CPLR §7803 Misconduct Charges: Abuse of Discretion Defense

QUESTIONS PRESENTED

1. Whether it was abuse of discretion pursuant to CPLR §7803(3) for the NYPD to prosecute the Petitioner-Appellant for allegedly causing “annoyance or alarm” to his intimate partner.
2. Whether the NYPD finding that Petitioner-Appellant caused “annoyance or alarm” to his intimate partner is supported by substantial evidence as required by CPLR §7803(4).
3. Whether the NYPD finding that Petitioner-Appellant engaged in a verbal and physical altercation with his intimate partner causing injury is supported by substantial evidence as required by CPLR §7803(4).
4. Whether the NYPD finding that Petitioner-Appellant “wrongfully caused inaccurate entries in … Police Department records about the facts leading to an arrest,” and “wrongfully caused the arrest of an individual” is supported by substantial evidence as required by CPLR §7803(4).
5. Whether the decision to terminate Petitioner-Appellant’s employment was an abuse of discretion pursuant to CPLR §7803(3).

NATURE OF THE CASE

This is an Article 78 Special Proceeding seeking a determination of whether the findings of the New York Police Department (“Department” or “NYPD”), after a hearing, that Petitioner-Appellant engaged in acts of misconduct, are an abuse of discretion pursuant to CPLR §7803(3), or are supported by substantial evidence pursuant to CPLR §7803(4).  Second, whether the termination of Petitioner-Appellant’s employment by the Police Commissioner (“PC”) of the NYPD based upon the acts of misconduct that Petitioner-Appellant either pled guilty to or was properly found guilty of constitutes an abuse of discretion pursuant to CPLR §7803(3).

Petitioner-Appellant was charged by the Department in three (3) separate sets of Charges and Specifications (“Charges”), two of which stemmed from an intimate relationship he had with a woman who did not testify at his Hearing (“Complainant”), and a third which stemmed from interactions he had with members of the public while working an “off-duty” overtime detail.

In lieu of sworn witness testimony from the Complainant for the Charges stemming from Petitioner-Appellant’s intimate relationship, the Deputy Commissioner of Trials (“DCT”) who presided over Petitioner-Appellant’s Hearing (Hearing”), and by extension the PC, relied upon Body Worn Camera (“BWC”) footage obtained by officers who interviewed Complainant at the home she shared with the Petitioner-Appellant.

Of the Charges involving Petitioner-Appellant’s former intimate partner, the first, under Case No. 2020-22445 (Exhibit A), where it was determined that the Petitioner-Appellant “caused annoyance or alarm to his ex-girlfriend,” even if true, was purely a personal matter.  It was an abuse of discretion to prosecute it pursuant CPLR §7803(3), and the evidence that it constitutes “conduct prejudicial to the good order, efficiency or discipline of the Department” does not meet the level of substantial evidence required by CPLR §7803(4).

As to the second Charge involving Petitioner-Appellant’s former intimate partner, under Case No. 2021-23895 (Exhibit A), in which it was determined that Petitioner-Appellant “engaged in a verbal and physical altercation with an individual known to the Department causing an injury,” the evidence provided by the only witness to the alleged incident, Petitioner-Appellant’s former intimate partner, does not meet the substantial evidence standard as required by CPLR §7803(4) because, for numerous reasons, the intimate partner is not credible.

As to the third and fourth Charges, under Case No. 2021-23062 (Exhibit A)in which it was determined that Petitioner-Appellant “wrongfully caused inaccurate entries in Department or Port Authority Police Department records about the facts leading to an arrest,” and “wrongfully caused the arrest of an individual known to the Department for Assault in the Third Degree when said individual had not committed said crime,” for the reasons that will follow, the evidence relied upon by the Department in rendering said determinations does not meet the level of substantial evidence required by CPLR §7803(4).

Given that the termination of Petitioner-Appellant’s employment rests upon the combined findings of guilt for all of the Charges above in addition to others which he either pled guilty to or does not contest the findings for, once it has been determined that Petitioner-Appellant is not guilty of those Charges set forth above, Petitioner-Appellant’s continued termination from the Department will clearly constitute an abuse of discretion as to the measure or mode of penalty pursuant to CPLR §7803(3).  Finally, even if Petitioner-Appellant is found to be guilty of all of the Charges set forth above, Petitioner-Appellant’s continued termination from the Department will nonetheless constitute an abuse of discretion as to the measure or mode of penalty pursuant to CPLR §7803(3).

STATEMENT OF ESSENTIAL FACTS

The Parties

Petitioner-Appellant was a Police Officer with the NYPD at all times pertinent to this proceeding.  The first Respondent, The City of New York, was Petitioner-Appellant’s public employer at all times pertinent to this proceeding.  The second Respondent, the Hon. Edward A. Caban, is the Police Commissioner (“P.C.”) of the City of New York at the time of the filing of this petition and was the P.C. who effectuated the termination of Petitioner-Appellant’s employment.  The third Respondent, the Hon. Rosemarie Maldonado, was the Deputy Commissioner of Trials (D.C.T.) who presided over the judicial or quasi-judicial hearing that resulted in the Report and Recommendation (“R&R”, Exhibit B) that was relied upon by the P.C. to terminate the Petitioner-Appellant’s employment and was the author of said R&R. (The three Respondents are collectively “Respondent-Respondents”).

Petitioner-Appellant was appointed to the Department on July 2, 2001.  Over the course of his 20-year career Petitioner-Appellant was an active police officer who made numerous arrests and provided excellent community service without incurring complaints for excessive force, abuse of authority, or even discourtesy.

In 2013 Petitioner-Appellant was divorced and found himself struggling to meet his child support obligation for three children as well as his own living expenses.  In 2015 Petitioner-Appellant met the woman who is referred to as the “ex-girlfriend” in Case No. 2020-22445, “an individual known to the Department” in Case No. 2021-23895, and as the “Complainant” (henceforth “Complainant”) in the DCT’s R&R (Exhibit B).  From 2015 through 2020, Petitioner-Appellant engaged in a sporadically intimate relationship with the Complainant, however the two did not cohabitate.

The Circumstances That Led To

Case No. 2020-22445

Which Occurred in March of 2020

In her R&R to the PC, DCT Maldonado wrote (Exhibit B, pages 14-15):

In March 2020 Respondent was hoping to reconcile with Complainant (Exhibit D, Page 232-33). At trial, Respondent admitted that on March 8, 2020, he made an unauthorized computer check related to Complainant, as alleged in Specification 2. (Exhibit D, Page 237)

On March 10, 2020, Respondent went to Complainant’s home to discuss their “future.” He admitted that this was the first time he had surprised her at her residence. He entered the apartment building without Complainant’s consent and wrote the following message on a hallway wall near her door:

“Hi []! I was here.”

He then texted Complainant asking whether she had seen his written message. (Exhibits F1 & F2). Respondent also forwarded photos of her apartment door and elevator and told Complainant he “left [her] a note” and that he “figured [she] would not want to see or talk to [him].” (Exhibits F1; Exhibits F2, p. 2, 3)

Complainant messaged that she could not find the note. Respondent replied, “It’s inscribed on the wall…” He followed-up with two subsequent messages (Exhibit F2, p. 7).

Complainant replied, “Why are you doing this?”

Respondent added in yet another message, “I came packing heat too…for the thugs up here…” (Exhibit F2).

The following day, Complainant filed and signed a Domestic Incident Report (hereinafter “DIR”) at the precinct.

        *        *        *        *        *        *

Two critical questions were checked “yes” in the DIR: whether “[the] suspect made victim fearful” and whether “suspect was violently and constantly jealous of [victim].” (Exhibit F3; Exhibit C, Page 53-55, 87-88)

It is uncontested that Complainant subsequently moved in with (Petitioner-Appellant). (Exhibit D, Page 236).

The Circumstances that Led to

Case No. 2020-23895

Which Occurred in August of 2021

In her R&R to the PC, DCT Maldonado wrote (Exhibit B, pages 18-19):

Complainant texted Jane Doe (a friend) that “[she] might get beat. [She] might die tonight…” (Exhibit C Page 118) Jane Doe called Internal Affairs (“IAB”)… (Exhibit C, Page 119-20, 126-27).

*        *        *        *        *        *

That afternoon…complainant spoke with Sergeant John Doe … (who) testified that she “initially did not speak. She seemed very reluctant… fearful. She was often times looking over her shoulder…to see if anybody was there or listening.” (Exhibit C, Page 135-36).

On the body-worn camera recording of the interview, Complainant…explains that three weeks ago, on August 1, 2021, she and (Petitioner-Appellant) argued about her attending a friend’s out-of-state funeral.

(Over the course of the IAB investigation) the incident date was changed from August 1 to August 4 when it was determined Respondent was out-of-state on August 1. (Exhibit C, Page 177-78, 182-83).

*        *        *        *        *        *

Complainant told (Sergeant John Doe) that (Petitioner-Appellant) would “not allow” her to attend (her friend’s funeral). She had been laying on the couch as she discussed this with (Petitioner-Appellant). At one point she got up to walk away because she wanted to end the conversation. She told (Sergeant John Doe that as she rose, Petitioner-Appellant) “grabbed [her leg] really hard,” squeezing with his fingers and causing bruises.

[Sergeant John Doe also took five photos of her calf during the course of the interview. (Exhibit C, Page 137; Exhibit F16 at 31:45- 32:06)]

*        *        *        *        *        *

(During the interview the Complainant showed) photos of her injuries that she says were taken on August 2, 2021.

*        *        *        *        *        *

Sergeant John Doe did not ascertain the date the photo was taken. (Exhibit C, Page 146, 148, 183)].

    *        *        *        *        *        *

As the interview unfolds, Complainant responds affirmatively to Sergeant John Doe’s questions about whether Respondent has threatened to kill her, strangled, or choked her, and beaten her while pregnant. She then questions whether pushing constitutes “beating.” When asked if Respondent is violent and constantly jealous, she says he is “jealous of everyone” and then asserts the violence has become worse in the past six months. (Exhibits F16 at 1:24:30-1:25:58).

*        *        *        *        *        *

Complainant completed a DIR where she… alleged…that on August 1, she was speaking with Respondent about going to the funeral out-of-state, and Respondent “grabbed a hold of [her] right leg” because she told him she “didn’t want to talk anymore.” (Exhibits F19)

Respondent testified that there is no truth to the allegations of physical violence and that their relationship was “fine” that summer. He further noted that he was in Chicago visiting his mother on August 1, 2021, the date Complainant alleged this incident occurred, until he returned in the early morning hours of August 4th. (Exhibit D, Page 281-86).

Petitioner-Appellant’s Arrest for the

Allegations Made in

Case No. 2020-23895

And the Subsequent Sealing of

The Record Pursuant to CPL §160.50

On August 25, 2021, Petitioner-Appellant was arrested and charged with two counts of Assault in the Third Degree pursuant to PL §120.00(1), and two counts of Harassment in the Second Degree pursuant to PL §240.26(1), based upon the above allegations made by the Complainant.  On February 17, 2022, Petitioner-Appellant’s criminal charges were dismissed pursuant to CPL §30.30(5).  On February 17, 2022, the record of Petitioner-Appellant’s 8/25/21 arrest, including the BWC footage of the officers who interviewed the Complainant, was sealed pursuant to CPL §160.50.  Neither the District Attorney nor the Court took any action pursuant to CPL §160.50 to demonstrate that the interest of justice required that the sealing of the record of Petitioner-Appellant’s criminal arrest be stayed.  The Department did not take any action pursuant to CPL §160.50(d) to lawfully access the record of Petitioner-Appellant’s criminal arrest for use at Petitioner-Appellant’s Hearing, or otherwise.

The Circumstances that Led to

Case No. 2021-23062

In her R&R to the PC, DCT Maldonado wrote (Exhibit B, page 14-21):

Paid Detail Incident 1: December 19, 2020

(Petitioner-Appellant) pled guilty to all four specifications related to this December 19, 2020, encounter with a male civilian at Duane Reade:

• Discourtesy and offensive language toward a civilian (Specification 1),
• Failing to make Activity Log entries (Specification 2),
• Failing to prepare a T.R.I. report about the incident, as required (Specification 5),
• Failing to make required notifications about the incident (Specification 6),

(Petitioner-Appellant)’s body-worn camera recorded his interaction… The body-worn camera first captures the male as he flips his middle finger at (Petitioner-Appellant who) reacts by stating, “Now you’re on camera dick.” (Exhibits F12 at 1:01-1:03).

*        *        *        *        *        *

(Petitioner-Appellant)  pushes the male four times until he is outside of the store: twice on the chest while the male is still facing him; once on the back after the male turns around; and, once on the shoulder…(Exhibits F12 at 1:04-1:27).

 

(Petitioner-Appellant) tells the male to “[g]et the fuck out of here”

In addition to constantly instructing the male to leave the store, (Petitioner-Appellant)  makes several discourteous and profane comments including, “Fuck you, get out of here, fuck you asshole;” “Fuck you dick, go suck a cock then. Go suck a cock then if that’s what you want;” “Yeah, your fucking breath stinks, go suck a dick somewhere” and “fucking idiot” (Id. at 1:40-1:49, 2:01-2:06, 2:14-2:22; 2:26).

*        *        *        *        *        *

(Petitioner-Appellant) acknowledged using the offensive language depicted on the video as he removed the male from the store. He further conceded that he did not obtain required pedigree information, make any activity log entries, complete a required Threat, Resistance or Injury Interaction (T.R.I.) Report or make any notification about the incident because he considered the matter “over” when the male left the premises and did not return. (Exhibit D Page 255-56)

In accordance with (Petitioner-Appellant)’s plea, he is Guilty of Specifications 1, 2, 5, and 6.

Paid Detail Incident 2: January 12, 2021

1. (Petitioner-Appellant) pled guilty to the following specifications in connection with the January 12, 2021 Duane Reade incident:

• • Unnecessary force against a female (Specification 4),

• • Discourtesy and offensive language (Specification 9),

• • Failing to make required Activity Log entries (Specification 10),

(Petitioner-Appellant) was again performing a paid detail at Duane Reade when he engaged with a female over her non-compliance with the store’s mask policy. A verbal and physical dispute ensued. The female was ultimately arrested for assaulting (Petitioner-Appellant); however, the arrest was not processed after officers from Midtown South (police precinct) reviewed (Petitioner-Appellant)’s body-worn camera and had concerns about whether the video aligned with the details in the arrest paperwork; an IAB investigation was thereafter commenced. (Exhibit C, Page 58, 257-58; Exhibit F6).

(Petitioner-Appellant)’s body-worn camera captured his interaction with the female… (Exhibit F6 at 00:30) When the audio commences, (Petitioner-Appellant)  and the female are heard arguing… (Petitioner-Appellant) …pushes her approximately eight times, using both hands. At all times during this encounter inside the store, the two are face-to face. She repeatedly implores, “Don’t put your hands on me, why are you pushing me.” Each time he pushes, her arms appear to rise reflexively. Although it appears that she may have made some physical contact with (Petitioner-Appellant), it is difficult to discern the specific type or duration of that contact. (Petitioner-Appellant)  says, “Who the hell do you think you are,” and “You just hit me three times,” as he continues to push her. The bottle falls to the ground as they approach the store exit. (Exhibits F6 at 1:00-1:26).

As they move through the main area of store in this manner, the female repeatedly asks him to take his hands off her and emphatically states, “I will leave on my own.” (Petitioner-Appellant)  does not give her the opportunity to do so. He retorts, “You’re leaving now,” and persists in pushing and physically maneuvering her to the exit. As the female stands just beyond the store entrance yelling about her treatment by (Petitioner-Appellant), he pushes her again. They continue arguing verbally for another 40 seconds and she walks away. (Exhibits F6 at 1:27-2:38).

Within ten seconds, the female returns…(Petitioner-Appellant) turns around and tells her to leave as he pushes her beyond the exit, asserting, “I can push you out of the store.” When she is again outside, (Petitioner-Appellant) shoves her once more, angrily yelling “leave the store.” The female gets in (Petitioner-Appellant)’s face, yelling…prompting (Petitioner-Appellant) to push her approximately three times…(Petitioner-Appellant) then reports to the Port Authority police that she hit him three times. The female is arrested…(Exhibits F6 at 2:38-4:36).

At trial, (Petitioner-Appellant) testified that the encounter started when Duane Reade staff informed him that the female was consuming a beverage on the premises, which was against store policy. He stated that as he was trying to push her out of the store, she “smacked” him three times with the soda bottle on his hands and arms, causing a cut to his right hand below the knuckle. At trial, Petitioner-Appellant acknowledged that she did not touch him until he began to push her. He further conceded that he should have deescalated the situation and allowed her to leave the store on her own. (Petitioner-Appellant) explained that he failed to do so because he was injured and got “caught up in the heat of the moment and emotions were running high.” He added, “I was under a lot of stress with working and trying to manage my finances and my children’s welfare.” (Exhibit D, Page 265).

(Petitioner-Appellant) acknowledged on direct examination that he did not make any required entries about this encounter in his Activity Log. (Exhibit D, Page 259, 261, 263-65, 268, 313).

Accordingly, and consistent with his plea, (Petitioner-Appellant)  is Guilty of the misconduct set forth in Specifications 4, 9 and 10.

1. (Petitioner-Appellant) pled not guilty to the following charges:

• • Specification 3: Caused Inaccurate Entries in Arrest Records

• • Specification 8: Caused Arrest of Individual Who Had Not Committed Crime

The Port Authority arrest paperwork states that Respondent “informed” the arresting officer that the subject female “with intent to cause injury did shove him multiple times which caused him to receive a small cut to his hand… while he was working a paid detail at Duane Reade.” (Exhibit F11)

On balance, I find this statement to be incomplete, inaccurate, and inconsistent with what is depicted on the real-time video of this encounter. As noted above, the body-worn camera footage depicts Respondent pushing the female repeatedly to get her to leave the store. Although the female may have made some physical contact with Respondent, I do not find that she, as stated in the arrest paperwork, shoved Respondent with intent to cause injury nor do I find anything on the video corroborating Respondent’s testimony that “she hit me three times with the soda bottle.” (Exhibit D, Page 266).

More importantly, at no point does the video depict the female making a striking motion or using the bottle as a weapon against Respondent. Any contact that she makes appears to be reflexive and reactionary to the force Respondent was using; her arms going up are a natural physical response to his pushes. Further, at no point does he ever stop pushing or give her a brief opportunity to leave the store, even when she emphatically states “I will leave on my own.” Given Respondent’s arbitrary use of force against her, it is wholly unsurprising that there could have been some incidental and reactive movements resulting in physical contact with his hands as he pushed her over and over again. His narrative that the female shoved him with intent to cause injury, however, was self-serving and materially different than what the video documents.

Accordingly, I find Respondent Guilty of causing inaccurate entries in the arrest records. Having found that Respondent’s statements were not accurate, I further find that he did cause the female’s unlawful arrest as alleged in Specification 8. As stated above, there was no indicia of intentionality in the video, and any physical contact the female had with Respondent likely resulted from her reflexive reaction to being pushed aggressively and without police necessity by Respondent through a Duane Reade store. In short, the inaccurate representations

he made caused the female’s arrest for a crime she did not commit. Accordingly, he is Guilty of the misconduct set forth in Specification 8.

1. Respondent pled not guilty to the following charge:

• • Specification 11: Untimely Completion of T.R.I. Report

The Department contends that Respondent’s submission of the required T.R.I. Report was untimely and that it omitted the pertinent information that he used force against the female. It is undisputed that the report was submitted the day after the incident and that the field for “Force Used by MOS” is marked N/A. (Exhibit F10).

P.G. 221-06 clearly states that the T.R.I. Report must be completed “prior [to] the completion of tour, unless exceptional circumstances exist.” The incident took place at 2125 hours on Tuesday, January 12, 2021; Respondent ended his paid detail tour at 2200 hours. (Exhibit F9) The Report is dated 0430 hours, Wednesday, January 13, 2021. No exceptional circumstances were set forth in the record which could explain the delay in submission. The report was therefore submitted late in violation of Department policy. More troubling is that Respondent indicated in the late report that no force was used by checking the not applicable, “N/A,” box. As discussed above, Respondent used excessive force by pushing and shoving the subject female numerous times during the course of this encounter. The record provides no reasonable or credible explanation for the force field to be marked “N/A.” Based on the untimeliness, and the omitted key details about force used in the report, Respondent is found Guilty of Specification 11.

1. Respondent pled not guilty to the following charge:

• • Specification 12: Failure to Make Required Notifications

It is not disputed that Respondent failed to notify a Patrol Supervisor, any other Department Supervisor, or the Paid Detail Unit about this incident which involved the use of force. Patrol Guide 221-06 requires MOS to request the response of an immediate supervisor to the scene of any incident where an MOS is subject to force while on-duty. Respondent did not request a supervisor to the scene and admitted that he did not notify a patrol supervisor from Midtown South. Respondent testified on cross-examination that he had “forgotten” that he was required to do this until he was read the section during his Department Interview with Sergeant John Doe (Exhibit D, Page 322) Based on his admission and the clear rule outlined in the Patrol Guide, Respondent is found Guilty of Specification 12.

1. Respondent pled guilty to the following charge:

• • Specification 7: Twenty-three Paid Detail Violations

Respondent has pleaded guilty to working a paid detail within three hours of his regularly scheduled tour on twenty-three occasions from January 1, 2020, to January 13, 2021. Respondent testified that he knew it was improper to do this but alleged that he needed to supplement his income to meet his child support obligations, as well as pay for his own expenses and those of his girlfriend and her two children who were all living with him. (Exhibit D, Page 243-45, 249-50).

ARGUMENT REGARDING

CHARGES WHEREIN

PETITIONER-APPELLANT PLED NOT GUILTY

1.The Finding of Guilty for

Case No. 2020-22445

Specification No.1 is Not

Supported by Substantial Evidence

And is an Abuse of Discretion

This analysis of the Charges, and of DCT Maldonado’s R&R pertaining thereto (Exhibit B), will be conducted in chronological order, which is a different order than that contained in the R&R.

The first will be Specification No.1 of Case No. 2020-22445, where it’s alleged “between March 10, 2020, and March 11, 2020… (Petitioner-Appellant) wrongfully caused annoyance or alarm to his ex-girlfriend (Complainant)”.  Petitioner-Appellant does not challenge the statement of facts provided by DCT Maldonado in her R&R regarding what transpired.  He does however challenge her conclusion that “Behaving in this manner was contrary to the good order and discipline that the Department expects of its members, even when off-duty.” (Exhibit B page 26).

In her R&R, DCT Maldonado observes that while

The specification references ‘annoyance’ and ‘alarm’, which are terms used in the Penal Law definition of Harassment in the Second Degree, the language of the specification does not expressly charge harassment, nor does it exactly mirror the Penal Law crime.  Those types of cases typically involve a continuing course of unwanted communications.

[Exhibit B page 25].

In her R&R, DCT Maldonado recognizes that the conduct charged in the March 10^th incident does not rise to the level of Harassment, which is a “Family Offense,” and that the Department did not charge Petitioner-Appellant with a “Family Offense.”  DCT Maldonado notes that the “Complainant filed and signed a ‘DIR’ (Domestic Incident Report) at the precinct,” and that “two critical questions were checked ‘yes’ in the DIR: whether ‘the suspect made victim fearful’ and whether ‘suspect was violently and constantly jealous of victim.’ (Exhibit F3, Exhibit C, Page 53-55, 87-88).”

Officer John Doe, who signed the DIR at the precinct, was interviewed by IAB Sergeant John Doe who testified that Officer John Doe had no recollection of checking off the questions cited by DCT Maldonado, no recollection of interviewing the Complainant or taking the report, and no recollection of the incident that is reported in the report (Exhibit C, Page 85 – 92).

Sergeant John Doe interviewed the Complainant who didn’t indicate that she was fearful as a result of this incident, and didn’t indicate whether Petitioner-Appellant was violent or jealous of her (Exhibit C, Page 93).  The Complainant didn’t testify at the Hearing, and there is no evidence that she had anything to do with the DIR cited by DCT Maldonado, nor that it is a true or reliable record of what happened on March 10th.  As to the extent to which the Complainant may have felt “annoyed or alarmed” by Petitioner-Appellant’s conduct, DCT Maldonado goes on to note that “It is uncontested that the Complainant subsequently moved in with Respondent (Exhibit B, page 16)”.

The Conduct Alleged Does Not

Rise to a Level of Conduct

Prejudicial to the Good Order and

Discipline of the Department

The private and intimate affairs of its employees must rise to some reasonable threshold before they can be deemed the affairs of the Department, much less affairs that are contrary to the good order and discipline of the Department.  Guidance as to whether this threshold is met is contained in the NYPD Disciplinary System Penalty Guidelines, Effective 2/15/22 (The “Guidelines”, attached as Addendum 1).  At page 39 of the Guidelines “Domestic Violence Incidents” warranting Department discipline are defined as “Physical Acts of Domestic Violence/Family Offense.”  At page 40, Footnote No. 69, “Non-physical Acts of Domestic Violence/Family Offense” are defined as including, “but not limited to, verbal threats, stalking, harassment, coercion and destruction of property.”  “Family Offenses” are specific offenses that are listed in the Family Court Act at Sections 812 and 821, and which are defined in the Penal Law.

The Department did not charge the Petitioner-Appellant with the commission of any “Family Offense” as identified in the Family Court Act and defined in the Penal Law.  It is not alleged or proven that Petitioner-Appellant engaged in a physical act of domestic violence on the night of March 10^th.  It is not alleged or proven that Petitioner-Appellant made verbal threats.  The Department did not charge or attempt to prove that the Petitioner-Appellant committed the Family Offenses of Coercion (PL §135.60) or Criminal Mischief/Destruction of Property (PL §145.00) which are referenced in Footnote 69, page 40 of the Guidelines (Addendum 1).  The Department did not charge or attempt to prove, and DCT Maldonado noted that Petitioner-Appellant did not commit the Family Offense of Harassment (PL §240.26) because Harassment requires a “continuing course” of conduct which was not present in the events of March 10^th.  Likewise, the Department did not charge or attempt to prove that the Petitioner-Appellant committed the Family Offense of Stalking (PL §120.45) which is also referenced in Footnote 69, page 40 of the Guidelines (Addendum 1), presumably because Stalking like Harassment requires a “continuing course” of conduct which was not present in the events of March 10^th.

DCT Maldonado relies entirely upon the DIR that was prepared in the aftermath of the March 10^th incident to find the Petitioner-Appellant guilty of this charge.  Assuming arguendo that Complainant was even involved in the preparation of the DIR (Exhibit F3), it is insufficient “intervention of law enforcement” to make the incident a matter for Discipline.

NYPD Patrol Guide Procedure 208-36 (Addendum 2), the general procedure for “Family Offenses/Domestic Violence” cases, in the “Notes” on page 14, states a DIR “WILL NOT be prepared for unfounded domestic incident occurring within New York City”.  However, Patrol Guide Procedure 208-37 (Addendum 3), the procedure for “Family Offenses and Domestic Violence involving…Members of the Service,” at procedural step “4(a)” (page 6), states that a DIR will be prepared in all cases” (emphasis added).  Thus, if a Member of the Service (“MOS”) is involved in a “Domestic Incident” a DIR is prepared whether the incident is founded or not.

The mere preparation of a DIR in Petitioner-Appellant’s case does not justify the imposition of discipline because it is not conclusive evidence that the domestic incident reported was founded.  DCT Maldonado’s reference to the Merriam-Webster’s Dictionary (Exhibit B page 17) has no bearing on whether “annoyance or alarm”, standing alone, qualify for Department discipline.  If it did, every MOS who annoyed or alarmed a spouse or significant other would be subject to discipline, a ridiculous imposition on officers and a gross overreach by their employer.

Conclusion Regarding

Case No. 2020-22445

In its discussion of “substantial evidence”, the Court of Appeals in Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176 (1978) stated,

Substantial evidence does not rise from bare surmise, conjecture, speculation, or rumor.

The evidence at the Hearing established nothing more than an initially awkward, but ultimately successful romantic endeavor on the part of Petitioner-Appellant.  The Guilty Finding for this Charge should be reversed because it is based upon nothing more than “surmise” and “conjecture” that Petitioner-Appellant engaged in conduct that was prejudicial to the good order of his employer.  Accordingly, Petitioner-Appellant’s prosecution for this charge is an abuse of discretion pursuant to CPLR §7803(3), and his finding of Guilty is not supported by substantial evidence pursuant to CPLR §7803(4).

2. The Finding of Guilty for

Case No. 2021-23895

Specification 1 is Not

Supported by Substantial Evidence

Specification 1 of Case No. 2021-23895 alleges that between August 1, 2021 and August 4, 2021, Petitioner-Appellant engaged in verbal and physical altercation with the an “individual known to the Department” causing an injury.

It should first be noted that the “individual known to the Department” referenced in Case No. 2021-23895 is the same “ex-girlfriend” referenced in Case No. 2020-22445 (discussed above).  Petitioner-Appellant categorically denies that he had any physical altercation with this individual, and absolutely denies doing anything that might have caused her any injury.  The evidence and testimony proffered by the Department in support of this Charge fails to prove otherwise.

Credibility of the Complainant

In her R&R (Exhibit B, page 22), DCT Maldonado expounds upon the challenges in making credibility determinations “where two individuals provide starkly different versions of the same events.”  Nonetheless, DCT Maldonado fails to conduct a careful and clearly articulated explanation for why she finds the Complainant credible.  In her weak analysis, she fails to address or glosses over the following deficiencies in the Complainant’s testimony:

1. The Complainant failed to appear at the Hearing to testify under oath and be subject to cross examination regarding her allegations against Petitioner-Appellant.
2. In lieu of live sworn testimony subject to cross examination, DCT Maldonado relied upon a body camera video of a sympathetic interview conducted in the Complainant’s own home by a police sergeant and captain.
3. DCT Maldonado fails to address the motivations the Complainant had for giving false information about Petitioner-Appellant.
4. DCT Maldonado fails to address the Complainant’s sophisticated knowledge of the internal workings of the NYPD and her capacity to manipulate that knowledge to her advantage.
5. DCT Maldonado fails to address the three (3) different dates of occurrence provided by the Complainant: The first to the officers who responded to her home, the second to the Queens District Attorney’s Office (“Queens DAO”), and the third to the NYPD Advocate’s Office which prosecuted the case against Petitioner-Appellant.
6. DCT Maldonado fails to address the fact that the Complainant’s lack of credibility was flagged by the Queens DAO as a basis for its dismissal of the criminal complaint that was signed by the Complainant.
7. DCT Maldonado fails to address the implausibility of Complainant’s explanations for how her leg became bruised and fails to address the two different explanations Complainant provided for the bruise.
8. DCT Maldonado confuses her role as trier of fact with that of an expert in the “Indicia of Domestic Violence Victimhood.”
9. DCT Maldonado shifts the burden of proof from the Department to Petitioner-Appellant.

 

A. Complainant’s Absence

At the Hearing

In the case of Davis v Alaska, 415 U.S. 308, 316 (1974), the United States Supreme Court observed:

The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.

DCT Maldonado appropriately acknowledges that while “hearsay is admissible in this tribunal (that) does not mean it must be accorded any weight if it is unreliable” (Exhibit B page 22).  She notes that “traditional credibility factors such as logic, consistency, corroboration, bias and interest” must be applied in assessing “Complainant’s statement and Respondent’s testimony” (Exhibit B page 23).  DCT Maldonado nonetheless fails to apply these “traditional credibility factors” to account for the absence of the Complainant at the Hearing, and the absence of cross examination as the “principal means by which the believability of (the Complainant) and the truth of (her) testimony are tested.”  This will be shown in greater detail in the paragraphs that follow.

B. Complainant’s

Sympathetic Interview

In Lieu of Live Testimony

Sgt. John Doe was the patrol supervisor who responded to the residence that was shared by the Complainant and Petitioner-Appellant and took the initial complaint.  Sgt. John Doe’s body worn camera (“BWC”) video of his interview with the Complainant is in evidence as Exhibit F16.  At 14:33:30 – 14:34:20 of Exhibit F16, Sgt. John Doe is heard encouraging the Complainant to prepare the DIR in evidence as Exhibit F19 by stating,

It’s very important if you are trying to acquire an order of protection, it’s really to protect yourself, you need to protect yourself, it’s important what you write so family court can look at it and say this is our victim, she needs this, that and this, all these services provided for her, because there are a lot of ways that the State can help you.  A lot of people in your case who don’t want to get the other person in trouble and don’t want to see them get in trouble, but you’re putting your life at risk by you not getting them in trouble. Sometimes people need to get in trouble.

At Exhibit F16, 15:12:00 – 15:12:21, Sgt. John Doe can be heard imploring the Complainant to “Please, please write what needs to be written, think about yourself and your kids.”

As noted by DCT Maldonado, rather than forthrightly offering information,

As the interview unfolds, Complainant responds affirmatively to John Doe’s questions about whether Respondent has threatened to kill her, strangled or choked her, and beaten her while pregnant.  She then questions whether pushing constitutes ‘beating’.  When asked if Respondent is violently and constantly jealous, she says he is jealous of everyone (Exhibit F16 at 1:24:30 – 1:25:58).

It is clear throughout the interview that the Complainant is passively following Sgt. John Doe’s lead, and merely filling in blanks offered to her.

An appropriate assessment of the Complainant’s credibility requires careful consideration of the encouragement and cues that she received. In her application of the “traditional credibility factors” of “bias and interest,” DCT Maldonado failed to conduct this analysis of the credibility of Complainant’s statement.

C. Complainant’s Motivations

For Giving False Information

About Petitioner-Appellant

Petitioner-Appellant, the only witness with actual knowledge of his relationship with the Complainant who gave sworn testimony and was subject to cross examination, testified that the Complainant and her thirteen-year-old daughter moved into his apartment in March of 2020 (Exhibit D, Page 233 – 236, 239).  In June of 2020 the Complainant informed Petitioner-Appellant she was pregnant, and that two other men could potentially be the father (Exhibit D, Page 238).  On July 12, 2020, the Complainant vacated Petitioner-Appellant’s apartment and returned to live with her former boyfriend whom she identified as a potential father of her new child (Exhibit D, Page 240).

In September of 2020 the Complainant moved back in with Petitioner-Appellant (Exhibit D, Page 242-243).  On January 16, 2021, the Complainant gave birth to her child and named him after another man, Officer John Doe, whom she identified as another potential father.  Nonetheless, Petitioner-Appellant welcomed the child into his home, acknowledged the child as his, and continued to financially support the Complainant, her thirteen-year-old daughter, and the new baby until August of 2021 when he was arrested (Exhibit D, Page 276 – 280, 284).

Petitioner-Appellant testified regarding the impact of the Complainant’s allegations upon his life:  He was forced to vacate his home, he was suspended without pay, he was on modified assignment for several months, and all contact between Complainant’s newborn child and him was severed. (Exhibit D, Page 293 – 295).

As stated above, some threshold must be met before the NYPD can inject itself into the personal and intimate affairs of its employees.  The wisdom of Petitioner-Appellant’s relationship with the Complainant is not the issue.  Rather, regarding the analysis of the credibility of the Complainant, the issue is whether she had motivations to give false statements to harm Petitioner-Appellant, exact revenge, or extract economic or other advantage.  The undisputed dysfunctional nature of the relationship, the ruthless efficiency with which she ended it for both her child and herself while also securing possession of Petitioner-Appellant’s apartment, all implicate the “traditional credibility factors such as … bias and interest” that must be applied in assessing “Complainant’s statement” (Exhibit B page 23).

An appropriate assessment of the Complainant’s credibility requires careful consideration of her motivations to make false allegations against Petitioner-Appellant. In her application of the “traditional credibility factors” of “bias and interest” of the Complainant, DCT Maldonado failed to conduct this analysis.

D. Complainant’s Sophisticated Knowledge

About the Internal Workings of the NYPD

Complainant was living with an auxiliary police officer named John Doe when Petitioner-Appellant visited her in March of 2020 (Exhibit C, Page 42 – 44), and the Complainant returned to him when she left Petitioner-Appellant in July of 2020 (Exhibit D, Page 240).

Officer John Doe, who testified for the NYPD, was the person who reported the “alarming message” (Exhibit C, Page 118-119) which led to Case No. 2020-22445.  Officer John Doe testified that he met the Complainant via a “Facebook Group” that was frequented by “a lot of members of the service.”  Officer John Doe also testified that he himself had an “intimate incident” with the Complainant about a month before he called IAB on her behalf.  (Exhibit C, Page 117-118, 125).  Officer John Doe is the police officer Complainant named her child after in January of 2021, and who was at the hospital at the time of birth (Exhibit D, Page 278 – 279).

Thus, the Complainant had numerous sources with knowledge of the NYPD to counsel her regarding the impact on Petitioner-Appellant if she complained of domestic violence as a means of ejecting him from her life.  An appropriate assessment of the Complainant’s credibility requires careful consideration of the resources Complainant had for crafting effective false allegations against Petitioner-Appellant. In her application of the “traditional credibility factors” of “bias and interest” of the Complainant, DCT Maldonado failed to conduct this analysis.

E. Complainant Gave Three (3)

Different Dates of Occurrence

For the Bruise to her Leg

During his testimony (Exhibit C, Page 146 – 147), Sgt. John Doe explained how the initial date of occurrence of the alleged injury, a bruise, was determined:

Q:  She showed you a picture of a bruise that she had on (her) phone, right?

A:  Yes.

Q:  And she was explaining to you that it happened two weeks prior to your encounter with her, correct?

A:  Correct.

Q:  She actually utilized her phone to figure out what the date was that the bruise was caused, right?

A:  Yes.

Q:  You wrote that date down, right?

A:  I did.

Q:  And basically she indicated to you that she took the picture of the bruise the day after the incident, right.

A:  Yes.

Q:  And she indicated to you, by looking at her phone, that the picture was taken on August 2^nd, right?

A:  Correct.

Q:  And based upon that information, the incident occurred on August 1^st?

A:  Yes.

Consistent with Sgt. John Doe’s testimony regarding the date that the picture of the bruise was taken, and the Complainant’s statement that the picture was taken the day after the bruise occurred, in the video in evidence as Exhibit F16, at Counter Number 1:18 – 1:24, the Complainant can be observed carefully examining the meta-data on her phone prior to declaring “those photos was taken on the second of August,” whereupon Sgt. John Doe inquires, “So August first?” and the Complainant confirms, “Yeah.”

After her interview with Sgt. John Doe on August 25, 2021, Complainant prepared a DIR, in evidence as Exhibit F 19, in which she listed the date of occurrence of the alleged bruise as “Aug 1^st”.  However, the next day, on August 26, 2021, Complainant signed a Queens Criminal Court Complaint which listed the date of occurrence as August 3, 2021 (Exhibit F20), a discrepancy of two days.

However, Petitioner-Appellant subsequently provided the Queens DAO with documentary proof that he was travelling in the Midwest between August 1^st and August 4^th, 2021, as was stipulated by the NYPD[1].  This contributed to the dismissal of the criminal case by the Queens DAO who noted “one of the reasons why they dismissed the case was that the credibility of the complainant victim came into question” (Exhibit C, Page 181).

The fact that the bruise could not have occurred on August 1^st or August 3^rd because Petitioner-Appellant was not in New York until August 4^th led the NYPD to change the alleged time of occurrence a second time to “between August 1, 2021 and August 4, 2021” (Exhibit A, Case No. 2021-23895).  However, if the meta-data on Complainant’s phone was accurate when she looked at it while being recorded by Sgt. John Doe’s BWC (Exhibit F16, at Counter Number 1:18 – 1:24) the bruise could not have been caused on August 4^th because it was photographed on August 2^nd.

In her R&R, DCT Maldonado brushes away these discrepancies stating, at Exhibit B, page 24, “I do not find (Complainant’s) lack of precision on the date of the incident to be fatal to the specification – it is a matter of a few days and the event was not reported for several weeks,” and in a footnote, “The Department correctly noted that Respondent is charged with ‘conduct prejudicial’ and the Department need not prove the elements of the crime with which he was charged in family court nor prove the date beyond a reasonable doubt” (emphasis added).

Among the problems with this cavalier attitude toward the burden of proof and the sufficiency of the NYPD’s evidence is that it recognizes no limit to the depth of the NYPD’s intrusiveness into the intimate affairs of its employees and respects no parameters around their private lives.  It means that “conduct prejudicial” is whatever the P.C. feels it is at any time, under any circumstance.  This is arbitrary and capricious, in derogation of the standards clearly set forth in the Guidelines (Addendum 1), and in Article 78 § 7803(3) of the CPLR.

According to DCT Maldonado’s R&R, “the tribunal must apply the traditional credibility factors such as …CONSISTENCY” (Exhibit B, page 23, emphasis added).  DCT Maldonado failed to address this lack of consistency in the reports of the date of occurrence of Complainant’s bruise.

F. Doubts About Complainant’s Credibility

Raised by the Queens DAO

Sgt. John Doe was the “lead investigator” of Complainant’s bruise (Exhibit C, Page 169 – 170).  Sgt. John Doe testified that the Complainant’s allegations regarding her bruise led to the filing of a criminal complaint by the Queens DAO which was later dismissed (Exhibit C, Page 181).  Sgt. John Doe testified that he spoke to the Assistant District Attorney who dismissed the case and was told that “one of the reasons why they dismissed the case was that the credibility of the complainant victim came into question” (Exhibit C, Page 181).  Sgt. John Doe testified that he conducted eight (8) interviews of the Complainant, none of which were recorded, during which it was “determined (that) when (Petitioner-Appellant) came back from Chicago that was the date of the incident, and it was changed from August 1^st to August 4^th” (Exhibit C, Page 178-179).

Petitioner-Appellant could not have caused the alleged bruise on the first date reported by the Complainant, nor the second date reported by the Complainant, and the Queens DAO dismissed their criminal case at least in part due to the Complainant’s lack of credibility.  Nonetheless Sgt. John Doe completely failed to investigate this red flag over his investigation:

Exhibit C, Page 182

Q:  Did you discuss with (Complainant) the fact that (Petitioner-Appellant) was not in New York City at the time that she first reported this?

A:  No.

Exhibit C, Page 183

Q:  Did you find out how she came up with the date that she originally reported?

A:  There were photographs that she took on August 2^nd.

Q:  And did she say it was the day after it occurred?

A:  Yes.

Q:  Did you verify (if) the pictures she took of her injury occurred on August 2^nd?

A:  No.

Q:  Why not?

A:  I just took her word that those photos were taken on August 2^nd.

Exhibit C, Page 184

Q:  Did you look at her phone to ascertain the date that she took the pictures?

A:  No.

Q:  Why not?

A:  We didn’t do that.

Q:  Wouldn’t that be a logical investigative step?

A:  Yes.

Exhibit C, Page 185

Q:  Did it occur to you, when you discovered that the date she said this happened (Petitioner-Appellant) was in Chicago, that possibly the allegation was false?

A:  Possibly.

Q:  Did you do anything to track down whether or not the allegation was false?

A:  No.

Exhibit C, Page 186

Q:  So what did you do to reconcile this discrepancy in the report that was made by the complainant?

A:  Nothing.

Exhibit C, Page 193 – 194

Q:  In the course of investigating whether or not an assault occurred, did you inquire as to whether or not the complainant had a motivation to make a false allegation?

A:  No.

Q:  Why not?

A:  I didn’t think it was a reason to make a false allegation.

Q:  How did you know?

A:  I never asked, but I don’t believe there was any.

Exhibit C, Page 195

Q:  You interviewed (Petitioner-Appellant), is that right?

A:  Yes.

Q:  And did he provide any corroboration for the allegation with regards to the grab?

A:  No, he denied it.

Exhibit C, Page 202 – 206

Q:  You did a worksheet that says ADA John Doe (of the Queens DAO) had a problem with your main witness’ credibility, right?

A:  Yes.

Q:  What did you do as a result of that report?

A:  I brought it up to my lieutenant and I said there was never any credibility issues.

Q:  Is it fair to say that you disregarded this report from the ADA?

A:  I don’t agree with it.

Q:  Basically, as the investigator, you overrode this report from the ADA, is that what you’re telling me?

A:  Based on my many conversations with ADAs, there’s no credibility…

Q:  Did you contact the ADA and say, “What are you talking about here?”

A:  No.

Q:  Did you go back over your investigation to see if maybe you missed something that maybe he caught?

A:  No.

Q:  Did this in any way change your posture of your investigation as it relates to (Petitioner-Appellant)?

A:  No.

Q:  So notwithstanding the fact that an ADA reported to you, to your investigator, to your supervisor, that he has a problem with the complainant’s credibility, you ignored it, didn’t you?

A:  No.

Q:  How did you not ignore it?  What did you do?

A:  I don’t remember.  I don’t remember what’s on the worksheet, what occurred.

Q:  You do not remember this worksheet?

A:  No, I’ve seen the worksheet before.

        *        *        *        *        *        *        *          *

Q:  Now, what did you do when you saw this report?

A:  Nothing.

Q:  Why?

A:  Because I – – it never came up to me before.

Q:  What do you mean it never came up to you before?  This investigation, it came up to you this time.

A:  I didn’t do anything.

Q:  You didn’t do anything?

A:  No.

          *        *        *        *        *        *        *          *

Q:  Did you ask?

A:  No, I never asked ADA Starling.

Notwithstanding the unexplained and unprobed discrepancies in the Complainant’s accounts of when the bruise occurred, and the contortions and distortions of Sgt. John Doe in his one-sided imbalanced and incurious investigation designed to circumvent Petitioner-Appellant’s clear alibi evidence, DCT Maldonado simply glosses over the entirety of this mess by declaring, “as the finder of fact in this matter, I believe Complainant’s version of events regarding the August 2021 argument and physical altercation”  (Exhibit B page 24).  In other words, rather than applying “traditional credibility factors such as consistency, corroboration, bias and interest in assessing Complainant’s statement,” DCT Maldonado applied her own intuition and gut instinct because she “believes” the Complainant.

G. The Conflicting Accounts

And Overall Implausibility of How the

Complainant Sustained Her Bruise

Complainant provided two versions of how Petitioner-Appellant allegedly caused her bruise.  The first is reflected in the DIR prepared by the Complainant (Exhibit F19), and in the BWC video (Exhibit F16, Counter 1:04 – 1:07), and in the report prepared by a Police Captain (Exhibit E2) in which Complainant claims that while sitting on a couch discussing a trip to Texas, she got up to leave and Petitioner-Appellant grabbed her leg to prevent her from leaving.

There is no testimony or evidence of a heated argument preceding the “grab,” and no testimony or evidence of violence after the “grab.”  There is no evidence to suggest that the grab was intended to cause pain, much less injury.  And it simply defies logic that a person simply grabbing the leg of another who is in the process of getting up to walk away could cause a bruise that would still be visible to the naked eye weeks later.

Complainant’s second version is contained in the criminal complaint that was filed by the Queens DAO the next day (Exhibit F20).  This version contains an embellishment: “Defendant grabbed the Deponent’s right calf, squeezed and dug his hand into her calf, causing substantial pain (emphasis added).”  As stated above, the Queens DAO later dismissed the complaint citing questions regarding the credibility of the Complainant.

In her R&R, instead of addressing this discrepancy between the two versions alleged by Complainant, whether it was merely a “grab” or a “squeeze”, DCT Maldonado blends the two, writing, at Exhibit B, page 20:

She had been laying on the couch as she discussed this with (Petitioner-Appellant).  At one point she got up to walk away because she wanted to end the conversation.  She told the sergeant that as she rose, (Petitioner-Appellant) “grabbed [her leg] really hard,” squeezing with his fingers and causing bruises (emphasis added).

Looked at carefully, DCT Maldonado put the word “squeezing” outside of the quotation marks because the Complainant did not say the word “squeezing” to the sergeant.  That word is not heard on Sgt. John Doe’s BWC footage (Exhibit F16) and is not reflected in the DIR prepared by the Complainant (Exhibit F19), nor the official report prepared by the Police Captain (Exhibit E2).  The word “squeeze” appears for the first and only time in the criminal complaint filed the next day.

This is not mere semantics because a “squeeze” indicates intent, an element of the crime of Assault if the intent is to cause an injury (PL §120.00), and an element of the offense of Harassment if the intent is to harass, annoy, or alarm (PL §240.26).  Both assault and harassment are Family Offenses, and they are “Physical Acts of Domestic Violence”, both of which are delineated in the Guidelines (Addendum 1) as categories of misconduct.

A mere “grab” could possibly satisfy the culpable mental state of recklessness, but would require that Petitioner-Appellant was “aware of and consciously (disregarded) a substantial and unjustifiable risk that (Complainant’s bruise) would occur,” and “the risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (see Penal Law §15.05[3]).

Assuming arguendo[2] that Petitioner-Appellant grabbed Complainant’s leg to prevent her from getting off the couch and leaving, in the fashion described in the BWC video (Exhibit F16), it would not meet the statutory definition of “Reckless” because it does not rise to the level of a “gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

Thus, a second important discrepancy in the Complainant’s multiple versions of how and when she sustained a bruise, coupled with her implausible explanation of how she sustained it, are completely unaddressed by DCT Maldonado in her R&R (Exhibit B).  This is another failure to “apply traditional factors such as logic (and) consistency…in assessing Complainant’s statement.”  This only serves to further undermine the credibility of the Complainant, the weight of the NYPD’s evidence, and the reliability of DCT Maldonado’s analysis of this case.

H. DCT Maldonado Conflates Her

Role as Trier of Fact with

That of Expert in Domestic Violence

In the Guidelines (Addendum 1), at page 10 under the rubric “Department Trials” it states, “At trial, the DAO… has the burden of proving the charges by a preponderance of evidence and is required to present evidence against the member of the service.”  At page 39 of the Guidelines, as an aggravating factor, it states, “Clear and convincing evidence demonstrates that the member of the service previously committed physical act(s) of domestic violence whether or not previously reported and/or substantiated.”  In the Pattern Jury Instructions (1A NY PJI3d 1:64 at 105 [2022]), under the rubric “General Instruction – Burden of Proof – Clear and Convincing Evidence,” it states:

To decide for the plaintiff it is not enough to find that the preponderance of the evidence is in the plaintiff’s favor.  A party who must prove (his, her) case by a preponderance of the evidence only need satisfy you that the evidence supporting (his, her) case more nearly represents what actually happened than the evidence which is opposed to it.  But a party who must establish (his, her) case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what (he, she) claims is what actually happened (emphasis added).

In her R&R, DCT Maldonado bootstraps what she calls “very clear indicia of someone who has experienced domestic violence” to opine that “the body-worn camera footage documenting Complainant as she made her claims provided convincing evidence of her truthfulness” (Exhibit B page 23).  In doing so, DCT Maldonado has injected herself as an unsworn expert witness in this case, absolved the DAO of its obligation to “present evidence,” and abdicated her obligation to conduct “Department trials in a fair and impartial manner, consistent with the rules and regulations governing administrative hearings, as well as the due process rights of the Department’s members” (see Guidelines, Addendum 1, pages 10-11).

In support of her opinion that “Complainant presents very clear indicia of someone who has experienced domestic violence,” DCT Maldonado offers the following observations premised exclusively on the BWC footage (Exhibit  F16):

• “She appears nervous, almost skittish, at the outset, avoiding eye contact, looking toward the front door, and only answering Sgt. John Doe’s question with terse, to-the-point responses.”
• “As time passes, the sergeant is able to elicit more details.”

From these bare observations, DCT Maldonado leaps to the following conclusions:

• “A phenomenon that is entirely consistent with domestic violence victims.”
• “What is clear is that Complainant has not prepared a fabricated account aimed at inflicting negative consequences on (Petitioner-Appellant).”
• “On the contrary, Complainant seems taken aback that the officers are at her home and reluctant at the outset to have a conversation with them.”
• “At times, Complainant even makes excuses for (Petitioner-Appellant) and appears concerned about potential consequences for him. For example, she voluntarily admits to the sergeant that she was unfaithful to (Petitioner-Appellant).”

(Exhibit B page 23).

DCT Maldonado is not relying here on any words the Complainant spoke, she’s merely relying on the way Complainant looked while speaking without the benefit of cross examination.  The “Clear and Convincing” standard of a “high probability” that the Complainant “experienced domestic violence” cannot legally be met by simply watching a person’s demeanor on a video.

Again, the Complainant did not appear in court, was not sworn, and was not questioned by opposing counsel.  Additionally,

• The Department did not offer any evidence to show Sgt. John Doe possessed the kind of specialized training that could elicit “clear indicia of someone who has experienced domestic violence” when he interviewed Complainant.
• The Department did not offer the testimony of a properly qualified expert witness on “indicia of someone who has experienced domestic violence,” to proffer an expert opinion in support of the proposition that the way Complainant answered Sgt. John Doe’s questions represents “a phenomenon that is entirely consistent with domestic violence victims.”
• The Department did not offer a properly qualified expert witness to opine whether, based on her demeanor in the BWC footage (Exhibit F16), Complainant has “prepared a fabricated account aimed at inflicting negative consequences on Respondent.”
• The Department did not offer a properly qualified expert witness to opine whether the possibility that Complainant seemed “taken aback”, or “reluctant at the outset”, or “makes excuses” or “appears concerned” qualify as “very clear indicia of someone who has experienced domestic violence.”

While injecting herself into the evidentiary record as an unsworn witness for the Department’s case, DCT Maldonado is silent regarding her own credentials or experience to support the propositions she makes.  Her conclusions amount to nothing more than bare surmise, conjecture and speculation.  This is entirely improper [see Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176 (1978), in which the Court of Appeals stated, “Substantial evidence does not rise from bare surmise, conjecture, speculation or rumor.”].

DCT Maldonado’s title and intuition are not substitutes for the standard of proof she is duty-bound to apply to evidence presented by the NYPD.  She has taken it upon herself to bridge gaps in the NYPD’s case to arrive at conclusions that are beyond the reach of the evidence.

I. DCT Maldonado has Shifted

The Burden of Proof from

The Department to Petitioner-Appellant

In the Guidelines at page 10 (Addendum 1) under the rubric “Department Trials” it states, “At trial, the DAO…has the burden of proving the charges by a preponderance of evidence and is required to present evidence against the member of the service.”

By dismissing Petitioner-Appellant’s testimony as offering “little more than a blanket denial of any physical violence and an assessment that the relationship was ‘fine’” (Exhibit B page 24) DCT Maldonado eviscerates this rule and imposes an impossible burden on Petitioner-Appellant.  What more could he possibly offer than “I wasn’t there on the first day she claims it happened, I wasn’t there on the second day she claims it happened, and I didn’t do it on the third day she claims it happened”?

As for the sufficiency of Petitioner-Appellant’s evidence, the NYPD stipulated he was in the Mid-West on both the first and second day that Complainant claimed the bruise happened at her home in Queens.  The NYPD then conformed its Charge to the day he returned.  This is not a “blanket denial.”  This is an alibi.  The fact that the NYPD gerrymandered its Charge to circumvent that alibi actually corroborates it.

Additionally, Petitioner-Appellant attempted to testify, based upon his personal knowledge and experience, that he could not possibly have caused Complainant’s bruise the way she described it occurring (Exhibit D, Page 289 – 293).  While there may have been an issue regarding the weight to be accorded this testimony, it was inappropriate to deny Petitioner-Appellant, an accused charged with rank slander, the opportunity to testify in his own defense.  By denying him this opportunity DCT Maldonado not only shifted the burden of proof onto him, she denied him the opportunity to try and meet it.

Conclusion Regarding

Case No. 2021-23895

In the case of Brown v Murphy, 43 A.D.2d 524 (First Dept. 1973), the Court held that:

While compliance with the technical rules of evidence is not required in disciplinary proceedings (citation omitted), nevertheless, it has been recognized that under certain circumstances, the receipt of hearsay evidence might be so prejudicial as to have a tendency to deprive a party of a fair hearing.

In the case of Erdman v Ingraham, 28 A.D.2d 5 (First Dept. 1967), the Court held that:

The receipt and consideration of the hearsay statements, without the opportunity of cross-examination, had the effect of depriving Petitioner-Appellant of the fair and proper hearing to which he was entitled.

As stated by DCT Maldonado in her R&R (Exhibit B, pages 22 – 23), “Here, there is little doubt as to the centrality of the hearsay evidence to the Department’s case as it constitutes the principal evidence of guilt upon which the Department relies.”  Given the extent to which DCT Maldonado’s finding in this case relied upon the hearsay of the Complainant, and the breadth and scope of all of the infirmities undermining the Complainant’s credibility, the lack of opportunity for cross-examination had the effect of depriving Petitioner-Appellant of a fair and proper hearing.

The Guilty Finding for this Charge should be reversed because it is based upon unreliable hearsay evidence, the admission of which denied the Petitioner-Appellant of a fair hearing.  This Guilty Finding is not supported by substantial evidence pursuant to CPLR §7803(4).

3. The Findings of Guilty for

Case No. 2021-23062 Are Not

Supported by Substantial Evidence

Petitioner-Appellant contests the Findings of DCT Maldonado on the following charges stemming from Case No. 2021-23062:

Specification 3:  On or about January 12, 2021, wrongfully caused inaccurate entries in Department or Port Authority Police Department records about the facts leading to an arrest.

Specification 8:  On or about January 12, 2021, wrongfully caused the arrest of an individual known to the Department for Assault in the Third Degree when said individual had not committed said crime.

With regard to Specifications 3 and 8, Petitioner-Appellant is not guilty of causing inaccurate entries in NYPD or Port Authority PD records about the facts leading to the arrest of Jane Doe and did not wrongfully cause her arrest.

A. Jane Doe Was

Guilty of Disorderly Conduct

Penal Law Section 240.20, Disorderly Conduct, states:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or
2. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

While on “Paid Security Detail,” Petitioner-Appellant approached Ms. Jane Doe on January 12, 2021, in the Duane Reade store where he was assigned, because she was not properly wearing a sanitary face covering (“mask”) and was consuming an open beverage in an indoor public establishment during the height of the world-wide Covid 19 pandemic (Exhibit D, Page 258 – 260).    Accordingly, at that place and time, Ms. Jane Doe was recklessly creating a risk of public inconvenience, annoyance or alarm by creating a hazardous or physically offensive condition which served no legitimate purpose, to wit: possibly spreading contagion.  Petitioner-Appellant was completely within his authority to place her under arrest for Disorderly Conduct.

Further, it is clear from the BWC video (Exhibit F6, Counter 00:59 – 01:15) that Ms. Jane Doe resisted Petitioner-Appellant’s efforts to eject her from the store by pushing or slapping back at him with a soda bottle in her hand.  This conduct by Ms. Jane Doe recklessly created a risk of public inconvenience, annoyance or alarm by engaging in fighting or in violent and tumultuous behavior.  Accordingly, Petitioner-Appellant was completely within his authority to place her under arrest for a second count of Disorderly Conduct.

B. Definitions of “False Statement”

And “Inaccurate Statement”

The Guidelines (Addendum 1), at page 35, define a “False Statement” as an “intentional statement that a member of the service knows to be untrue.”  The Guidelines then go on to define “Intent” as “A statement is an intentionally false statement when it is the conscious objective to make the false statement.  Determining intentionality requires a consideration of the relevant factors.  Some factors which may be considered include…The subject’s physical, mental or emotional condition at the time the statement is made.”

In Footnote No. 58 on page 35 of the Guidelines, at the end of the sentence “The subjects physical, mental or emotional condition at the time the statement is made,” the Guidelines state, “For example, a statement is made or elicited in the immediate aftermath of a stressful incident such as an adversarial shooting or other traumatic event before the member had sufficient opportunity to reflect and recall details of the event.”  The Guidelines, at Page 37 also define an “Inaccurate Statement” as “A statement that a member of the service knows, or should know, includes incorrect material information.  There is no intent to deceive, but rather the member’s actions are grossly negligent.”

C. Petitioner-Appellant’s Lack

Of Intent to Make a False

Statement,\ and Lack of

Gross Negligence to Make

An Inaccurate Statement

During his testimony, beginning at Exhibit D, Page 261, Petitioner-Appellant identified on the BWC video (Exhibit F6, Counter 00:59 – 01:15) the three “hits” he was referring to when he informed the Port Authority Police Officers who responded that he had been hit by Ms. Jane Doe three times.

As set forth in greater detail below, Petitioner-Appellant was in the throes of a very difficult period of his life in January of 2021, with financial, emotional and physical stressors making him vulnerable to error when faced with confrontational situations.  While not rising to the level or an adversarial shooting, a review of Exhibit F6 reveals that the confrontation with Ms. Jane Doe was traumatic for Petitioner-Appellant, and that he did not have time to reflect upon it before he reported to Port Authority Officers that Ms. Jane Doe assaulted him.  In his mind, Petitioner-Appellant was appropriately executing his duty as store security when he directed Ms. Jane Doe to leave.  She was defiant and resisted his efforts to remove her.  As can clearly be seen in the video (Exhibit F6, Counter 00:59 – 01:15), at least three times she either slapped at him or shoved back against him, and he incurred an injury which included bleeding when she struck his hand with her soda bottle, a fact that was corroborated by Port Authority Officer John Doe (Exhibit C, Page 108).

Petitioner-Appellant sincerely conveyed his perception of what occurred in his confrontation with Ms. Jane Doe to the Port Authority Officers who placed her under arrest.  It is always very difficult for any police officer to objectively evaluate the elements of a crime when he himself is the victim, and an error on the part of an officer forced into the position of doing so cannot be regarded as an intentional false statement, or even grossly negligent, premised upon nothing more than the fact that he got it wrong.

D. Factual Errors in Reporting

In her R&R (Exhibit B page 8), DCT Maldonado also made a factual error.  She wrote, “The female was ultimately arrested for assaulting (Petitioner-Appellant); however, the arrest was not processed after officers from Midtown South reviewed (Petitioner-Appellant’s) body-worn camera and had concerns about whether the video aligned with the details in the arrest paperwork.”  Port Authority Officer John Doe testified that initially Petitioner-Appellant was listed in the arrest paperwork as the arresting officer, and Officer John Doe as the assigned officer.  Supervisors at the Midtown South Precinct declined to process the arrest after looking at Petitioner-Appellant’s BWC video (see testimony of Sgt. John Doe, Exhibit C, Page 58, 63).   A dispute between the agencies ensued, and the NYPD supervisors refused to issue a Desk Appearance Ticket to Ms. Jane Doe.  This dispute resulted in the arrest being voided, not because there was no probable cause (according to Officer John Doe), but because it was necessary to change the designation of arresting officer from Petitioner-Appellant to Officer John Doe so that a Port Authority Supervisor could issue Ms. Jane Doe a Desk Appearance Ticket.  Officer John Doe then processed the arrest, although he testified that he did not know what ultimately happened to the criminal charge against Ms. Jane Doe (Exhibit C, Page 109 – 113).

Conclusion Regarding

Case No. 2021-23062

Again, in its discussion of what rises to the level of “substantial evidence,” the Court of Appeals in the case of Gramatan Avenue Associates v. State Division of Human Rights, 45 N.Y.2d 176 (1978) stated,

Marked by its substance its solid nature and ability to inspire confidence, substantial evidence does not rise from bare surmise, conjecture, speculation or rumor.

Additionally, the Court further stated (Id.),

In final analysis, substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably probatively and logically.

As to Charges Nos. 3 & 8 of Case No. 2021-23062, the NYPD has not proven by substantial evidence, according to its own standards, that Petitioner-Appellant had the intent to make a false statement or displayed gross negligence when he reported that he had been hit three times by Ms. Jane Doe during his altercation with her on January 12, 2021, and sustained an injury to his hand as a result.  DCT Maldonado failed to consider that the statement made to Port Authority Officers by Petitioner-Appellant was made “in the immediate aftermath of a stressful incident…or other traumatic event before the member had sufficient opportunity to reflect and recall details of the event.”

As to Charges No. 8 of Case No. 2021-23062, the NYPD has not proven by substantial evidence, that Petitioner-Appellant “wrongfully caused the arrest of an individual known to the Department for Assault in the Third Degree when said individual had not committed said crime.”  As set forth above, Petitioner-Appellant reasonably believed that he had been assaulted while attempting to affect an arrest for Disorderly Conduct.  The Finding of Guilty for Charges 3 & 8 of Case No. 2021-23062 should be reversed because the PC’s determination that Petitioner-Appellant is guilty of said Specifications is not supported by substantial evidence [see CPLR §7803(4)].

4. The Decision to Terminate

Petitioner-Appellant’s Employment for

The Charges He is Actually

Guilty of is a Measure of

Penalty or Discipline of Such

Severity That it Amounts to An

Abuse of Discretion

Mitigating Factors

Warranting Leniency

“Mitigating Factors” suggested by the Guidelines, (Addendum 1, page 13), include the following:

• The state of mind of the member of the service,
• Any extraordinary circumstances or hardships that may be relevant,
• Positive employment history,
• Acceptance of responsibility,
• Limited nature and extent of the consequences or harm caused by the violation,
• The potential for rehabilitation.

The State of Mind of Petitioner-Appellant,

The Extraordinary Circumstances and

Hardships Relevant to his Case,

And his Positive Employment History

Since his appointment to the NYPD in July of 2001, Petitioner-Appellant has served in assignments that put him in daily contact with the public.  Throughout his career, up until the incidents of the Winter of 2020-21, he has not been identified as discourteous or prone to the use of excessive force (Exhibit D, page 297-299).

To the extent he has stumbled, in 2019 and again in the Winter of 2020 – 21, he was impaired by the difficulties he was then encountering trying to live up to his obligations to his children and significant others.

In the Winter of 2020 – 21 Petitioner-Appellant was in a particularly dark place both personally and professionally.  Petitioner-Appellant testified that by the end of 2020 he was paying child support for the two children from his prior marriage.  One of these children, his 19-year-old son, is on the autism spectrum (Exhibit D, Page 230 – 231).  Petitioner-Appellant was also paying tuition, room and board for his eldest daughter at Manhattanville College, and was financially supporting the Complainant, who had no income, and her 13-year-old daughter, both of whom were living with him (Exhibit D, Page 243 – 245).

Petitioner-Appellant testified that he had been working in a special assignment in the NYPD, the Citi Feld Detail, which provided steady overtime when his child support obligation was initially calculated and set.  In 2013 he was transferred out of the Citi Feld Detail to a different assignment which resulted in a decline in his overtime and annual salary, but which did not result in a decrease in his child support obligation (Exhibit D, Page 229).  Petitioner-Appellant began to work “Paid Details” to supplement his income and maintain his ability to make his child support payments (Exhibit D, Page 249 – 250).  Petitioner-Appellant testified that in the Winter of 2020-21 the “Paid Details” had become very difficult and personally stressful.  The world was in the throes of the Covid 19 pandemic and quarantine, and employees at the drug stores where he was assigned were deeply concerned about enforcement of the mask-wearing mandate.  To compound the stress that was already attendant upon interactions with the public during this time, there was a profound anti-police sentiment stemming from the still recent murder of George Floyd (Exhibit D, Page 247 – 248).

In addition to the financial and professional stress that Petitioner-Appellant was suffering from, his personal life was in a state of chaos.

1. In March of 2020 Complainant and her 13-year-old daughter moved in with him and he undertook their financial support (Exhibit D, Page 236, 243 – 245).
2. In June of 2020 Complainant informed Petitioner-Appellant that she was pregnant, but that she had two other paramours who could potentially be the father (Exhibit D, Page 238).
3. The Complainant left Petitioner-Appellant’s residence in July of 2020, returning to the residence of one of her paramours, but then returned to live with Petitioner-Appellant in September of that year (Exhibit D, Page 240 – 243).
4. In July of 2020 Petitioner-Appellant was the subject of an official investigation stemming from Case No. 2020-22445, and in August of 2020 one of his daughters from his first marriage was hit by a car and hospitalized with a concussion (Exhibit B, Page 240-241).

During the winter of 2020 – 21, in addition to all the stress and exhaustion inherent in all of the factors listed above, Petitioner-Appellant was working between 68 to 70 hours per week between regular tours of duty and paid details and was only getting between four and six hours of sleep per night (Exhibit D, Page 248 – 249).

Petitioner-Appellant knew that it was improper to work a paid detail within three hours of his tour, and had been disciplined for doing so in 2019, but simply felt that he had no choice, that it was a matter of economic necessity (Exhibit D, Page 249, 334).

Acceptance of Responsibility,

Limited Nature and Extent of the

Consequences or Harm

Petitioner-Appellant has pled guilty to, and accepted responsibility for the following acts of misconduct:

1. Excessive Force: Case No. 2021-23066, Specification No. 4
2. Petitioner-Appellant pled guilty to using excessive non-deadly force against Jane Doe when he removed her from the Duane Reade store on January 12, 2021 (Exhibit D, Page 257 – 267). He accepts full responsibility for this misconduct and is remorseful but believes he has learned from the experience and that it will actually make him a better police officer going forward (Exhibit D, Page 275 – 276).
3. In mitigation for this offense, Ms. Jane Doe was not injured, and engaged in active resistance at the outset of the incident. Additionally, she was in violation of the Penal Law Offense of Disorderly Conduct and could have been lawfully arrested on that basis.

iii. Petitioner-Appellant acknowledged during his testimony that he failed to deescalate this situation and allowed his emotions to get the better of him, in part because of the stress he was under prior to the incident occurring, and in part from the stress of the incident itself (Exhibit D, Page 265).

1. According to the NYPD Guidelines (Addendum 1), the presumptive penalty for excessive non-deadly force with no injury is 20 penalty days.
2. Discourtesy and Offensive Language: Case No. 2021-23066, Specifications Numbers 1 & 9.
3. Petitioner-Appellant pled guilty to being discourteous to a male patron of the Duane Reade store on December 19, 2020, and to Jane Doe on January 12, 2021.
4. As stated above, he accepts full responsibility for this misconduct and is remorseful but believes he has learned from the experience and that it will actually make him a better police officer going forward (Exhibit D, Page 275 – 276)

iii. According to the NYPD Guidelines (Addendum 1), the presumptive penalty for offensive language is 20 penalty days.

3. Accessing Confidential Information Without Police Necessity, Case No. 2020-22445, Specification No. 2, Case No. 2021-23895, Specification No. 3.
4. Petitioner-Appellant pled guilty to making improper Department Computer Database inquiries for personal reasons.
5. According to the NYPD Guidelines (Addendum 1, page 49), the presumptive penalty for Accessing Confidential Information Without Police Necessity is 10 penalty days.

Potential for Rehabilitation

The Guidelines lists a set of goals (Addendum 1, page 7).  Included in the first of these goals is the aspiration of “rehabilitating the member of the service.”  Petitioner-Appellant was arrested, suspended without pay, evicted from his home, separated from the child he had embraced as his, modified and transferred to the Bronx Court Section, which itself was a form of punishment, all in August of 2021 (Exhibit D, Page 273, 293 – 295).  Notwithstanding his ordeal, Petitioner-Appellant was rated “Exceeds Standards” in his 2021 annual performance evaluation.  He has not abused sick leave, or been tardy since his transfer to the Bronx, and his enthusiasm towards his job has remained “good” (Exhibit D, Page 274).  Petitioner-Appellant testified that he has learned from the incidents that occurred in the Winter of 2020-21, stating, “I realized that I have to take a step back when I’m in these situations, and reassess what I’m observing, and take into account that I need to be more professional with my attitude, and try to adjust my mannerism when I’m dealing with the public…I have to be more patient and understanding with people when I’m dealing with them in situations”  (Exhibit D, Page 275 – 276).

Petitioner-Appellant is eligible to retire, and currently has over 21 years of service with the NYPD.  However, he is fighting to remain an officer with the NYPD because, as he testified, “I believe I can still serve the Department in an official capacity, and…guarantee public safety, take care of the needs and serving the public, and be an effective police officer if I was restored to full duty” (Exhibit D, Page 296 – 297).

Petitioner-Appellant believes it would benefit the NYPD to allow him to stay and continue his career as a police officer because, as he testified, “I believe the experience that I had, and the different units I worked in, and different precincts, I could be a valued asset of my abilities to take reports and administer…official duties of the Police Department with regards to handling enforcement of the law” (Exhibit D, Page 297).

FINAL CONCLUSION

In her introduction to the Guidelines, (Addendum 1, page 5), former Police Commissioner Sewell wrote, “It is also vital that we are as open and transparent about this process as possible, providing both the public and our officers with a clear understanding of what to expect when discipline is imposed in a particular case.  That is what the discipline matrix (Guidelines, Addendum 1) is all about” (emphasis added).  The Guidelines includes a set of goals, at page 7.  Included in the first goal is “rehabilitating the member of the service.”  Included in the third goal is “Providing reasonable notice of the standards by which conduct will be judged.”

Set forth prominently in the Guidelines, the Department Advocate bears the burden of proof, and “Preponderance of the Evidence” is the standard (Addendum 1 page 10).  Unfortunately, these standards were not adhered to in the Hearing that was held for Petitioner-Appellant.

Police Officers derive their right to a “hearing upon stated charges” from Section 75(1) of the New York State Civil Service Law.  To maintain their dedication to the NYPD and the City it serves, Officers must be confident when they exercise this right that there is a burden of proof, and standards of proof, and that these procedural obligations will be adhered to by the Department Trial Commissioner and the Department Advocate.

The finding of Guilty for Case No. 2020-22445, in which it was found that Petitioner-Appellant “caused annoyance or alarm to his ex-girlfriend” should be reversed because even if true, this was purely a personal matter.  It was an abuse of discretion to prosecute it pursuant CPLR §7803(3), and the evidence that it constitutes “conduct prejudicial to the good order, efficiency or discipline of the Department” does not meet the level of substantial evidence required by CPLR §7803(4).

The finding of Guilty for Case No. 2021-23895, in which it was found that Petitioner-Appellant “engaged in a verbal and physical altercation with an individual… causing an injury,” should also be reversed because the evidence provided by the only witness to the alleged incident does not meet the substantial evidence standard as required by CPLR §75(1)  due to the witness’s complete lack of credibility.

The finding of Guilty for Case No. 2021-23062, in which it was found that Petitioner-Appellant “wrongfully caused inaccurate entries in … Police Department records about the facts leading to an arrest,” and “wrongfully caused the arrest of an individual… for Assault in the Third Degree when said individual had not committed said crime,” should also be reversed because the evidence relied upon, for all of the reasons set forth above, does not meet the level of substantial evidence required by CPLR §7803(4).

The Decision to terminate Petitioner-Appellant’s employment should be reversed because it is so severe it amounts to an abuse of discretion pursuant to CPLR §7803(3).

____________________________

MICHAEL F. DAILEY, ESQ.

Attorney for Defendant

One Riverdale Avenue

Mailbox Eleven

Bronx, NY 10463

(Office) 718-543-0100

(Cellular) 914-620-5621

(email ) mikedaileylaw@gmail.com