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Morales v. Kelly

Supreme Court of New York, New York County

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,
v.
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.

Editorial Note:

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 ...


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