Matter of Boyle v Kelly

[*1] Matter of Boyle v Kelly 2006 NY Slip Op 50550(U) [11 Misc 3d 1073(A)] Decided on February 15, 2006 Supreme Court, New York County Richter, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 15, 2006
Supreme Court, New York County

In the Matter of John Boyle, Angelo Baez, Tyrone Kirton, Mark Piscopo, Thomas Ulrich and Christopher Johnson, Petitioners,

against

Raymond Kelly, Commissioner, New York City Police Department, Respondent.



111387/2004

Rosalyn Richter, J.

This Court conducted a hearing on petitioners claim that they were entitled retroactively to be promoted to the rank of Detective 3rd grade. The crucial issue in this case is whether petitioners performed the duties of detectives for more than eighteen months and therefore, pursuant to NYC Administrative Code 14-103, are entitled to the promotion they seek. Petitioners contend that the work they performed in the 75th precinct as part of a CBRT/SOU unit was akin to the work of the detectives assigned to the NYPD Warrant Division. Before addressing the substance of petitioners' claims, the Court will address respondent's argument that this proceeding is untimely and barred by the doctrine of laches.

Lt. William Wanser, who testified at the hearing, was the former commanding officer of the CBRT. He credibly testified that in May 2001, he prepared a memorandum requesting detective track designation for the CBRT unit, which he submitted to Deputy Chief Secreto, the Commanding Officer of the 75th Precinct. He further testified that the memorandum was returned to him for corrections by Secreto, and he re-submitted it in September 2001. He never heard anything further about this from Deputy Chief Secreto or anyone else. In part, he attributed this to the fact that the police department was focused on emergency matters relating to the attacks on September 11th.

Deputy Chief Secreto, who also testified at the hearing, confirmed that he had received the original memorandum and returned it to Lt. Wanser for corrections, but stated that Lt. Wanser never re-submitted it to him. On this point, the Court credits Wanser and not Secreto. It was apparent that this matter was not of great concern to Secreto and therefore it seemed likely that he would not have focused, or even remembered years later, whether he got the memorandum back with the corrections. This could not have been a matter of any particular significance to him given the hectic and stressful events following September 11th. On the other hand, Lt. Wanser was well aware that the individuals in his unit wanted the promotion and the Court accepts his testimony that he made the corrections and re-submitted it. [*2]

Respondent argues, first, that Secreto's return of the memorandum to Lt. Wanser was a "rejection" of the request and the four month limitation period commenced when the document was returned. However, as noted above, the Court concludes that the memorandum was re-submitted and thus, this argument is not supported by the Court's factual findings. In any event, the return of the document for "corrections" was not a rejection on the merits and would not constitute a final determination for purposes of the Article 78 limitations period. Respondent further argues that even if the Court accepts Wanser's testimony that the memorandum was re-submitted in late September 2001, Secreto's failure to forward the request through the chain of command constituted final action triggering the four months limitations period. However, there is no indication in the record that the petitioners were ever told that Secreto was not taking any action or that he was rejecting their request. Thus, it appears that the request was in limbo and no final action was taken on it after Wanser re-submitted it.

In March 2004, petitioners' Supervising Sergeant, John Calpakis, submitted to Chief Marino, the commanding officer of the 75th precinct, another request on petitioners' behalf that they be promoted to detectives. Chief Marino recalled getting the document and testified that it was not his place to sign it. He indicated that it should have been submitted to the Chief of Detectives, but he would not have signed the request in any case because he did not believe the petitioners were doing detective track work. Petitioner Johnson testified that in May 2004, he was told by Sgt. Calpakis that Chief Marino was not endorsing the promotion recommendation or forwarding it through the chain of command. The instant proceeding, which was commenced in August 2004, was timely since it was brought within four months of Johnson's receipt of this information from his supervising sergeant.

The fact that petitioner's waited a few years to re-file their request, without a showing of prejudice, is not enough to sustain a defense of laches. Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 816 (2003). Here, respondent points to no prejudice resulting from the delay.[FN1]

The burden of establishing their entitlement to relief rests on the petitioners who must show that the Police Department acted arbitrarily and capriciously in finding that their duties did not qualify them for detective status. As the First Department noted in

Scotto v. Giuliani, 288 AD2d 102, 104 (lst Dept. 2001), the purpose of the legislative amendment at issue here is to "prevent the department, for budgetary reasons, from using non-detective track officers in detective track positions, while denying those officers the benefits of those positions." The Court further noted that, "(l)ogically, this does not preclude the department from using non-designated positions to undertake work that happens to have some investigative characteristics." In Marti v. Kerik, 307 AD2d 836, 836-837 (lst Dept. 2003) (internal quotation marks and citation omitted), the Court noted that the focus should be whether the "Commissioner's classification of petitioner's position is rational, . tested by whether an individual officer, for a period of 18 months, performed work comparable to that performed by police officers classified as detectives." The Marti decision cites to Finelli v. Bratton, 298 AD2d 197 (1st Dept. 2002), in which the Appellate Division considered whether the investigatory functions performed by the officers were [*3]merely ancillary to their mainly non-investigatory "anti-crime" duties, and ultimately upheld the Police Department's decision not to grant petitioners detective track credit.

Similar to the anti-crime officers in Finelli, the Court finds that the investigatory functions performed by petitioners were ancillary to their non-investigatory duties and were different than the functions performed by the Warrant Squad Detectives. The unit here was a joint task force of the Police Department and the Probation Department whose primary function was to visit probationers at home. The officers in the unit would sometimes question probationers about their knowledge of unsolved crimes, but according to Chief Secreto, they would then bring that information to the detectives. The Chief credibly explained that all police officers conducted debriefings when they arrested individuals or brought them into the precinct, but the members of this unit, like uniformed officers, would then have to pass the information on to the detectives for enhancement.

Chief Secreto explained that it was not the primary function of the unit to execute warrants, unlike the warrant squad, but rather the officers in the unit had a wide range of functions, which could be considered crime prevention, such as making home visits. Sgt. Donovan, whom this Court also found credible, explained that the teams of probation and police officers would fill out "hit sheets" to indicate whether someone was home when they visited and they would conduct about fifteen to twenty home visits per day. They would make arrests if the probationer had contraband on his or her person, or an active warrant, though there was testimony that any police officer would also do this. It was difficult to see how any investigation would be required prior to arresting someone who actually had an open warrant or illegal substances in his possession.

Sgt. Donovan succinctly summarized the difference between a detective's caseload and the work done by petitioners. He explained that a detective would follow up on a range of details including calling the complainant, showing photographs to people and completing the documentation, such as DD5s, which would be required if the case went to court. In contrast, the police officers in the CBRT/SOU merely were checking on a limited number of people in their joint caseload, many of whom had no warrants or for whom no investigatory activity was required.

Sergeant Joseph Addoloarato, another witness called by respondent, also logically explained the difference between this unit and the warrant squad. The sergeant explained that he was a training sergeant for the warrant squad and he showed great familiarity with the work of that unit. He testified that they are notified through a computer program that a warrant has been issued and each detective has a significant number of warrants to investigate. That investigation is focused on trying to locate the person to make an arrest, and there is no other purpose to the unit's work. In contrast, the petitioners had a range of tasks and making arrests on warrants for probationers was, at best, an ancillary activity.

Respondent's witnesses also established that there were no detectives in the CBRT/SOU unit and thus, petitioners did not work "side by side" with detectives. See generally Scotto v. Dinkins, 85 NY2d 209 (1995). Sgt. Donovan also explained that the members of the unit spent time doing routine patrol work including quality of life enforcement, prostitution sweeps, and patrols of buildings to ensure that no individuals were engaged in criminal trespass.

The Court concludes that petitioners tried to exaggerate the scope of their investigatory duties, and minimize their other functions at the trial. For example, petitioners testified that they had a "caseload," but it was apparent that this was not an investigatory caseload. Rather, it was a group of probationers that they were responsible for overseeing in conjunction with the probation department. Petitioners described their home visits as "debriefings," but they seemed more like routine visits to ensure that the probationers were in compliance with the terms and conditions of [*4]their probation. Petitioners did not dispute that Chief Marino ordered them to make quality of life arrests, engage in prostitution sweeps and do some other patrol activities. They contended this did not take up significant time because of the high volume of quality of life crime in the precinct which made it relatively easy to identify and arrest individuals engaged in such illegal activity. However, their acknowledgment that they performed a broad range of non-investigatory work undermined their effort to convince this Court that a substantial part of their duties were similar to those of detectives.

A good example of what this Court concludes was an attempt to shade the exact nature of petitioners' work occurred during the testimony of John Boyle. Officer Boyle testified on direct that he executed search warrants against probationers, but on cross-examination, he admitted that he personally was only involved in the execution of two search warrants during the years he was in the CBRT/SOU unit. Officer Boyle also testified that the CBRT unit was responsible for executing tactical plans, but then admitted that such plans were often used in prostitution sweeps, an activity which would not be considered investigatory detective track work.

Petitioner Johnson testified that the members of the unit did "debriefings." After closer questioning, however, he acknowledged that whenever he conducted a home visit, he considered that an investigation because if the person was not there, they would try to find the individual. He also considered it an investigation because during the home visit, he might ask the probationer about their friends and patterns of behavior. Although Officer Johnson cannot be faulted for trying to obtain information beyond the purpose of his job, which was to make a home visit for probation, the Department's decision not to consider this as investigatory activity equivalent to detective work is not irrational. Rather, it seemed to be the type of questioning a committed, hard-working officer might engage in if they thought it could help in crime prevention.

Elisa Trillo, the Branch Chief of Probation, who testified at the trial confirmed that the officers obtained information during the home visits that led to the apprehension of suspects in the precinct. However, a careful reading of the trial testimony shows that the officers may have been doing some of this work without the approval and direction of Chief Marino or as part of their primary job function. Petitioner Johnson also acknowledged that when Lt. Wanser would give him an open 61, that case also was assigned to a detective. Johnson admitted that it was the detective's case to close and therefore, technically that case was not assigned to him. Sgt. Donovan also confirmed that Johnson made some arrests from open 61s, but this was not part of his assignment.

Lt. Wanser, who testified for petitioners, actually offered some testimony that supported respondent's view of this case. Lt. Wanser testified that the CBRT/SOU unit would do pre-sentencing reports by visiting the potential probationers home and also would verify if the person was working. The Lieutenant acknowledged that the officers were out in the field at least four days per week visiting probationers at their home or places of work, which undercut petitioners' argument that they were spending significant time investigating criminal activity or locating probationer's with warrants. He admitted that at least 25 % of their time was spent on these home visits, and confirmed the testimony of the respondent's witnesses that the members of the unit also had regular enforcement functions including issuance of quality of life summonses also known as "C-summonses."

Accordingly, in light of the evidence credited by this Court which showed that petitioners had numerous other responsibilities that were not typical of those given to detectives, that they did not work side by side with detectives and that their position had never been designated a detective track position, respondent's decision not to give them detective track credit for the time in the unit [*5]is neither arbitrary or irrational, and the Article 78 petition should be dismissed. This constitutes the decision, order and judgment of the Court.

February 15, 2006________________________

Justice Rosalyn Richter Footnotes

Footnote 1: Respondent seeks to characterize the petition as a mandamus to compel, which respondent contends does not require a showing of prejudice for the equitable doctrine of laches. This Court need not address this issue since the petition here argues that respondent's actions are arbitrary and capricious and this is more properly characterized as a mandamus to review.