LAW OFFICE OF
MICHAEL F. DAILEY, P.C.
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
Hon. Edward A. Caban
Police Commissioner
New York Police Department
One Police Plaza
New York, NY 10038
Re: Sergeant John Doe
Case Number 2022-27051
Dear Commissioner Caban,
I represent Sergeant John Doe. At a Mitigation Hearing on October 2nd, 2023, Sgt. John Doe pled guilty to the charges that were pending and sought to mitigate his penalty. The jurist who presided over the Mitigation Hearing was the Hon. Paul M. Gamble, Sr., Assistant Deputy Commissioner (“ADC Gamble”).
The Charges and Specifications to Which
Sgt. John Doe Pled Guilty
The Department charged, and Sgt. John Doe pled guilty to the following Charges and Specifications:
- Said Sergeant John Doe, while off-duty and assigned to the 32 Precinct, on or about August 27, 2022, engaged in conduct prejudicial to the good order, efficiency or discipline of the Department, to wit: Said Sergeant John Doe engaged in a physical altercation with an individual known to the Department (As amended).
A.G. 304-06, Page 1, Paragraph 1 PROHIBITED CONDUCT
- Said Sergeant John Doe, while off-duty and assigned to the 32 Precinct, on or about August 27, 2022, engaged in conduct prejudicial to the good order, efficiency or discipline of the Department, to wit: Said Sergeant John Doe provided false information to Weehawken Police Officers after an off-duty incident (As added).
A.G. 304-06, Page 1, Paragraph 1 PROHIBITED CONDUCT
Point of Contention at Mitigation Hearing
Although as stated above, Sgt. John Doe pled guilty to the Charges and Specifications served upon him by the Department Advocate’s Office, there remained a dispute with the Department over the meaning of the term “physical altercation” contained in Charge and Specification number 1 as it pertained to the facts of what transpired on August 27, 2022.
Sgt. John Doe, as the substance of his guilty plea, testified that while struggling with his girlfriend because she was attempting to take his phone he pushed her, which along with the uneven surface where they were struggling, contributed to her falling to the ground. The Department, while accepting Sgt. John Doe’s guilty plea, rejected his account of what transpired, and instead relied upon the erroneous testimony of Weehawken Sergeant Green (“Sgt. Green”) who claimed to have observed Sgt. John Doe put his girlfriend in a headlock (T91-92), and then grab her by the throat and push her down (T92-93).
Accordingly, after Sgt. John Doe testified to the events on August 27, 2022 that led to him being charged with Misconduct, the Department thereafter called Sgt. Green, and Weehawken Police Officer Purple (“PO Purple”), to dispute Sgt. John Doe’s testimony.
ADC Gamble Erred in Crediting The
Testimony of Department Witness
Sergeant Green
In rendering his Report and Recommendation to the Police Commissioner, ADC Gamble erred in crediting the testimony of Sgt. Green because the testimony of Sgt. Green’s partner PO Purple and the footage from the Body Worn Camera (“BWC”) worn by PO Purple that was admitted into evidence, both contradict his testimony. In short, Sgt. Green, while well-meaning, simply misinterpreted and inflated what he actually saw.
The Contrast Between the
Testimony of Sgt. Green and
The Testimony of PO Purple
Both Sgt. Green and PO Purple testified that they were working together as Weehawken Police Officers at an “off duty detail” fundraiser on the Weehawken waterfront (T88-90, T125 – 126) on August 27, 2022. At the end of the event, while sitting in their police vehicle, they were alerted by vendors to a “situation” at the entrance to the venue (T91, 126).
Once the Weehawken officers were alerted to a situation by vendors, however, their testimony of what occurred deviates. Essentially, the discrepancy between the testimonies of the two officers goes to the length of time that Sgt. Green had to observe what he claims he saw, and the distance from which Sgt. Green could have seen it.
Sgt. Green testified that he did not see anything related to the situation before he exited his police vehicle (T100, L3-8). There was a fence separating the area where the officers were positioned at the time they were alerted and the situation that they were alerted to. The fence had an entrance/exit. The officers’ vehicle was approximately 50 to 75 feet from the entrance/exit on their side of the fence at the time the officers exited their vehicle, and the situation was approximately 10 feet from the entrance/exit on the other side of the fence (T101, L1 – 17). Thus, according to Sgt. Green’s testimony, when he first began to make observations of the situation he was 60 to 85 feet away from the people involved.
PO Purple also testified that he saw nothing while he was inside the police vehicle (T133, L9). He testified that:
A gentleman…approached our vehicle and said hey, you might want to take a look at this. At that time I exited my patrol vehicle, walked around the back of the vehicle. When I came around to the front I was looking around. They pointed to the general direction, which was about southwest corner to where the entrance was. At that time I observed Mr. John Doe standing above a female, Ms. Jane Doe. She was on her back, kind of like this looking up (indicating). As we began to approach Sgt. Green told him to stay there, not to move.
(Emphasis added, T 126 L14 – T127 L2).
PO Purple testified that Sgt. Green exited the vehicle “right before me” (T134 L7), about five seconds prior (T134 L 15 – 18), and that when he (PO Purple) looked “Ms. Doe was already on the ground” (T134 L20-22). PO Purple testified that “Once we exited the vehicle Sgt. Green told Mr. Brown to stay where he was. He wasn’t running away. So we went to approach. At that time I wasn’t going to run towards them because he (Sgt. Brown) was complying with everything we had asked him to do at that time” (T135 L20 – 25).
Sgt. Green testified that at the time he “first (started) to see something actually happen” he was “about 10 feet after (he) exited the vehicle” (T105 L4-8). This distance that Sgt. Green walked from the vehicle before he started to see the situation accounts for the time it took PO Purple to walk around the vehicle, indicating that they both began to observe the situation at about the same point in time.
However, Sgt. Green testified that when he “first started seeing what was going on,” he saw Sgt. Brown with his girlfriend in a headlock, and then after she pushed him off, he saw Sgt. Brown turn around and go to her neck (T105 L20 – T106 L13). In contrast, at about the same time PO Purple saw the female already on the ground (T134 L20-22).
Sgt. Green also testified that when he saw Sgt. Brown push his girlfriend to the ground he was 15-20 feet away from them (T110 L19-21), and that he was approximately 5 feet from the gate in the fence at the time he saw Sgt. Brown “standing over” his girlfriend “making some sort of gesture with his arms” (T 111, L10 – 17). In contrast, PO Purple stated that he was approximately 50 feet from Sgt. Brown when his girlfriend was already on the ground (T135 L8- 11).
While Sgt. Green insisted that Sgt. Brown “Had his hands around her neck” (T106 L25), it did not alarm him sufficiently to prompt him or PO Purple to run towards the situation or call for back up (T107 L2- T108 L10).
If the testimony of PO Purple, who was as “clear, concise and forthcoming” as Sgt Green, is to be credited, then Sgt. Green would have had to observe Sgt. Brown with his girlfriend in a “headlock under his arm,” his girlfriend “push him off”, and then Sgt. Brown “put her hands around her throat and…force her to the ground,” all in the time it took PO Purple to walk around the police vehicle (T91-93), a time period estimated by PO Purple as about five seconds. Thus, the entire incident that Sgt. Green claims to have observed could only have lasted mere seconds, and his observations had to be from a distance much farther away from the people involved than he recollects.
The BWC Footage in Evidence
Supports the Testimony of
PO Purple and Contradicts
The Testimony of Sgt. Green
PO Purple testified that he activated his BWC as he was passing through the gate in the fence while walking towards the situation, and that the device captured video but not audio up to 30 seconds prior to him activating it, and that it took about 30 seconds for him to walk the approximately 40 feet from the police vehicle to the gate (T143 L8-15). Thus, according to PO Purple, the BWC footage captured the entirety of what the Weehawken Police Officers could have seen from the moment they exited their vehicle.
If you look at the video closely (which may require viewing the middle of the video first, identifying Sgt. Brown and his girlfriend, what they are wearing, and where they are standing, and then going back to the beginning to establish who and where they are when the video commences), you can see in the foreground the distance between PO Purple (who is wearing the BWC), and Sgt. Green, and the distance they are from Sgt. Brown and his girlfriend when the video commences, and most importantly, that the girlfriend is sitting up on the ground, and Sgt. Brown is standing a few feet away from her and facing her, when the video commences.
The BWC footage completely contradicts Sgt. Green’s testimony that he observed Sgt. Brown push his girlfriend to the ground when Sgt. Green was 15-20 feet away from them (T110 L19-21), and that Sgt. Green was approximately 5 feet from the gate in the fence at the point in time that he saw Sgt. Brown “standing over” his girlfriend “making some sort of gesture with his arms” (T 111, L10 – 17).
The BWC footage further contradicts Sgt. Green’s testimony because the body language of everyone shown, from the officers themselves, to Sgt. Brown and his girlfriend, to the numerous bystanders and even a dog who can be seen passing by, demonstrates that the altercation that actually occurred was not as violent or lengthy as that suggested by Sgt. Green.
Testimony of Sgt. Figuereo
In his testimony in mitigation Sgt. Brown admitted that on August 27, 2022 he and his girlfriend were involved in an incident in New Jersey (T40 L25 – T41 L2).
Sgt. Brown testified that he took his girlfriend to brunch in New Jersey to break off their relationship in an amicable fashion because he was reconciling with his wife and children (T40 L20 – T41 L 18). Sgt. Brown testified that when it was time to give his girlfriend “the final goodbye,” she tried to take his phone, he believed for the purpose of contacting his wife and scuttling their reconciliation, at which time a scuffle ensued. During the scuffle Sgt. Brown “pushed her away” from him, contributing to the two of them stumbling and falling on the uneven surface where the scuffle took place (T44 L3 – T46 L15).
Under cross examination Sgt. Brown testified that he never had his girlfriend in a headlock, didn’t hold her with both of his hands around her neck, did not push her to the ground while his hands were around her neck, and did not stand over her and yell at her while she was on the ground (T74 L7-18). He did concede, however, “I pushed her, that’s how she fell” (T74 L15).
Sgt. Brown’s Current Misconduct
Falls Far Short of Misconduct
Warranting Separation
From the Department
From the testimony of both Weehawken police officers, the BWC footage, and the testimony of Sgt. Brown, to the extent they are all consistent with each other, it can only be objectively and safely concluded that there was an altercation between Sgt. Brown and his girlfriend, and that it was sudden and extremely brief.
The primary flaw in the testimony of Sgt. Green is his unstated implication that Sgt. Brown was trying to harm his girlfriend, and that he attempted to do so by putting his hands around her throat. This is an inference arrived at by Sgt. Green that is not supported by the brevity of the altercation he actually observed and the distance from which he made his observations.
The only conclusion that can safely and objectively be made regarding the nature of the actual altercation, based upon the reliable evidence that is in the record, is that Sgt. Brown pushed his girlfriend, and that his hand at the time of the push was in the vicinity of her neck. The reliable evidence in the record does not support Sgt. Green’s conclusion that Sgt. Brown placed his hands around his girlfriend’s neck because he could not have made such an observation at such a distance and with such a brief opportunity to make it.
The altercation that Sgt. Brown pled guilty to, and that is supported by the reliable evidence in the record, was momentary and limited, and does not rise to the level of violence or mal-intent that would warrant the termination of the career of a seventeen and a half year veteran of the Department, who immigrated to this country with a high school education and no English proficiency, and who went on to pursue a Masters Degree at John Jay College while rising from the rank of Police Officer through Detective to Sergeant, while serving in numerous complex and sophisticated assignments along the way.
Prior Disciplinary History
It is respectfully submitted that the relatively minor incident involving Sgt. Brown that occurred in August of 2022 would not be considered a matter calling for separation but for the more significant incident that occurred in December of 2008. However, that case has already been adjudicated as a non-separation matter. Further, two promotions and thirteen and a half years of exceptional service to the Department and the People of the City of New York have intervened since.
Even now, in the wake of the 13 Recommendations submitted by the Blue Ribbon Panel in January of 2019, and the adoption of the original Guidelines in January of 2021, the misconduct that Sgt. Brown committed in December of 2008 does not rise to the level warranting separation from the Department.
The following excerpts from the Deputy Commissioner of Trials Data Base will demonstrate this fact. The excerpts reveal a multitude of cases where a member of the service threatened to cause physical injury, attempted to cause physical injury, and in a multitude of cases actually caused physical injury to an intimate partner and nonetheless was not dismissed or forced to retire.
In Disciplinary Case No. 2018-19665, signed Jan. 14, 2022 (Kleiman), the respondent was ”found guilty of displaying a firearm during an altercation with his girlfriend”, but was neither terminated or forced to retire.
In Disciplinary Case No. 2019-21229, signed February 12, 2021, the respondent was involved in an altercation with a seventeen (17) year old female, pulled her to the floor by her hair causing a bruise to the back of her head and threatened to kill her. This respondent was neither terminated nor forced to retire.
In Disciplinary Case No. 2018-18697, signed November 20, 2020, the respondent “slapped and punched (the) face and kicked (the) ribs” of the mother of his child causing her to sustain “a bruised eye, scratches and redness to her face, a bloody lip, a bruise to her hip and a broken nail.” This respondent was arrested and charged with Assault and Endangering the Welfare of a Child although the criminal charges were dismissed because the victim was uncooperative. This respondent was neither terminated nor forced to retire.
In Disciplinary Case Nos. 2018-19892 & 2019-20571, signed August 20, 2020, the respondent called his estranged wife and told her he was “going to burn (her) house down,” was issued a temporary order of protection in favor of said estranged wife, and then violated said order of protection by sending her subsequent text messages. This respondent was neither terminated nor forced to retire.
In Disciplinary Case No. 2018-18598, signed June 16, 2020, respondent slapped his girlfriend in the face and arms causing bruising and a black eye. He later attempted to strangle her causing breathing difficulty. On a separate occasion he shattered the windshield glass of her car after she had locked herself inside said car for her safety. The respondent pled guilty to Disorderly Conduct, and received a Conditional Discharge and was issued an order of protection in favor of his girlfriend by the criminal court. This respondent was neither terminated nor forced to retire.
In Disciplinary Case No. 2019-20169, signed December 22, 2020, the respondent grabbed his wife by the back of her neck and pulled himself toward her stating “I have two bullets, the first is for you and the second is for me.” In a second incident the respondent threatened his wife with a knife and stated he would kill her. This respondent was neither terminated nor forced to retire.
In Disciplinary Case No. 2017-18325, signed November 27, 2019, the respondent “grabbed his wife’s neck and punched her two to three times” while “she was holding their young child causing injuries to his wife.” Respondent was arrested and charged with Assault in the Third Degree and received an Adjournment in Contemplation of Dismissal (“ACD”) because his wife did not want to pursue the matter. This respondent was neither terminated nor forced to retire.
In Disciplinary Case Nos. 2015-14792 & 2016-16340, signed May 6, 2019, the respondent pled guilty to applying pressure to his girlfriend’s neck with intent to impede normal breathing thereby causing her injury. The respondent also pled guilty to violating a valid order of protection requiring him to stay away from said girlfriend. This respondent was neither terminated nor forced to retire.
In Disciplinary Case No. 2017-18172, signed April 5, 2019 (Weisel), the respondent, who had a “significant disciplinary history involving domestic incidents”, was issued a full firearm removal order of protection in Family Court. This respondent was neither terminated nor forced to retire.
Mitigating Factors
In the “Guidelines,” at page 9, under “Mitigating and Aggravating Factors,” it states,
The Guidelines facilitate penalties designed to ensure consistency among similarly situated members of the service while allowing for reasonable degrees of mitigation and aggravation based upon the specific facts and circumstances of each incident. The presumptive penalty identified for each act of misconduct may be increased or decreased depending upon the presence of these individualized factors (emphasis added).
Among the mitigating factors set forth in the Guidelines, the following are pertinent to the case of Sgt. Brown:
- The state of mind of the member of the service, including the absence of intent.
- The voluntary candor and assistance of the member of the service, which goes beyond the mandates of cooperation and truthfulness, and aids the investigation.
- The acceptance of responsibility.
- Positive employment history.
- The limited nature and extent of the consequences or harm caused.
- The limited impact of the violation upon the Department and its mission.
- The potential for rehabilitation.
To the same extent that Sgt. Brown’s prior disciplinary history is regarded as an aggravating factor in the review of his current disciplinary matter, the mitigating factors set forth in the “Guidelines,” at page 9, particularly “Positive Employment History” and “Potential for Rehabilitation” should be applied to the totality of Sgt. Brown’s current disciplinary history.
Sgt. Brown has a positive employment history and has already demonstrated his potential for rehabilitation. As stated above, Sgt. Brown, in his 17 years on the Department, has risen from police officer to the rank of Detective, and then onward to the rank of Sergeant.
Sgt. Brown has attained impressive educational achievements while active in the NYPD: He completed his Bachelor’s Degree and the NYPD Leadership Program at John Jay College in 2021. He also commenced both a Master’s Degree and the Graduate Leadership Program at John Jay College in 2022. He is expected to graduate from both programs in June of 2024.
His demonstrated potential for rehabilitation is also evident in the Performance Evaluation he received after he was suspended and modified from this incident (see attached). In the Behavioral Dimensions of Police Ethics/Integrity and Appearance/Professional Image he received ratings of 5 out of 5. In the Behavioral Dimensions of Leadership, Judgment, Professional Responsibility, Verbal Communication Skills, Written Communication Skills, Comprehension Skills, Organization Skills, Drive/Initiative, Analytical Skills, Interpersonal Skills, Adaptability, Memorization, Innovativeness, and Physical Fitness/Physical Activities, he received ratings of 4 out of 5, for an overall evaluation score of 4.
In the comments section of his evaluation, Sgt. Brown’s superior stated the following:
- Brown demonstrates exceptional work ethics and displays a very high level of integrity. He is honest and possesses strong moral principles. When couples (sic) with his willingness to help others, it has earned him the respect among peers.
- Brown displays a positive attitude and is never complacent in his assignment. He is a self-motivated individual who takes initiative when he recognizes a problem.
- Brown is a competent, reliable, and efficient supervisor. He demonstrates exceptional work ethics and displays high level of integrity into his work. Sgt. Brown is aware of and adheres to the Department’s EEO policy.
In reviewing the current incident it can clearly be ascertained from the testimony of Sgt. Brown that he had no intent to harm his girlfriend in any way, the two were simply scuffling over a phone. The fact that Sgt. Brown caused no harm to his girlfriend, the fact that she was not in any way injured from the incident, and the fact that the Department does not claim otherwise, all go to the limited nature and extent of the consequences or harm stemming from the current incident.
As stated above, within seconds of his contact with the local police, Sgt. Brown was candid and took responsibility for his actions by advising the officer that he was a member of the service, and that his push contributed to his girlfriend’s fall to the ground. All of this goes to the limited impact of Sgt. Brown’s actual violation upon the Department and its mission.
Procedural Infirmities
During the cross examination of the Department’s witnesses it was revealed that said witnesses improperly utilized records that were sealed pursuant to Criminal Procedure Law §160.50 to prepare for their testimony, to wit, BWC footage (T117 – 119). Although the issue was addressed by ADC Gamble during the mitigation hearing, the Respondent, Sgt. Brown, preserved his objection to the utilization of said sealed records.
Additionally, the mitigation hearing itself was improperly conducted pursuant to Civil Service Law 75, rather than Title 38, Chapter 15 of the Rules of the City of New York, Administrative Code §14-115 (see Montella v Bratton, 93 NY2d 424 [1999]).
Conclusion
It is the earnest desire of Sgt. Brown to remain a member of the NYPD because he still has a valuable contribution to make to the Department and to the People of the City of New York. Despite his current troubles Sgt. Brown has maintained a positive attitude towards the Department and his current assignment at the Bronx Court Section. Sgt. Brown’s work evaluation since his suspension and modification demonstrates the spirit of service that informs his conduct each day.
The precedents set forth in the Deputy Commissioner of Trials Database support Sgt. Brown’s position that the misconduct he actually engaged in, for which he has taken responsibility and continues to show remorse, even in light of his prior history, does not rise to the level of misconduct warranting his separation from the Department.
This does not in any way minimize the wrongfulness of Sgt. Brown’s conduct in August of 2022 or December of 2008. It does point to the fact that Sgt. Brown’s poor reaction to his failed relationships were momentary lapses of judgment, more than thirteen years apart, and are not emblematic of his overall character and judgment and value to the Department.
His lack of intent to harm, his acceptance of responsibility and remorse and his subsequent rehabilitation all go to the heart of the fact that Sgt. Brown remains a valuable asset to the Department going forward. It all goes directly to the fact that his mistakes are matters of circumstances, not character. It goes to the question of whether Sgt. Brown is genuinely rehabilitated and worthy of redemption. It is respectfully submitted that he is, and that his current disciplinary matter should be adjudicated accordingly.
It is respectfully urged that an appropriate penalty should be imposed upon Sgt. Brown, that he should be placed upon dismissal probation but not terminated, and that he should be returned to the exemplary service he has thus far rendered to the people of the City of New York and their Police Department.
In the alternative, if he is still deemed unworthy of continued service despite the true nature of his current misconduct and all of the mitigating circumstances and disciplinary precedent set forth above, he should be permitted to submit his papers for a vested retirement in recognition of the service he has rendered.
Respectfully submitted,
_____________________
Michael F. Dailey, Esq.
One Riverdale Avenue
Mailbox Eleven
Bronx, New York 10463
(718) 543-0100
mikedaileylaw@gmail.com
Cc: John Doe, Esq.
Agency Attorney,
NYPD Advocate’s Office
Jane Doe, Esq.
Agency Attorney,
NYPD Advocate’s Office
Call Now To See How I Can Help!
(718) 618-5995
