MICHAEL F. DAILEY
ATTORNEY AT LAW
One Riverdale Avenue
Suite One, Mailbox Eleven
Bronx, NY 10463
Office: (718) 543-0100
Cellular: (914)620-5621
Email: mikedaileylaw@gmail.com
Service by Email or Facsimile
Not Accepted
January 12, 2023
Hon. Keechant L. Sewell
Police Commissioner
New York Police Department
One Police Plaza
New York, NY 10038
Re: Police Officer John Doe
Case Numbers 220-22445, 2021-23062, & 2021-23895
Dear Commissioner Sewell,
I represent Police Officer John Doe. At a Trial and Mitigation Hearing on October 27th and 28th, 2022, Officer John Doe pled not guilty to several of the charges that were pending against him. Officer John Doe pled guilty to the remaining charges that were pending and sought to mitigate his penalty for those.
I am submitting these comments pursuant to Fogel v Board of Education to explain why Deputy Commissioner – Trials (“DCT”) Maldonado erred when she found Officer John Doe guilty of the charges he pled not guilty to, and why a penalty of dismissal is inappropriate for the charges to which he pled guilty.
Officer John Doe pled not guilty to the following Charges (summarized):
Disc. Case No. 2020-22445:
Specification 1: On or about and between March 10, 2020 and March 11, 2020, while off-duty… wrongfully caused annoyance or alarm to his ex-girlfriend.
Disc. Case No. 2021-23895:
Specification 1: On or about and between August 1, 2021 and August 4, 2021, while off-duty, engaged in a verbal and physical altercation with an individual known to the Department, causing an injury.
Specification 2: DCT Maldonado found Officer John Doe “Not Guilty” of this charge and specification.
Disc. 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.
Specification 11: On or about January 12, 2021, wrongfully failed or neglected to prepare entries in a Threat, Resistance or Injury (T.R.I.) Interaction Report.
Specification 12: On or about January 12, 2021, wrongfully failed to notify a Patrol Supervisor, any other Department supervisor, or the Paid Detail Unit about a use of force, an arrest, or an injury to himself.
Analysis of Charges Wherein
Officer John Doe Pled Not Guilty
1. Analysis of
Disc. Case No. 2020-22445
Specification No.1
This analysis of the Charges and Specifications filed against Officer John Doe, and of DCT Maldonado’s Report and Recommendation pertaining thereto, will be conducted in a different order than that in the Report and Recommendation.
The first charge to be commented upon will be Specification No.1 of Disc. Case No. 2020-22445, in which it is alleged that on or about and between March 10, 2020 and March 11, 2020, while off-duty… (Officer John Doe) wrongfully caused annoyance or alarm to his ex-girlfriend (“Complainant”).
Officer John Doe does not take exception to the analysis of the events of March 10, 2020 – March 11, 2020 (“March 10th”), provided by DCT Maldonado in her Report and Recommendation. He does take exception, however, to 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.” [Report and Recommendation Page 18 (“R&R 18”).
In her analysis, 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” [R&R 17].
Thus, DCT Maldonado recognizes that the conduct charged in the March 10th incident does not rise to the level of Harassment, which is a “Family Offense,” and that the Department did not charge Officer John Doe with a “Family Offense.”
DCT Maldonado notes in her report that the “Complainant filed and signed a ‘DIR’ 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.’ (Dept. Ex. 3: Tr. 53-55, 87-88).”
Officer Green, the officer who signed the DIR in evidence, was interviewed by IAB Sergeant Blue who testified at the Department Trial. According to Sgt. Gray, Officer Green 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 (Tr. 85 – 92).
Further, Sgt. Gray interviewed the Complainant and she did not indicate to him that she was fearful as a result of this incident, and she did not indicate to him whether Officer John Doe is violent and constantly jealous of her (Tr. 93). The Complainant did not testify at the Department Trial, and there is no evidence that the Complainant had anything to do with the DIR cited by DCT Maldonado, much less that it is a true or reliable record of what happened on March 10th.
DCT Maldonado goes on to note that “It is uncontested that the Complainant subsequently moved in with Respondent (Tr. 236)”.
The Conduct Alleged Does Not
Rise to the Level of Conduct
Contrary to the Good Order and
Discipline of the Department
It is axiomatic that the private and intimate affairs of members of the service must rise to a 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 has been met can be found in the NYPD Disciplinary System Penalty Guidelines, Effective 2/15/22 (The “Guidelines”). At page 35 of the Guidelines “Domestic Violence Incidents” warranting Department discipline are defined as “Physical Acts of Domestic Violence/Family Offense.” At page 36 of the Guidelines, in 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.”
It is not alleged, much less proven, that Officer John Doe engaged in a physical act of domestic violence on the night of March 10th, and DCT Maldonado noted that he did not commit the Family Offense of Harassment as that term is defined in the Penal Law. It is not alleged much less proven that Officer John Doe made any verbal threats or committed any other Family Offense as that term is defined in Patrol Guide procedure 208-36, which is referenced in Footnote No. 62 at page 35 of the Guidelines.
The Guidelines also reference the “Commission to Combat Police Corruption, Eighteenth Annual Report of the Commission, August 2017” (The “Report”). At page 39 of the Report, the definition of “Domestic Violence” is provided as “Misconduct involving a member of the service and a family member or someone with whom the member of the service had a present or past intimate familial relationship. This category includes verbal disputes requiring the intervention of law enforcement, harassment, physical assaults, stalking and violations of protective orders.”
As stated above, Officer John Doe was not charged with nor proven to have committed Harassment, nor is he charged or proven to have committed the Family Offenses of “physical assaults, stalking and violations of protective orders.” Thus, the only question is, assuming arguendo that the Complainant was involved in the preparation of the DIR in evidence as Department’s Exhibit 3, whether that is sufficient “intervention of law enforcement” to make the incident a matter to be considered for Department Discipline.
Patrol Guide Procedure No. 208-36, which is the general Department procedure for “Family Offenses/Domestic Violence,” in the “Notes” following step “18”, states that a DIR “WILL NOT be prepared for unfounded domestic incident occurring within New York City”.
However, Patrol Guide Procedure No. 208-37, which is the procedure for “Family Offenses and Domestic Violence involving Uniformed and Civilian Members of the Service,” at procedural step “4(a)”, states that a DIR will be prepared in all cases” (emphasis added).
Thus, according to Department procedure, if a Member of the Service is involved in a “Domestic Incident” (which does not appear to be defined in the Patrol Guide), a DIR is to be prepared whether the Domestic Incident is founded or not. It follows then that the mere preparation of a DIR, without more, does not qualify as “Police Intervention” justifying the imposition of Department Discipline, because it is not conclusive evidence that the domestic incident is founded.
It is respectfully submitted that DCT Maldonado’s reference to the Merriam-Webster’s Dictionary has no bearing on whether “annoyance or alarm”, standing alone, qualify for the imposition of Department discipline. If it did, every MOS who annoyed or alarmed a spouse or significant other would be subject to Department discipline, a ridiculous imposition on members of the service and a gross overreach by their employer.
Conclusion regarding
Disc. Case No. 2020-22445
Accordingly, Specification No.1 of Disc. Case No. 2020-22445 should be dismissed as not properly specifying prohibited conduct by a member of the service. In the alternative, Officer John Doe should be held Not Guilty of engaging in conduct prejudicial to the good order, efficiency or discipline of the Department on or about and between March 10, 2020 and March 11, 2020.
2. Analysis of
Disc. Case No. 2021-23895
Specification 1
Specification One of Disc. Case No. 2021-23895 alleges that on or about and between August 1, 2021 and August 4, 2021, while off-duty, Officer John Doe engaged in a verbal and physical altercation with an individual known to the Department, causing an injury.
It should first be noted that the “individual known to the Department” referenced in Disc. Case No. 2021-23895 is the same “ex-girlfriend” referenced in Disc. Case No. 2020-22445 (discussed above). Officer John Doe 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 and Specification fails utterly in proving otherwise.
Credibility of the Complainant
In her Report and Recommendation, DCT Maldonado expends considerable effort explaining the challenges inherent in making credibility determinations in “a case such as this where two individuals provide starkly different versions of the same events.” (R&R 22). Despite this good start, DCT Maldonado fails to follow through with a careful and clearly articulated explanation for why she finds the complainant credible. In the course of her weak analysis, she fails to address or glosses over the following deficiencies in the Complainant’s testimony:
- The Complainant failed to appear in the trial room to testify under oath and be subject to cross examination regarding her allegations against Officer John Doe.
- In lieu of live sworn testimony subject to the crucible of cross examination, DCT Maldonado relied upon a body camera video of a sympathetic interview conducted in the Complainant’s own home by a patrol supervisor and a duty captain.
- DCT Maldonado fails to adequately address the motivations the Complainant had for giving false information about Officer John Doe while in the safety and comfort of her own home.
- DCT Maldonado fails to address the Complainant’s sophisticated knowledge of the internal workings of the Department and her capacity to manipulate and exploit that knowledge to her advantage.
- 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, and the third to the Department Advocate’s Office.
- DCT Maldonado fails to address the fact that the Complainant’s lack of credibility was flagged by the Queens DA’s Office as a basis for its dismissal of the criminal complaint that was signed by the Complainant.
- 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.
- DCT Maldonado confuses her role as trier of fact with that of an expert in the “Indicia of Domestic Violence Victimhood.”
- DCT Maldonado shifts the burden of proof from the Department to Officer John Doe.
A. Complainant’s Absence at the
Department Trial
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” (R&R 22). She goes on to note that “traditional credibility factors such as logic, consistency, corroboration, bias and interest” must be applied in assessing “Complainant’s statement and Respondent’s testimony” (R&R 23).
DCT Maldonado nonetheless fails to calibrate her application of the “traditional credibility factors” to account for the absence of the Complainant at the Department Trial, 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. Blue was the patrol supervisor who responded to the residence that was shared by the Complainant and Officer John Doe, and who took the initial complaint. Sgt. Blue’s body worn camera (“BWC”) video of his interview with the Complainant is in evidence as Department’s Exhibit 16.
At 14:33:30 – 14:34:20 (as per the counter in the top right corner of the video screen of Department’s Exhibit 16), Sgt. Blue can be heard encouraging the Complainant to prepare the Domestic Incident Report that is in evidence as Department’s Exhibit 19 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 15:12:00 – 15:12:21, Sgt. Blue 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 Blue’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 and then asserts the violence has become worse in the past six months (Dept. Ex. 16 at 1:24:30 – 1:25:58).
It is clear throughout the interview that the Complainant is passively following Sgt. Blue’s lead, and merely filling in blanks offered to her. It should also be noted that during the interview Officer John Doe was not present.
While Sgt. Blue may have been well-meaning during his interview of the Complainant, an appropriate assessment of the Complainant’s credibility requires careful consideration of the encouragement and cues that she received during the interview. In her application of the “traditional credibility factors” of “bias and interest” of the Complainant, DCT Maldonado failed to conduct this analysis of the credibility of Complainant’s statement.
C. Complainant’s Motivations
For Giving False Information
About Officer John Doe
Officer John Doe, the only witness with actual knowledge of the circumstances 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 and began to cohabitate with him in March of 2020 (Tr. 233 – 236, 239). In June of 2020 the Complainant informed Officer John Doe she was pregnant, and that two other men could potentially be the father of the child (Tr. 238).
On July 12, 2020, the Complainant vacated Officer John Doe’s apartment and returned to live with her former boyfriend, Auxiliary Police Officer John Doe whom she identified as a potential father of her new child (Tr. 240). In September of 2020 the Complainant moved back in with Officer John Doe (Tr. 242-243).
On January 16, 2021, the Complainant gave birth to her child, and named him after Police Officer Red, whom she identified as another potential father. Nonetheless, Officer John Doe 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 (Tr. 276 – 280, 284).
Officer John Doe 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 has been on modified assignment ever since, and all contact between Complainant’s newborn child and him was severed and has remained severed ever since (Tr. 293 – 295).
As stated above, a threshold must be met before the Department interjects itself into the personal and intimate affairs of Members of the Department. The wisdom of Officer John Doe’s relationship with the Complainant is not the issue. Rather, as to the necessary analysis of the credibility of the Complainant, the issue is whether she had potential motivations to give false statements to harm Officer John Doe, exact revenge, or extract economic or other advantage.
The undisputed dysfunctional nature of the relationship, and the ruthless efficiency with which the Complainant ended it for both her child and herself, and also secured possession of the apartment that up until then had been shared, all implicate the “traditional credibility factors such as logic… bias and interest” that must be applied in assessing “Complainant’s statement” (R&R 23).
An appropriate assessment of the Complainant’s credibility requires careful consideration of Complainant’s motivations to make false allegations against Officer John Doe. In her application of the “traditional credibility factors” of “bias and interest” of the Complainant, DCT Maldonado failed to conduct this analysis of the credibility of Complainant’s statement.
D. Complainant’s sophisticated knowledge
of the internal workings of the Department
Auxiliary Police Officer White is the Member of the Service that the Complainant was living with when Officer John Doe first went to speak with her in March of 2020 (Tr. 42 – 44), and whom the Complainant returned to when she left Officer John Doe in July of 2020 (Tr. 240).
Police Officer Yellow, who testified on behalf of the Department, is the first person who reported to the Department an “alarming message” (Tr. 118-119) he received from the Complainant in August of 2021 which led to the investigation of Officer John Doe. PO DeJesus testified that he became acquainted with the Complainant via a “Facebook Group” that was frequented by “a lot of members of the service.” PO Yellow also testified that he himself had an “intimate incident” with the Complainant about a month before he called IAB on her behalf. (Tr. 117-118, 125).
Police Officer Red is the Member of the Service the Complainant named her child for in January of 2021, and who was at the hospital at the time of the child’s birth (Tr. 278 – 279).
Thus, the Complainant had numerous sources with knowledge of the Department to counsel and advise her regarding the impact that would be suffered by Officer John Doe 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 sources Complainant had for effective false allegations against Officer John Doe. In her application of the “traditional credibility factors” of “bias and interest” of the Complainant, DCT Maldonado failed to conduct this analysis of the credibility of Complainant’s statement.
E. Complainant Gave Three (3)
Different Dates of Occurrence
For the Bruise to her Leg
During his testimony (Tr. 146 – 147), Sgt. Blue 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 2nd, right?
A: Correct.
Q: And based upon that information, the incident occurred on August 1st?
A: Yes.
Q: That is what you put in your paperwork right?
A: That’s what I was informed.
Q: And the duty captain who signed it, is that right?
A: Yes.
Consistent with Sgt. Blue’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, a careful examination of Department’s Exhibit 16, the body worn camera of Sgt. Blue, 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. Blue inquires, “So August first?” and the Complainant confirms, “Yeah.”
After her interview with Sgt. Blue on August 25, 2021, Complainant prepared a Domestic Incident report, in evidence as Department’s Exhibit 19, in which she listed the date of occurrence of the alleged bruise as “Aug 1st”.
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 (Department’s Exhibit 20), a discrepancy of two days.
However, Officer John Doe then provided the Queens District Attorney with documentary proof that he was travelling in the Midwest between August 1st and August 4th, 2021, as was stipulated by the Department[1]. This contributed to the dismissal of the criminal case by the Queens District Attorney’s Office who noted “one of the reasons why they dismissed the case was that the credibility of the complainant victim came into question” (Tr. 181).
The fact that the bruise could not have occurred on August 1st or August 3rd because Officer John Doe was not in New York until August 4th led the Department to change the alleged time of occurrence a second time to “about or between August 1, 2021 and August 4, 2021” (see Charges and Specifications, Disc. Case No. 2021-23895).
However, if the meta data on Complainant’s phone was accurate and reliable when she carefully looked at it while being recorded by Sgt. Blue’s BWC, the bruise could not have been caused on August 4th because it was photographed on August 2nd.
In her Report and Recommendation, DCT Maldonado brushes away these discrepancies stating, at 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 many problems with this stunningly cavalier attitude toward the burden of proof and the sufficiency of the Department’s evidence is that it recognizes no limit to the depth of the Department’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 trial commissioner feels like it is at any time, under any circumstance. This is arbitrary and capricious, in derogation of the standards clearly set forth in the Disciplinary Guidelines, in the CCPC Report, and in Article 78 § 7803(3) of the CPLR.
According to DCT Maldonado’s own Report, “the tribunal must apply the traditional credibility factors such as …CONSISTENCY” (emphasis added). DCT Maldonado failed to address this lack of consistency in the reports of the date of occurrence of Complainant’s bruise in her analysis of the credibility of Complainant’s statement.
F. Doubts About Complainant’s Credibility
Raised by the Queens DA’s Office
Sgt. Purple was the “lead investigator” of Complainant’s bruise (Tr. 169 – 170). Sgt. Purple testified that the Complainant’s allegations regarding her bruise led to the filing of a criminal complaint by the Queens District Attorney’s Office which was later dismissed (Tr. 181). Sgt. Purple 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” (Tr. 181).
Sgt. Purple testified that he conducted eight (8) interviews of the Complainant, none of which were recorded, during which it was “determined (that) when Police Officer John Doe came back from Chicago that was the date of the incident, and it was changed from August 1st to August 4th” (Tr. 178-179).
Despite the fact that Officer John Doe could not have caused the alleged bruise on the first date reported by the Complainant, nor the second date reported by the Complainant, and despite the fact that the Queens District Attorney’s Office dismissed their criminal case at least in part due to the Complainant’s lack of credibility, Sgt. Purple completely failed to investigate this red flag over his investigation as revealed during cross examination:
Tr. 182
Q: Did you discuss with (Complainant) the fact that Officer John Doe was not in New York City at the time that she first reported this?
A: No.
Tr. 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 2nd.
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 2nd?
A: No.
Q: Why not?
A: I just took her word that those photos were taken on August 2nd.
Tr. 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.
Tr. 185
Q: Did it occur to you, when you discovered that the date she said this happened Officer John Doe 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.
Tr. 186
Q: So what did you do to reconcile this discrepancy in the report that was made by the complainant?
A: Nothing.
Tr. 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.
Tr. 195
Q: You interviewed Police Officer John Doe, 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.
Tr. 202 – 206
Q: You did a worksheet that says ADA (of the Queens District Attorney’s Office) 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: I’m talking about this specific case. I’m not interested in all the times you talk to the ADAs…First of all, 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 Police Officer John Doe?
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.
Notwithstanding the unexplained and unprobed discrepancies in the Complainant’s accounts of when the bruise occurred, and the contortions and distortions of Sgt. Purple in his one-sided imbalanced and incurious investigation designed to circumvent Officer John Doe’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” (R&R 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” her.
G. The Conflicting Accounts
And Overall Implausibility of how the
Complainant Sustained Her Bruise
There are two versions of how Officer John Doe allegedly caused a bruise to the Complainant:
The first version is reflected in the DIR prepared by the Complainant (Department’s Exhibit 19), and in the BWC video (Department’s Exhibit 16, Counter 1:04 – 1:07), and in the UF 49 prepared by the Duty Captain (Defendant’s Exhibit B) in which the Complainant claims that while sitting on the couch discussing a trip to Texas, she got up to leave and Officer John Doe 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 the kind of bruise that would still be visible to the naked eye weeks later.
The second version is contained in the criminal complaint that was filed by the Queens District Attorney’s Office the next day (Department’s Exhibit 20). This version contains the following embellishment: “Defendant grabbed the Deponent’s right calf, squeezed and dug his hand into her calf, causing substantial pain (emphasis added).” As cited above, the Queens District Attorney’s Office later dismissed the complaint citing questions regarding the credibility of the Complainant.
In her Report and Recommendation, 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 R&R 20:
She had been laying on the couch as she discussed this with Respondent. At one point she got up to walk away because she wanted to end the conversation. She told the sergeant that as she rose, Respondent “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. Blue’s BWC footage and is not reflected in the DIR prepared by the Complainant, nor the UF 49 prepared by the Duty Captain. The word “squeeze” appears for the first and only time in the criminal complaint filed the next day.
This discrepancy is not mere semantics because a “squeeze” indicates intent, which is an element of the Penal Law crime of Assault if the intent is to cause an injury and is also an element of the Penal Law offense of Harassment if the intent is to harass, annoy, or alarm. Both assault and harassment are Family Offenses, and they are “Physical Acts of Domestic Violence”, both of which are delineated in the Disciplinary Guidelines as categories of misconduct.
A mere “grab” could possibly satisfy the culpable mental state of recklessness, but that would require that Officer John Doe 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 Officer John Doe grabbed the Complainant’s leg to prevent her from getting up off the couch and leaving, in the fashion described in the BWC video (Department’s Exhibit 16), 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. This is another failure of the tribunal 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 Department’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 Disciplinary Guidelines, at page 6 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 35 of the Disciplinary 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 Report and Recommendation, 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” (R&R 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 Disciplinary Guidelines pages 6-7).
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 (Department’s 16):
- “She appears nervous, almost skittish, at the outset, avoiding eye contact, looking toward the front door, and only answering Sergeant Blue’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 Respondent.”
- “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 Respondent and appears concerned about potential consequences for him. For example, she voluntarily admits to the sergeant that she was unfaithful to Respondent.”
DCT Maldonado is not relying here on the words Complainant said, she’s relying on the way Complainant looked while saying them. 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.
As stated above, the Complainant did not present herself in court, was not sworn, and was not questioned by opposing counsel. Additionally,
- The Department did not offer any evidence to show Sgt. Blue 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 any witness, properly qualified as an expert 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. Blue’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, 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 conjecture and speculation. This is entirely improper.
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 Department. She has bridged gaps in the Department’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 Officer John Doe
As stated above, in the Disciplinary Guidelines at page 6 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 Officer John Doe’s testimony as offering “little more than a blanket denial of any physical violence and an assessment that the relationship was ‘fine.’” (R&R 24) DCT Maldonado eviscerates this rule.
Further, DCT Maldonado imposes an impossible burden on Officer John Doe. 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 Officer John Doe’s evidence, the Department stipulated he was in the Mid-West on both the first and second day Complainant claims it happened. The Department conformed its charge to the day he returned.
This is not a “blanket denial.” This is an alibi. The fact that the Department gerrymandered its Specification to circumvent that alibi actually corroborates it.
Additionally, Officer John Doe 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 (Tr. 289 – 293).
While there may have been a legitimate issue regarding the weight to be accorded this testimony, it was not appropriate to deny John Doe, a respondent charged with something that is 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
Disc. Case No. 2021-23895
In the case of Rinaldi & Sons, Inc. v Wells Fargo Alarm Service, Inc., 383 N.Y.S.2d 256, 259, 39 N.Y.2d 191 (1976), the New York Court of Appeals stated:
Plaintiff has the burden of proving his case by a fair preponderance of the credible evidence. If, at the close of the proofs, the evidence as a matter of logical necessity is equally balanced, plaintiff has failed to meet his burden and the cause of action is not made.
As stated by DCT Maldonado in her Report and Recommendation, at 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 breadth and scope of all the infirmities corrupting the credibility of Complainant’s hearsay evidence it cannot be said that, as a matter of logical necessity, the evidence is NOT balanced, and the imbalance tilts in favor of the Department.
On the contrary, logical necessity requires the conclusion that the Department failed to prove its case by a Preponderance of the Evidence. Accordingly, Officer John Doe should be found NOT GUILTY of Specification One of Disciplinary Case No. 2021-23895.
3. Analysis of
Disc. 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.
Specification 11: On or about January 12, 2021, wrongfully failed or neglected to prepare entries in a Threat, Resistance or Injury (T.R.I.) Interaction Report.
Specification 12: On or about January 12, 2021, wrongfully failed to notify a Patrol Supervisor, any other Department supervisor, or the Paid Detail Unit about a use of force, an arrest, or an injury to himself.
While Officer John Doe maintains his innocence for Specifications 11 and 12 of Disciplinary Case No. 2021-23062, as reflected in the record of his Department Trial, he will not contest the findings of DCT Maldonado on these counts.
With regard to Specifications 3 and 8, Officer John Doe is not guilty of causing inaccurate entries in Department or Port Authority Police Department 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
As an initial matter, Penal Law Section 250.20, 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:
- He engages in fighting or in violent, tumultuous or threatening behavior; or
- He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.
While on “Paid Detail,” Officer John Doe approached Ms. Jane Doe on January 12, 2021, in the Duane Reade drug 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 Covid 19 pandemic (Tr. 258 – 260).
As such, 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. Accordingly, Officer John Doe was completely within his authority to place her under arrest for Disorderly Conduct.
Further, regardless of whether Officer John Doe employed excessive non-lethal force, it is clear from the BWC video (Department Exhibit 6, Counter 00:59 – 01:15) that Ms. Jane Doe resisted Officer John Doe’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, Officer John Doe 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 Disciplinary Guidelines, at page 31, 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 subjects physical, mental or emotional condition at the time the statement is made.”
In Footnote No. 58 on page 31, 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 33, 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. Officer John Doe’s Lack
Of Intent to Make a False
Statement, and Lack of
Gross Negligence to make
An Inaccurate Statement
During his testimony, beginning at Tr. 261, Officer John Doe identified on the BWC video (Department Exhibit 6, 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 will be set forth in greater detail below, Officer John Doe 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 Department’s Exhibit 6 reveals that the confrontation with Ms. Jane Doe was traumatic for Officer John Doe, and that he did not have time to reflect upon it before he reported to Port Authority Police Officers that Ms. Jane Doe assaulted him.
In his mind, Officer John Doe 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 (Department Exhibit 6, 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 Police Officer (Tr. 108).
Officer John Doe sincerely conveyed his perception of what occurred in his confrontation with Ms. Jane Doe to the Port Authority Police 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.
Factual Errors in Reporting
In her Report and Recommendation, DCT Maldonado also made a factual error. At page 8 she writes, “The female was ultimately arrested for assaulting Respondent; however, the arrest was not processed after officers from Midtown South reviewed Respondent’s body-worn camera and had concerns about whether the video aligned with the details in the arrest paperwork.”
Port Authority Police Officer Brown testified that initially Officer John Doe was listed in the arrest paperwork as the arresting officer, and Officer Brown as the assigned officer. Supervisors at the Midtown South Precinct didn’t want to process the arrest after looking at Officer John Doe’s BWC video (see testimony of Sgt. Gray, Tr. 58, 63). This apparently resulted in a dispute between the agencies, and a refusal by the NYPD supervisor 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 Brown), but because it was necessary to change the designation of arresting officer from Officer John Doe to Officer Brown so that a Port Authority Police Supervisor could issue Ms. Jane Doe a Desk Appearance Ticket. Officer Brown then processed the arrest, although he testified that he did not know what ultimately happened to the criminal charge against Ms. Jane Doe (109 – 113).
Standard of Proof
As stated above, in the case of Rinaldi & Sons, Inc. v Wells Fargo Alarm Service, Inc., 383 N.Y.S.2d 256, 259, 39 N.Y.2d 191 (1976), the New York Court of Appeals stated:
Plaintiff has the burden of proving his case by a fair preponderance of the credible evidence. If, at the close of the proofs, the evidence as a matter of logical necessity is equally balanced, plaintiff has failed to meet his burden and the cause of action is not made.
As to Specifications Nos. 3 & 8 of Disc. Case No. 2021-23062, the Department has not proven by a fair preponderance of the evidence that Officer John Doe 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 Police Officers by Officer John Doe 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.” Accordingly, Officer John Doe should be found not guilty of these charges and specifications.
Mitigating Factors
Warranting Leniency
“Mitigating Factors” suggested by the Disciplinary Guidelines, at page 9, 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 Officer John Doe,
The Extraordinary Circumstances and
Hardships that are Relevant to his Case,
And his Positive Employment History
Since his appointment to the NYPD in July of 2001, Officer John Doe 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.
To the extent he has stumbled, in 2019 and again in the Winter of 2020 – 21, his handicap has always been the difficulties he encountered trying to live up to his obligations to his children and significant others. In the Winter of 2020 – 21 Officer John Doe was in a particularly dark place both personally and professionally.
Officer John Doe 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 (Tr. 230 – 231). Officer John Doe 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 (Tr. 243 – 245).
Officer John Doe testified that he was working the Citi Field Detail which provided steady overtime when his child support obligation was calculated and set. In 2013 he was transferred from the Citi Feld Detail to Queens North Taskforce which resulted in a decline in his overtime and annual salary, but not a decrease in his child support obligation (Tr. 229). Officer John Doe began to work “Paid Details” to supplement his income and maintain his ability to make child support payments (Tr. 249 – 250).
Officer John Doe testified that in the Winter of 2020 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 recent murder of George Floyd (Tr. 247 – 248).
In addition to the financial and professional stress that Officer John Doe was suffering from, his personal life was in a state of chaos. In March of 2020 Complainant and her 13-year-old daughter moved in with him and he undertook their financial support (Tr. 236, 243 – 245). In June of 2020 Complainant informed Officer John Doe that she was pregnant, but that she had two other paramours who could potentially be the father (Tr. 238). The Complainant left Officer John Doe’s residence in July of 2020, returning to the residence of one of her paramours, but then returned to live with Officer John Doe in September of that year (Tr. 240 – 243). In July of 2020 Officer John Doe was the subject of an official investigation stemming from Disciplinary 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 (Tr. 240-241).
During the winter of 2020 – 21, in addition to all of the stress and exhaustion inherent in all of the factors listed above, Officer John Doe 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 (Tr. 248 – 249). Officer John Doe 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 (Tr. 249, 334).
Acceptance of Responsibility,
Limited Nature and Extent of the
Consequences or Harm
Officer John Doe has pled guilty to, and accepted responsibility for the following acts of misconduct:
Excessive Force: Case No. 2021-23066, Specification No. 4
Officer John Doe pled guilty to using excessive non-deadly force against Jane Doe when he removed her from the Duane Reade drug store on January 12, 2021 (Tr. 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 (Tr. 275 – 276).
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.
Officer John Doe 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 (Tr. 265). The presumptive penalty for excessive non-deadly force with no injury is 20 penalty days.
Discourtesy and Offensive Language: Case No. 2021-23066, Specifications Nos. 1 & 9.
Officer John Doe pled guilty to being discourteous to a male patron of the Duane Reade drug store on December 19, 2020, and to Jane Doe on January 12, 2021. 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 (Tr. 275 – 276) The presumptive penalty for offensive language is 20 penalty days.
Accessing Confidential Information Without Police Necessity, Case No. 2020-22445, Specification No. 2, Case No. 2021-23895, Specification No. 3.
Officer John Doe pled guilty to making improper Department Computer Database inquiries for personal reasons. He recognizes that there is no valid excuse for this misconduct and is prepared to accept the appropriate penalty.
Potential for Rehabilitation
The Guidelines lists a set of goals, set forth at page 3. Included in the first of these goals is the aspiration of “rehabilitating the member of the service.”
Officer John Doe 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 in August of 2021. He testified that he considers the transfer to the Bronx a form of punishment (Tr. 273, 293 – 295).
Notwithstanding, Officer John Doe 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” (Tr. 274).
Officer John Doe 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” (Tr. 275 – 276).
Officer John Doe is eligible to retire, and currently has over 21 years of service with the Department. 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.” Officer John Doe 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.”
Final Conclusion
In her introductory letter to the Guidelines, dated February 10, 2022, Commissioner Sewell writes, “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 is all about” (emphasis added).
The Guidelines also includes a set of goals, set forth at page 3. Included in the first goal is the “rehabilitating (of) the member of the service.” Included in the third goal is the provision of “reasonable notice of the standards by which conduct will be judged.”
Foremost among the “standards” referenced in the Guideline’s goals, the Department Advocate bears the burden of proof, and “Preponderance of the Evidence” is the standard of proof (Guidelines page 6). These standards were not adhered to in the Department Trial that was held for Officer John Doe.
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 Department 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 Trial Commissioner and the Department Advocate.
This is part of the contract the weight of which officers bear when they don the City’s shield and venture out into harm’s way. If the Department shirks the weight of these obligations, the contract will be rightfully regarded as illusory.
In the conclusion of her introductory letter to the Guidelines, Commissioner Sewell writes, “The NYPD is building an effective, fair and transparent discipline system.” Officer John Doe is relying upon that fairness. He is prepared to incur appropriate discipline for the misconduct he committed. He is prepared to go forward a wiser and better police officer with work left to do in the service of the people of New York City.
Respectfully submitted,
_________________________
Michael F. Dailey, Esq.
Attorney for
Police Officer John Doe
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