstock rules. The Department could and should have anticipated the need for such proof before the scheduled hearing as part of its case-in-chief and had not shown good cause to grant a continuance to develop new evidence. Moreover, respondent would have no opportunity to meet a late submission of new material in any such affidavit or to cross-examine the officer about it. Police Dep’t v. Pedalino, OATH Index No. 2693/08, mem. dec. (July 2, 2008).

Continuance not requested

In cases where the Department did not satisfy its burden of proof, ALJ noted that the Department opted not to present rebuttal evidence or request a continuance to do so. Police Dep’t v. Lavia, OATH Index No. 1037/12, mem. dec. (Jan. 13, 2012); Police Dep’t v. Montes, OATH Index No. 1372/06, mem. dec. (Mar. 14, 2006); Police Dep’t v. Ugweches, OATH Index No. 2117/05, mem. dec. (June 15, 2005); Police Dep’t v. Verdugo, OATH Index No. 629/05, mem. dec. (Oct. 6, 2004); Police Dep’t v. Fung, OATH Index No.1195/05, mem dec. (Jan. 27, 2004).