July 11, 2013
In the Matter of the Application of Eliseo MORALES, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,
Raymond KELLY, as the Police Commissioner of the City of New York; The New York City Police Department; and The City of New York, Respondents. No. 101996/12.
This decision has been referenced in a table in the New York Supplement.
Robert B. Kronenberg, Esq., Law Office of Robert B. Kronenberg, Esq., Hauppauge, NY, for Petitioner.
Benjamin J. Traverse, ACC MichaelA. Cardozo, Corporation Counsel, New York, NY, for Respondents.
BARBARA JAFFE, J.
By notice of petition and verified petition dated February 12, 2012, petitioner brings this Article 78 proceeding seeking an order reviewing and annulling respondents' determination to terminate his employment as a New York City Police Department (N.Y.PD) Police Officer. Respondents oppose the petition.
I. PERTINENT BACKGROUND
In 2009, the NYPD brought charges and specifications against petitioner for receiving a bribe, a violation of Penal Law 200.10, based on allegations that in 2007, he accepted $400 from an acquaintance in exchange for helping him recover a car which was in NYPD custody. (Verified Answer, dated Aug. 17, 2012 [Ans.], Exh. 1).
In 2010, the NYPD brought charges and specifications against petitioner for failing an integrity test conducted by the Internal Affairs Bureau (IAB) by not properly invoicing or vouchering property and not notifying the IAB of the possible misconduct of other police officers. ( Id., Exh. 2).
In or about October 2010, petitioner, who had suffered a stroke and heart attack earlier that year, applied for a disability retirement pension under the Heart Bill. In a decision dated January 14, 2011, the NYPD's Medical Board approved the application. (Verified Petition, dated Feb. 22, 2012 [Pet.], Exh. B).
By agreement dated February 1, 2011, petitioner agreed to defer the application and final determination by the Board of Trustees until the resolution of the disciplinary charges then pending, or upon " the Police Commissioner's approval of either a Negotiated Settlement or the disposition pursuant to trial." ( Id., Exh. D).
The departmental trial was conducted on July 20, 2011. The Deputy Commissioner of Trials recommended the termination of petitioner's employment, having found him guilty of soliciting and accepting a bribe, and based on petitioner's plea of guilty to failing the integrity test by failing to voucher property, failing to safeguard that property, transmitting a radio signal with the intent to conceal from the NYPD the existence of the property, failing to report misconduct related to the taking of the property, attempting to cover up the improper handling of the property, and trying to cover up the incident by initially failing to provide accurate information about it at an official NYPD interview. (Ans., Exh. 9).
In deciding the appropriate penalty, the Deputy Commissioner examined petitioner's service record and observed that petitioner had stated that he no longer wanted to be a police officer and wanted to retire pursuant to his disability application. He recommended termination based on his conclusion that the two charges against petitioner " display a pattern of conduct in which [petitioner] ignored his responsibilities as a police officer and abused the authority that comes with it. In addition, each case involves significant ethical failures." (Ans., Exh. 9).
It is undisputed that petitioner was employed as a police officer for 19 years, that he received " competent" or " highly competent" ratings in his final three performance evaluations, that he was awarded nine medals for Excellent Police Duty, four medals for Meritorious Police Duty, and three Commendations. (Pet.). He had also previously been the subject of two prior disciplinary proceedings, one in 1996 when he forfeited 60 suspension days and was placed on a one-year dismissal probation after being found unfit for duty due to overindulging in alcohol and discharging a round from his firearm during a dispute with his wife, and another one in 2001 when he forfeited 20 vacation days for being absent without permission while on sick leave and impeding an NYPD investigation. (Ans., Exh. 9).
A. Was the determination arbitrary and capricious?
In reviewing an administrative agency's determination as to whether it is arbitrary and capricious under CPLR Article 78, the test is whether the determination " is without sound basis in reason and ... without regard to the facts." ( Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 ; Matter of Kenton Assoc. v. Division of Hous. & Community Renewal, 225 A.D.2d 349 [1st Dept 1996] ). Moreover, the determination of an administrative agency, " acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record." ( Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v. State of N.Y. Div. of Hous. & Community Renewal, 46 A.D.3d 425, 429 [1st Dept 2007], affd 11 N.Y.3d 859  ). And, a hearing officer's credibility determinations are " largely unreviewable because the hearing officer observed the witnesses and was able to perceive ... all the nuances of speech and manner that combine to form an impression of either candor or deception." ( Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443 ; Lackow, 51 A.D.3d at 569).
Here, given the charges and findings, which rest on the credibility determinations of the hearing officer, it cannot be said, as a matter of law, that respondents' decision to terminate petitioner's employment was arbitrary and capricious. ( See Matter of Leone v. Kelly, 27 A.D.3d 294 [1st Dept 2006] [no basis existing to disturb credibility findings underlying hearing officer's conclusion as to petitioner's guilt] ).
B. Was the punishment disproportionate or excessive?
The standard for reviewing a penalty imposed after a hearing is whether the punishment imposed " is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." ( Matter of Pell, 34 N.Y.2d at 233; Matter of Kelly v. Safir, 96 N.Y.2d 32  ). A result is shocking to one's sense of fairness when:
the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct ... of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved.
( Matter of Pell, 34 N.Y.2d at 234).
In matters involving police discipline, " great leeway' must be accorded to the Commissioner's determinations concerning the appropriate punishment, for it is the Commissioner, not the courts, who is accountable to the public for the integrity of the Department .' " ( Matter of Kelly, 96 N.Y.2d at 38, quoting Matter of Berenhaus v. Ward, 70 N.Y.2d 436  ). Factors such as the loss of a pension and the employee's length of service may be considered as to whether a penalty is shocking to one's sense of fairness in certain circumstances. ( Id. ).
Here, the Deputy Commissioner found that petitioner had abused his authority as a police officer and engaged in specific ethical failures, and that such behavior evidenced a pattern of misconduct related to petitioner's authority as a police officer and the shirking of his official responsibilities. Moreover, petitioner had been previously disciplined for impeding an NYPD investigation. Thus, despite petitioner's numerous commendations, the penalty of termination is not shocking to one's sense of fairness where the behavior engaged in by petitioner calls into question his integrity, honesty, and judgment and, thereby, also impacts the integrity of the NYPD. ( See Matter of Brovakos v. Bratton, 254 A.D.2d 32 [1st Dept 1998] [penalty of dismissal not disproportionate to officer's conduct in wrongfully soliciting money from two rabbis for engaging in required official conduct, failing to voucher money thus obtained, and having information related to corruption involving member of police force and failed to report it]; see also Matter of Martinez v. Kelly, 24 A.D.3d 186 [1st Dept 2005] [penalty of termination not shocking as officer solicited and took cash from two motorists after he stopped them and threatened to issue them summonses]; Matter of Copello v. Kelly, 14 A.D.3d 323 [1st Dept 2005] [penalty of dismissal not shocking for petitioner's actions in assisting another in unlawful removal of cars from auto pound where he worked]; Matter of Taggart v. Safir, 260 A.D.2d 195 [1st Dept 1999] [dismissal upheld where officer failed to investigate allegation made against other officer, failed to notify commanding officer and/or IAB of allegation of serious misconduct involving NYPD member, and made false and misleading statements during official investigation; penalty not disproportionate given nature of petitioner's misconduct and fact that he was previously disciplined for similar violation]; Matter of Ward v. Ward, 159 A.D.2d 287 [1st Dept 1990] [dismissal appropriate penalty for officer's behavior in, among others, neglecting to properly safeguard or voucher money found in deceased person's pocket and lying to sergeant about location of money] ).
Although petitioner was provisionally approved for a disability retirement and has stated his desire to retire, the loss of his retirement benefits is a risk he took by engaging in the misconduct at issue. ( See Matter of Kelly, 96 N.Y.2d at 39-40 [while loss of pension may be significant consideration as to appropriate penalty when there is no grave moral turpitude or grave injury to agency involved, it did not apply to petitioner's behavior in issuing false certificates to others permitting them to carry firearms and lying to authorities, and thus dismissal was not disproportionate penalty]; see also Matter of Lomando v. Kelly, 33 A.D.3d 510 [1st Dept 2006] [termination of officer for making false and misleading statements to NYPD psychologists and ranking officer upheld; fact that petitioner was terminated after his application for disability retirement had been approved by Medical Board did not show bad faith as NYPD's disciplinary investigation was not completed until after Board's determination]; Matter of Averys v. Kelly, 214 A.D.2d 309 [1st Dept 1995], lv denied 86 N.Y.2d 703 [while NYPD may not terminate employee in order to prevent employee from collecting disability pension, pension may be denied as unintended consequence of termination if termination made in good faith] ).
Accordingly, it is hereby
ADJUDGED and ORDERED, that the petition is denied and the proceeding is dismissed.