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In re Depamphilis

Supreme Court, New York County

May 16, 2012

In the Matter of the Petition of Richard Depamphilis, Petitioner,
v.
Raymond W. Kelly, as Police Commissioner of the City of New York; ARNOLD S. WECHSLER, as Assistant Commissioner of the NYPD Employee Management Division; and THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, Respondents.

For petitioner: Philip Karasyk, Esq. Karasyk & Moschella, LLP

For respondents: Michael A. Cardozo Corporation Counsel of the City of New York

Of Counsel: Robert Katz, Jane E. Andersen

Michael D. Stallman, J.

In this Article 78 proceeding, petitioner, a former veteran police officer, seeks to annul respondents' determination that he was automatically terminated as a police officer by operation of law due to his guilty plea to the Class A misdemeanor of Offering a False Instrument for Filing in the Second Degree; that he was not entitled to a hearing; and that he was therefore not eligible to retire and collect his pension.

BACKGROUND

Petitioner Richard Depamphilis was a member of the New York City Police Department (NYPD) for twenty-six years, beginning in 1984, and the NYPD awarded him a Meritorious Police Duty medal in 1985. In 1986, petitioner was assigned to the NYPD's Mounted Unit.

In 2006, petitioner was one of five committee members responsible for receiving applications and making recommendations to the NYPD Contract Administration Unit regarding contract bids to become a vendor to care for retired NYPD horses. One of the vendors who submitted an application was Vicky Nanninga, a friend of petitioner, for the Stone Horse Inn, a horse farm. According to respondents, the contract required a minimum of 30 acres. Nanninga's application stated that the Stone Horse Inn had 35 acres of land, when it had only 19 acres. [1]

Petitioner recommended that Nanninga be awarded a contract, and the Contract Administration Unit awarded the Stone Horse Inn a contract in the amount of about $2.5 million. Respondents assert that petitioner did not disclose his personal relationship with Nanninga, and that he was the only committee member assigned to visit the Stone Horse Inn prior to recommending that Nanninga be awarded a contract. In 2007, petitioner was promoted to the position of Detective Specialist. On March 12, 2010, petitioner and Nanninga were arrested, and both pled guilty to one count of Offering a False Instrument for Filing in the Second Degree, a Class A misdemeanor. (Penal Law § 175.30). As part of the plea agreement, petitioner and Nanninga were jointly required to pay $25,000 to the NYPD as restitution, and were precluded for life from submitting public bids, or applying for contracts or working for any agency of the City or State of New York. Nanninga was required to forfeit her contract with the NYPD to provide for the care of retired NYPD horses. Petitioner agreed to file for service retirement from the NYPD. Both defendants agreed that their job duties at any corporation, individual, joint venture, subcontractor, or any other employer would not include "any direct or indirect work related duties that connect to or affect the employer's business with the City or State of New York and its agencies," if ever defendants' employer or future employer did business with the City or State of New York. (Verified Answer, Ex 3; People v Depamphilis, Crim Ct, NY County, Sciarrino, J., Mar. 12, 2010, docket no. 2010NY019168.)

Petitioner was also served with formal departmental disciplinary charges. It is undisputed that this was the first time in petitioner's career that he was served with formal departmental disciplinary charges. The Charges and Specifications, dated March 15, 2010, charged petitioner was charged with the following:

"Said Detective Richard Depamphilis, assigned to the Mounted Unit, on or about and between March 15, 2006 and December 31, 2006, while acting individually and in concert with Vicki Nanninga, knowing that a written instrument, to wit, an application for vendors to care for horses retired from the Department's Mounted Unit, contained false information, offered and presented it to the Assistant Commissioner of the Contract Administration Unit, a public office, with the knowledge and belief that it would be filed with the Assistant Commissioner of the Contract Administration unit, and become part of the records of such public office."

(Answer, Ex 4.)

Petitioner apparently executed a "Negotiated Settlement" dated June 3, 2010, which states, in pertinent part:

"I understand that if this Negotiated Settlement is approved by the Police Commissioner, the penalty against me will be as follows:
I shall forfeit all time, pay, and benefits for the period while under suspension, to wit: from March 12, 2010 to April 12, 2010, for a total of thirty-one (31) days; and I shall forfeit twenty-nine (29) vacation days. This is a combined total of sixty (60) penalty days.
Respondent agrees to immediately file for SERVICE RETIREMENT. Respondent will not file for SERVICE RETIREMENT unless and until this Negotiated Settlement is approved by the Police Commissioner. Respondent agrees not to withdraw or rescind the application for a SERVICE RETIREMENT once filed pursuant to this Negotiated Settlement."

(Verified Answer, Ex 5.) Petitioner and his attorney also apparently signed a document (which respondents refer to as an acknowledgment), dated June 3, 2010, which states, in pertinent part:

" NOTE: THIS AGREEMENT IS SUBJECT TO APPROVAL OF THE POLICE COMMISSIONER
* * *
In the event that... any agreement concerning a proposed penalty is rejected by the... Police Commissioner, no statements by the Respondent or/his her Attorney made in connection with this agreement, will be admissible against the Respondent. The Respondent's rights and privileges will remain unaffected, and the Department's disciplinary process will proceed as if plea negotiations had never taken place. Additionally, it is understood that the Police Commissioner retains all rights, privileges, and discretion granted him under applicable law as if plea negotiations had never taken place."

(Verified Answer, Ex 6.)

Respondents admit that the NYPD Department Advocate recommended approval of the negotiated plea agreement, which was endorsed by First Deputy Commissioner Rafael Pineiro. However, on November 29, 2010, ...


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