MICHAEL F. DAILEY
ATTORNEY AT LAW
One Riverdale Avenue
Suite One, Mailbox Eleven
Bronx, NY 10463
Office: (718)543-0100
Service by Email or Facsimile
Not Accepted
April 27, 2022
Hon. Keechant L. Sewell
Police Commissioner
Police Department of the City of New York
One Police Plaza
Room 1400
New York, NY 10038
Re: Police Officer Respondent, Tax No. 954003, Disc. Case No. 2018-18748
Dear Commissioner Sewell,
The following written comments are submitted on behalf of Police Officer Respondent pursuant to Fogel v. Board of Education, 48 A.D.2d 925 (2d Dept. 1975).
Preliminary Statement
Given the nature of the work they do, when a police officer, in the performance of his or her duty, engages in an act that becomes the subject of official review, if a plausible explanation exists that averts a finding of misconduct, or sufficiently mitigates the negative impact of the act, an ethical obligation exists on the part of the reviewer to render a finding of no misconduct or downward depart from an otherwise appropriate penalty.
In this case a plausible explanation exists that warrants a finding of no misconduct. At the very least, it is of such mitigation that a penalty of termination from the Department would be unjust. Additionally, in the case of Officer Respondent, given his background and the totality of his contribution to the mission of the Police Department, it would be wasteful and unwise.
The Charges and Specifications
To Which Officer Respondent Actually
Entered a Plea of Guilty
On 4/2/2018, the Department filed the following charges and specifications against PO Respondent:
- Said Police Officer Respondent, while assigned to the 73rd Precinct, on or about October 9, 2016, while on duty, wrongfully failed to make required entries in her Activity Log (sic).
- Said Police Officer Respondent, while assigned to the 73rd Precinct, on or about October 9, 2016, while on duty, engaged in conduct prejudicial to the good order, efficiency, or discipline of the Department, in that said Police Officer testified under oath before a Kings County grand jury that another Member of the Service, Police Officer Jane Doe, had been present during an incident leading to the recovery of a firearm on October 9, 2016, when she, in fact, had not.
With regard to Charge and Specification Number Two, it is essential to note that the Department did not allege, in April of 2018, that Officer Respondent testified falsely, and did not amend its charges and specifications between April of 2018 and March 16, 2022, the date of Officer Respondent’s Department Hearing, to allege that he testified falsely, or with any intent to deliberately mislead or obfuscate the truth. Furthermore, when Officer Respondent entered his plea of guilty on March 16, 2022, at page 48-49 of the Official Transcript (hereafter Tr. 48-49), he clearly stated that his incorrect testimony “was a mistake.” The Department did not reject his guilty plea as insufficient and did not undertake its burden to prove that Officer Respondent testified falsely or with any intent to deliberately mislead or obfuscate the truth. Instead, the Department asks the trier of fact to draw every possible negative inference against Officer Respondent’s own testimony, and then undertake a complete leap of speculation and surmise to find that Officer Respondent conspired with Officer Jane Doe to conform his testimony to hers, despite no evidence of such a conspiracy whatsoever in the record of these proceedings.
Charge and Specification No. One:
Wrongful Activity Log Entries
During his allocution for his plea of guilty to a failure to make required entries in his Activity Log, Officer Respondent stated the following:
Q: Do you remember, offhand, what it was that you improperly made, or failed to make in your memo book on that day?
A: On the that day, RMP number, that’s partners that I was working with.
D.C. Adler: Is it their names that you omitted from your memo book; you did not include any of that information in other words?
A: No, I did not include it.
D.C. Adler: I’m sorry?
A: I did not include it.
(Tr. 48).
Under cross examination, Officer Respondent stated the following regarding his failure to make required entries in his Activity Log:
Q: Officer Respondent, see in the middle of the page there’s an entry, twenty-one hundred, present for duty, 73rd precinct, right?
A: Yes.
Q: And that’s related to the time that you began working for your tour on October 8th into the 9th of 2016, correct?
A: Yes.
Q: All right. The next line, ninety-eight RMP four sixteen?
A: Yes.
Q: Ninety-eight means what?
A: On patrol.
Q: Right after that on the same line it says the word, partner, and then, PO Green, correct?
A: Yes.
Q: What does that mean? Was Green your partner?
A: Green was one of the officers I was working with that night.
Q: Now, you didn’t indicate any other member of the service as your partner in any entry related to that particular day’s work, did you?
A: No, because what we usually do, at the end of the tour, or sometimes a whole day later, because it’s so busy we don’t always have time to complete the memos, it’s always done in rush.
Q: You said during your direct examination that you considered all the members of your team your partners?
A: Yes.
Q: But you only mentioned Green by name for your entry for that day’s work. Why did you only mention officer Green as the only person who you deemed your partner that day?
A: I’m not sure, but I was working with different guys as well.
(Tr. 95-96). Officer Respondent Activity Log entries for his tour of duty that began on 10/8/2016 and ended on 10/9/2016 are in evidence as Department’s Exhibit 1.
Conclusion
Wrongful Activity Log Entries
The evidence at the mitigation hearing clearly shows that the following members of the 73rd Precinct Anti-Crime Team were working with Officer Respondent during the 10/8/2016 – 10/9/2016 overnight shift, were considered “partners” according to the nomenclature of the unit at that time, and therefore should have been listed in Officer Respondent’s Activity Log: Police Officer Jane Doe, Police Officer Gray, Police Officer Blue, Police Officer Green, and Police Officer Red. Sergeant John Doe, the supervisor of the team, was also working that night.
Additionally, the evidence clearly shows that the following officers were present in the police vehicle with Officer Respondent at the time that he made the observations that led to the arrest that is at the center of the Department’s Charges and Specifications: Police Officer Green, Police Officer Red, and Police Officer Blue.
The audio files as well as the written transcripts of the Official Department Interviews of each of the above referenced officers were admitted into evidence by the Trial Commissioner as Respondents’ Exhibit E (Tr. 8, 132).
The evidence shows that Officer Respondent’s failure to list all of the officers who were working with him on the 10/8/2016 – 10/9/2016 tour as “Partners” in his Activity Log was nothing more than a shortcut. It was sloppy record keeping, and nothing more. There is no evidence that the wrongful failure to make Activity Log entries was the product of any false intent, or any desire to mislead on the part of Officer Respondent.
Charge and Specification No. Two:
Police Officer Respondent…testified under oath
before a Kings County grand jury that another
Member of the Service, Police Officer Jane Doe,
had been present during an incident
leading to the recovery of a firearm on
October 9, 2016, when she, in fact, had not.
- The Grand Jury Testimony
The Grand Jury Testimony of Officer Respondent, dated 10/19/2016, is in evidence as Department’s Exhibit 2. In that testimony, contained within 59 lines of dialogue spread across less than three pages of transcript, Officer Respondent made the following statement that is the subject of Charge and Specification number two:
Me and my partner, Officer Jane Doe, we got out of the car and we noticed that the defendant was crouched down, and at that point, he removed a black object from his waistband and he threw it under a white van that was parked on the street.
The evidence shows, and is not in dispute, that the only thing inaccurate in Officer Respondent’s Grand Jury testimony, set forth above, is the identify of his “partner.” The correct identify of the “partner” referenced by Officer Respondent is Officer Red. Officer Respondent mistakenly substituted the name “Jane Doe” for “Red.” That’s all.
- Officer Respondent’s Defense
Officer Respondent has persistently and consistently maintained
That his identification of Officer Jane Doe as the “Partner”
That he exited the car with on October 19, 2016, as he
Made the observations that led to the recovery of a firearm
And an arrest, was an inadvertent and innocent mistake
In his opening statement the Department Advocate conceded that, when Officer Respondent submitted to an Official Department Interview regarding his Grand Jury testimony on 10/19/2016:
- Officer Respondent “insisted that he did not speak in any way to Officer Jane Doe either before she testified before the grand jury or after she testified at the grand jury,” and
- that “Officer Respondent simply attributed his misstatements and inaccurate statements before the Grand Jury to making a mistake” (Tr. 22-23).
It should be noted that, although mischaracterized by the Department Advocate as “misstatements and inaccurate statements” (Tr. 23), suggesting numerous misstatements and numerous inaccurate statements, the evidence is clear that there was only one mistaken word in Officer Respondent’s entire Grand Jury testimony: the substitution of the name “Jane Doe” for the name “Red.”
On direct examination regarding Charge and Specification number two, Officer Respondent testified consistently with his prior Official Interview testimony:
Q: When you said that Officer Jane Doe was present when she had not been present, was that a mistake or was it a false statement?
A: It was a mistake.
(Tr. 49).
On further direct examination, when asked about the testimony he gave in his Official Department Interview regarding Charge and Specification number two, Officer Respondent testified as follows:
Q: And what did you do when you sat down and were interviewed by the police department and were confronted with this problematic grand jury testimony?
A: I told them I made a mistake.
* * * * * * * *
Q: So again, if you could tell us what did you do when you were confronted with the problematic grand jury testimony at your Official Department Interview?
A: I told them I made a mistake.
Q: The testimony that you gave to the grand jury, what was the problem with the testimony? Was it the personnel who were involved or was it the actual circumstances of the arrest, or was it something else?
A: Just the personnel. The car rotation, personnel.
(Tr. 73-74).
Throughout cross examination by the Department Advocate (Tr. 93 – 132), there was nothing elicited from Officer Respondent, or otherwise offered into evidence, to suggest that his testimony regarding Officer Jane Doe being the partner who exited the vehicle with him on 10/9/2016 was anything other than a mistake.
Other Than the Identity of His “Partner,”
The Veracity of the Testimony of Officer Respondent
Regarding His Observations That Led to the
Arrest of Perpetrator Is Not Disputed
In the early morning hours of 10/9/2016, Officer Respondent was in an unmarked police vehicle with Officers Red, Green and Blue when he observed two males walking towards their vehicle on the sidewalk of Tapscott Street in Brooklyn, one with a plastic cup in his hand. Officer Respondent and the other officers in the vehicle determined that one of the males, later identified as The Perpetrator, acted furtively when he threw his plastic cup to the ground, and they all exited the vehicle to investigate. As he approached the Perpetrator Officer Respondent observed him remove an object from his waistband and throw it under a white van. While one of his “partners” stayed with The Perpetrator, Officer Respondent got down onto his belly to look under the van, ascertained that there was a firearm under the van, concluded that the firearm had been tossed under the van by The Perpetrator, and then signaled to his “partners” to place The Perpetrator under arrest.
With the single exception of the presence of Officer Jane Doe at the scene, the account of the arrest testified to by Officer Respondent before the Grand Jury on 10/19/2016 is accurate and unchallenged, corroborated entirely by Officer Red, who testified in an almost identical fashion in his Official Department Interview, and also corroborated by Officers Green and Blue in their Official Department Interviews (See Official Interviews of Officers Red, Green and Blue, collectively admitted into evidence as Respondents’ Exhibit E, at Tr. 8, 132).
How Could Officer Respondent Mistakenly
Testify That Officer Jane Doe Was Present
When He Made the Observations That
Led to a Gun Arrest When She Had
Not Actually Been Present?
PO Jane Doe was part of the Anti-Crime Team,
And was present at the scene shortly after Officer
Respondent made the observations leading to the Arrest
And was Also a Participant in the
Actual Making of the Arrest
And the Securing of Evidence
On 10/9/2016, at a little past midnight, Officer Respondent was on patrol with Officers Red, Green and Blue, while Officers Jane Doe and Gray were with the Sergeant at the 73rd Precinct Station House (Tr. 52, Exhibit E). After observing The Perpetrator throw an object under a white van, and having ascertained that there was a firearm under the van that likely had been discarded by The Perpetrator, but prior to taking physical custody of the firearm, Officer Respondent called out “92” to his “partners” indicating that The Perpetrator should be placed under arrest (Tr. 57 – 58). At about that time Officer Green, according to his Official Interview (Exhibit E), executed a radio-call requesting the Anti-Crime sergeant to respond to the scene. Upon hearing the radio call, Sergeant John Doe and Officers Jane Doe and Gray responded from the 73rd Precinct Station House to the scene of the arrest (Exhibit E).
According to a stipulation agreed to by the Department Advocate and defense counsel during the Department Hearing (Tr. 129), “there is an approximately three (3) minute gap between when there is indication of the call for the sergeant to respond and the sergeant actually saying that there is one under (arrest).”
As noted by the Trial Commissioner at page 6 of his Report & Recommendation, upon arriving at the scene of the arrest Officer “Jane Doe assisted in handcuffing the arrestee, and she also handed Respondent a plastic bag in which he placed the recovered firearm” (see also Tr. 61-63).
Thus, the evidence clearly shows that Officer Jane Doe was present on the scene and an active participant in police activity while the arrest was still in progress, on 10/9/2016, as noted by the Trial Commissioner.
PO Jane Doe Was Assigned as the Arresting
Officer of The Perpetrator by the Anti-Crime
Sergeant and Prepared All of the Arrest Paperwork
And Was Present During Discussion of the Events
Leading Up to the Arrest by Officers Respondent,
Red, Green, and Blue
It is not disputed that Officer Jane Doe was assigned by the Anti-Crime sergeant, Sergeant John Doe, to be the arresting officer of The Perpetrator on 10/9/2016. As such, Officer Jane Doe prepared all the police paperwork for the arrest of The Perpetrator (Tr. 148 – 150, Exhibit E).
Officer Jane Doe was also present at the 73rd Precinct Station House in the company of Officers Respondent, Red, Green and Blue while they all discussed the events and circumstances leading up to and culminating in the arrest of The Perpetrator (Tr. 63-65, 150 – 152).
Officer Respondent Reviewed the Arrest
Paperwork Prepared by Officer Jane Doe
When he Prepared to Testify
Before the Grand Jury
Officer Respondent reviewed the police paperwork prepared by Officer Jane Doe as he prepared to testify before the Grand Jury ten days later on 10/19/2016. (Tr. 67)
All of the Members of the 73rd Precinct Anti-,
Crime Team, When Interviewed by the Department
About the Events of 10/9/2016, Displayed
Faulty Recollections and Made Mistakes
Regarding the Identities of the Team Members
Who Were Present, and the Roles Played by
Members Of the Team at the Scene of the Arrest
- The Officer Orange Controversy
Sergeant John Doe, who was the supervisor of the 73rd Precinct Anti-Crime team on 10/9/2016, was interviewed by the Department on 9/14/2017. Sergeant John Doe could not recall the following details about the gun arrest that was made by his team:
- Who he spoke to when he arrived at the scene of the arrest,
- Who at the scene informed him regarding the circumstances of the arrest,
- Whether the firearm had been recovered before or after he arrived at the scene,
- Whether he first saw the gun at the scene of the arrest or at the station house,
- Whether the gun was found under a car or next to it.
However, for all his faulty recollection, Sergeant John Doe provided very important details about which members of the Anti-Crime team were working in the early morning hours of 10/9/2016, and the order in which they arrived at the scene of the arrest of The Perpetrator:
Sgt. John Doe
At page 4, line 17 through page 6, line 7 (hereafter P4 L17 – P6 L7) of his Official Interview (Exhibit E), Sergeant John Doe provides the following information:
Q: What other MOS were assigned to the RMP with you?
A: It was PO Gray and PO Jane Doe.
Q: So three of you?
A: Yeah.
Q: How many UMS – – MOS were working your team that night?
A: There was seven and, and myself. One of them, Officer Orange was administrative due to an arrest from the night before.
Q: Okay. So out in the field it would be a 12,7,6 officer?
A: It was four in one car and there was two in the second car along with myself.
Q: So four in the first? Who are they?
A: The first car was Respondent, Green, Blue and Red.
Q: And the second car?
A: Myself, PO Gray and Jane Doe.
PO Gray
Sergeant John Doe’s testimony regarding the absence of Officer Orange on the scene of the 10/9/2016 arrest was corroborated by the testimony of Officer Gray who was also interviewed by the Department on 9/14/2017. At P4, L5 – P6, L8 of his Official Interview (Exhibit E), PO Gray provides the following information:
Q: I wanna direct your attention to Sunday, October 9, 2016, were you working on that day?
A: Yes I was.
Q: What was your assignment?
A: I was sergeant operator. Sergeant crime team.
* * * * * * * *
Q: What other MOS were assigned in that vehicle with you?
A: It was Sergeant John Doe and Officer Jane Doe.
Q: Just the two of you?
A: Yes, that I can recall.
* * * * * * * *
Q: So who’s normally on your team with you?
A: At that time it was Green, Respondent, Jane Doe, Blue, Red, myself, Orange, Brown and Sergeant John Doe.
Q: So it’s fair to say the first car was PO Red, Respondent, Green and Blue?
A: Yes.
Q: And in the second car was you…
A: Yes.
Q: as the operator…
A: Yes.
Q: Sergeant John Doe and PO Jane Doe?
A: Yes.
Q: And PO Orange was not there. Where was he?
A: I don’t remember.
PO Green
The testimony of Sergeant John Doe and Officer Gray regarding the absence of Officer Orange at the scene of the arrest on the night of 10/9/2016 was also corroborated by the testimony of Officer Green who was interviewed by the Department on 9/19/2017. At P9 L21 – P10 L1 of his Official Interview (Exhibit E), Officer Green provides the following information:
Q: When the sergeant responded to the scene, who was he with?
A: Officer Jane Doe and Officer Gray.
PO Orange Was Not Present
At the Scene of the Arrest on 10/9/2016
The testimony of Officer Gray and Officer Green corroborates the testimony of Sergeant John Doe that there were two (2) anti-crime vehicles active in the early morning hours of 10/9/2016, that Officers Red, Respondent, Blue and Green were in the first vehicle, and that Sergeant John Doe and Officers Jane Doe and Gray were in the second. Police Officer Orange was “administrative” due to an arrest the night before, and was not working on the street that tour (see Exhibit E).
However, in their Official Department Interviews, the following police officers, who are not alleged to have made false statements, reported seeing Officer Orange at the scene of the arrest of The Perpetrator:
Po Red
Officer Red, who was interviewed on 9/14/2017, at P12 L9 – P13 L6 of his Official Interview transcript (Exhibit E), testified as follows:
Q: Who called the sergeant, you called?
A: Officer Green.
Q: Green called the sergeant. Okay. And what happened afterwards?
A: He goes on the radio and he calls the sergeant. Sergeant shows up I say maybe two, three minutes later and sergeant shows up with…
Q: Who’s the sergeant?
A: At the time, he’s a lieutenant now but at the time it was Sergeant John Doe.
Q: Okay. And who, do you know who he was working with…who was in his vehicle I should say? Let me rephrase that.
A: Officer, I think it was Officer Gray, Officer Jane Doe, and I think Officer Orange. I think. I’m unsure with him but which I’m pretty sure…
Q: So your more positive about Gray and Jane Doe?
A: I’m positive Gray and Jane Doe.
PO Blue
Officer Blue, who was interviewed on 9/19/2017, at P9 L12 – L 20 of his Official Interview transcript (Exhibit E), testified as follows:
Q: How long did it take for the sergeant to respond after he was requested?
A: I don’t recall but…
Q: Do you recall who was with the sergeant when he responded?
A: It was himself, Gray, I remember seeing Orange and Jane Doe.
Q: So four people responded?
A: Yeah.
So, while Sergeant John Doe and Officers Gray and Green all testified very clearly and assertively, under pain of termination from the Department, that Officer Orange did not arrive in the car with the Sergeant at the scene of the arrest of The Perpetrator in the early morning hours of 10/9/2016, two police officers, Red and Blue, also under pain of termination from the Department, testified that Officer Orange did arrive at the scene of the arrest in the car with Sergeant John Doe.[1] Clearly, some of the officers who were on the scene of the arrest on 10/9/2016 are sincerely mistaken about whether another member of their team was also there.
- The Transport Back to the Station House Controversy
In addition to confusion among the anti-crime team over whether Officer Orange was on the scene of the arrest on 10/9/2016, there is also confusion regarding who rode with who and in what car on the trip back to the station house after the arrest:
Sgt. John Doe
At P17 L2 – 9 of his Official Interview (Exhibit E), Sgt. John Doe provides the following information:
Q: How long were you on the scene?
A: I’d say approximately five minutes.
Q: Okay, five minutes. The perps in the car, everybody goes back to the stationhouse?
A: Yes.
Q: Do you remember if Jane Doe was with you or went with the perp?
A: That I don’t recall, no.
PO Green
At P10 L20 – P11 L4 of his Official Interview (Exhibit E), PO Green provides the following information:
Q: Who transported The Perpetrator to the stationhouse?
A: I did.
Q: You did. Along with who else was in the vehicle with you?
A: I’m not sure who the second officer was that was in my car
PO Gray
At P10 L5 – 13 of his Official Interview (Exhibit E), PO Gray provides the following information:
Q: Did PO Jane Doe go with you back to the house or she was in the second car – first car?
A: I don’t remember.
Q: So you did not transport the perp?
A: Not in my car, no.
Q: But what you’re saying is you don’t know – remember if PO Jane Doe was with you or she was in the first car when they transported the perp back to the station?
A: I don’t recall.
PO Blue
At P10 L10 – 15 of his Official Interview (Exhibit E), PO Blue provides the following information:
Q: Who transported The Perpetrator to the stationhouse?
A: I don’t recall.
Q: Was he transported in your RMP?
A: As a matter of fact yes he was. I think Officer Green was doing the driving but I don’t remember who was in the car.
iii. Conclusion Regarding Mistakes Made by the Team
As can be gleaned from the many mistakes set forth above, notwithstanding that all the officers involved were excited when they reconvened at the stationhouse following the incident to discuss the details of the gun arrest and everybody’s role in what occurred, this was in fact an arrest “whose details were likely to quickly fade from their minds” (see Report and Recommendation page 9). This is particularly true when the forgotten details (such as the identity of the team members who were present at the scene) were relatively minor within the context of the more substantial details (such as the circumstances of the arrest itself) that the officers were primarily focused on.
From the Moment He Saw The Perpetrator
Throw a Cup to the Ground, Until
The Moment He Took Custody of the Gun that
Had Been Tossed Under the Van,
The Attention of Officer Respondent Was Tightly
Focused on the Conduct of The Perpetrator, to the
Exclusion of Comparatively Minor Details Such as
The Identity of the Anti-Crime Team Members Who
Were Present, and the Roles They Played
In Effecting the Arrest of The Perpetrator
Officer Respondent has testified consistently and in precise detail, before the Grand Jury, at his Department Hearing, and in his Official Department Interview as can be gleaned from the fact that he was not impeached with its contents, about the observations that led to his approach of The Perpetrator, and the suspicious conduct of The Perpetrator that led him to search under the white van, and the circumstances that led him to conclude that the conduct of The Perpetrator and the proximity of the gun warranted an arrest of The Perpetrator, and the circumstances (the weather, the gathering crowd of onlookers) that warranted an immediate seizure of the gun rather than waiting for the Evidence Collection Team (Tr. 51 – 63).
It is common experience that we all prioritize and filter information as we move about our day, focusing our limited attention on that which is most important to the accomplishment of our goals. Everyone has had the experience of seeking a quiet space free of distractions to get work done. Everyone has passed through a familiar space and noticed for the first time something that was always there.
Officer Respondent, in the early morning hours of 10/9/2016, had his mind focused on the conduct of The Perpetrator and the evidence discovered at the scene, and the culpability that could be attached to The Perpetrator’s conduct and the security of the evidence, all within the context of an overarching concern for the physical safety of his teammates and himself.
Conclusion Regarding
Officer Respondent’s Mistake
Officer Respondent, an active police officer in a busy police precinct, ten days after the arrest and after reviewing police paperwork to refresh his recollection, paperwork that identified Officer Jane Doe as the arresting officer, mistakenly substituted Officer Jane Doe for Officer Red as the officer who exited the police vehicle with him and who detained The Perpetrator while he searched under the van to recover the gun that The Perpetrator discarded upon being approached by police officers. It was an innocent, inadvertent, and very unfortunate mistake.
The Trial Commissioner’s Conclusion
That the Grand Jury Testimony of
Officer Jane Doe and Officer Respondent Are So
Similar that It Must Be Contrived
Is Baseless Speculation
As noted by Deputy Commissioner-Trials (“DCT”) Adler, in his Report and Recommendations, at page 7:
Jane Doe acknowledged that while she was testifying, she remembered the incident clearly, and nobody had instructed her to answer the questions the way she did. She claimed she did not consult with Respondent before or after her grand jury testimony. (Tr. 153-61, 169-70, 186-88, 192-97, 200).
Officer Respondent was not asked during the Department hearing whether he spoke to Officer Jane Doe prior to his Grand Jury testimony, however, in his opening statement, the Department Advocate conceded the following:
Now, Police Officer Respondent similarly was interviewed by Department investigators, and you’ll hear that he insisted that he did not speak in any way to Officer Jane Doe either before she testified before the grand jury or after she testified at the grand jury (Tr.22).
As also noted by DCT Adler, at pages 8 – 9 of his Report and Recommendations:
Both Respondents testified at trial that when the team reconvened at the stationhouse following the incident, they were all excited as they discussed the details of the gun arrest, including everybody’s role in what had occurred.
As can be gleaned from the Official Interviews of Officers Red, Blue and Green (Exhibit E), everything that was testified to by Officer Respondent in the Grand Jury, with the notable exception of Officer Respondent as his partner, was testified to by Officers Red, Blue and Green in their Official Interviews. Thus, it is not necessary for Officer Jane Doe to have consulted Officer Respondent, in secret or otherwise, to learn the facts of the arrest that she related in her testimony to the Grand Jury.
Furthermore, whatever anyone might think of Officer Jane Doe’s testimony before the Grand Jury and at her Department Trial, there is simply no evidence that she was motivated by self-interest or a desire to commit a fraud. The most obvious conclusion from all of the evidence in the record is that Officer Jane Doe was an immature and inexperienced officer who simply didn’t realize that she was doing anything wrong at the time of her Grand Jury testimony. There is simply no evidence whatsoever that she in anyway mentioned her Grand Jury testimony to Officer Respondent, much less that she solicited him to corroborate her Grand Jury testimony.
Any conclusion that Officers Respondent and Jane Doe conformed their testimony is pure baseless speculation.
Conclusion Regarding
Charge and Specification No. 2
The evidence in these proceedings allows for only one fair conclusion for Officer Respondent: His Grand Jury testimony regarding Officer Jane Doe being on the scene at the beginning of the arrest was a mistake. The fact that Officer Jane Doe’s testimony also put her at the scene at the beginning of the arrest, for Officer Respondent, is nothing but an awful coincidence.
The Report and Recommendation of DCT Adler that Officer Respondent’s statements were knowingly false rests on nothing more than surmise and conjecture, not evidence.
Furthermore, the Trial Commissioner’s comment, at page 11 of his Report and Recommendation, that both Respondents bolstered Officer Respondent’s accurate account of the arrestee’s actions by “falsely claiming that Jane Doe also witnessed the incident”, is illogical. Officer Respondent’s testimony as to the culpability of The Perpetrator was complete, and not in any need of supporting testimony. If supporting testimony was desired by the district attorney, Officers Red, Blue and Green were available to provide it. This comment on the part of the Trial Commissioner regrettably suggests that his conclusion preceded his reasoning rather than the other way around.
If the Department Advocate held the position that Officer Respondent’s Grand Jury testimony was knowingly false, the Department Advocate had the ethical obligation to charge a knowingly false statement and the burden to prove it.
If the Trial Commissioner had reservations about the Charge and Specification presented by the Department, and the plea to mistaken testimony that was tendered by Officer Respondent, the Trial Commissioner had the ethical obligation to reject the plea and put the Department to its burden of proof.
The Report and Recommendation of DCT Adler not only supersedes the plea that was accepted by the Department. Given the dearth of evidence presented by the Department Advocate, it also fails in every way to comport with the standards of fairness and rigor of the NYPD Trial Room. In failing to meet the Department’s own standards, the Report and Recommendation of DCT Adler renders a gross injustice to an excellent man and police officer and perpetrates a wasteful act of vandalism upon a valuable Department asset.
Officer Respondent’s Value to
The Police Department
Officer Respondent is an immigrant who came to the United States with his family when he was six years old. He learned to speak English by watching cartoons on T.V. When he was a junior in high school he gave up sports and took a job to help out his working class family. After four years of commuting to college, and having qualified for a diploma, he took an extra semester of classes to improve his grade point average. While in college in New Jersey he participated in an unpaid internship in the local court system working with youths (Tr. 76 – 83).
While in the Police Academy Officer Respondent was offered a position in a New Jersey police department near where he grew up, but he stayed with because he believed, and still believes that the NYPD is the premier law enforcement agency in the world. Upon assignment to the 73rd Precinct Officer Respondent immediately stood out as competent and active police officer, and was quickly promoted to the Anti-Crime Unit. As noted by DCT Adler, Officer Respondent has been awarded one medal for Meritorious Police Duty-Integrity, and five medals for Meritorious Police Duty (Tr. 83 – 85).
After he was modified Officer Respondent was transferred to the Bronx Court Section. As noted by DCT Adler, Officer Respondent has twice received overall ratings of “Exceeds Expectations” for 2019 and 2020 and was rated as “Exceptional” for 2021. Other than the current charges and specifications Officer Respondent has no disciplinary history. He has never called out sick. He recently was awarded a “Commanders Day”. He is respected, well liked, and universally relied upon by his supervisors and peers at the Bronx Court Section (Tr. 85 – 91).
Officer Respondent is eligible to retire from the NYPD. He has declined to do so, and is risking whatever pension he has accrued, because he still perceived a future with the NYPD. His aspiration is to be a detective. His fervent desire is to remain a member of New York’s Finest, to help and protect this City, and to serve. Officer Respondent is a valuable asset to this Department and should be permitted to add to the contribution he has already made (Tr. 91 – 92).
It is respectfully requested that the Police Commissioner implement a penalty that is commensurate with the honest mistake made by Officer Respondent.
Respectfully submitted,
_________________________
Michael F Dailey, Esq.
Attorney for Police Officer Respondent
Cc: PO Respondent
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