Gerwer v Kelly

[*1] Gerwer v Kelly 2013 NY Slip Op 51350(U) Decided on August 15, 2013 Supreme Court, New York County Hagler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 15, 2013
Supreme Court, New York County

Stephen Gerwer, Petitioner,

against

Raymond W. Kelly as Police Commissioner of the City of New York, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, and THE CITY OF NEW YORK, Respondents.



104101/2012



Petitioner represented by: Cohen & Fitch, LLP, by Joshua P. Fitch, Esq. and Robert W. Georges, Esq., of counsel, The Woolworth Building, 233 Broadway, Suite 1800, New York, NY 10279; Telephone: 212-374-9115

Respondent represented by: Michael A. Cardozo, Corporation Counsel of the City of New York, by Benjamin J. Traverse, Esq., Assistant Corporation Counsel, 100 Church Street, Room 2-167, New York, NY 10007; Telephone: 212-788-0917

Shlomo S. Hagler, J.

Petitioner Stephen Gerwer ("Petitioner" or "Gerwer") moves by Order to Show Cause and Verified Petition, pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"), seeking a judgment (1) reviewing the determination dated June 27, 2012 by respondents Raymond W. Kelly, as Police Commissioner of The City of New York, The Police Department of the City of New York, and The City of New York's (collectively, "respondents") wherein they dismissed petitioner as a police officer in the Police Department of the City of New York retroactive to May 14, 2012 (See Exhibit "M" to the Verified Petition), (2) directing respondents to reinstate petitioner as a police officer with full benefits and (3) ordering a departmental hearing on the issue of the appropriate discipline. In lieu of an answer, respondents cross-move for an order pursuant to CPLR § 7804(f) and § 3211(a)(7) dismissing the Verified Petition on the ground that it fails to state a cause of action. Petitioner opposes the cross-motion.

BACKGROUND[*2]

In 1993, petitioner was appointed as a police officer for the New York City Police Department ("NYPD"). For all of his nineteen year career, petitioner was assigned to the 122nd Precinct in Staten Island.

Petitioner alleges that respondents instituted an "illegal summons/ticket quota" compelling police officers at the 122nd Precinct to issue a minimum of fifteen summonses per shift. Petitioner alleges that if the police officers did not comply with said quota, they would be severely disciplined and punished with loss of valuable overtime pay and/or transferred to a less desirable and more distant precinct from their residences.

Petitioner alleges that this quota system forced him and his fellow officers to make difficult choices as follows: (1) issue summonses to innocent people who may wrongly incur fines and points on their licenses, (2) record fake summonses to appear as though they were issued but would not harm innocent people, or (3) not issue the required summonses and be unjustly disciplined. Petitioner chose the second option because he did not want to harm innocent people and wrote thirty-seven fictitious summonses while on duty between May 5 and May 20, 2010.

In or about February, 2011, petitioner was charged with thirty-seven felony and misdemeanor counts of Penal Law § 175.25 (Tampering with Public Records in the 1st Degree), § 175.35 (Offering a False Instrument in the 1st Degree), § 175.05 (1) (Falsifying Business Records in the 2nd Degree), and § 195.00(1) (Official Misconduct). (See Exhibit "K" to the Verified Petition). On May 14, 2012, petitioner pled guilty to three misdemeanor counts of Falsifying Business Records in the 2nd Degree under Penal Law § 175.05 (1). As a result, by letter dated June 27, 2012, respondent dismissed petitioner as a NYPD police officer retroactive to the date of his conviction on May 14, 2012, pursuant to Public Officers Law § 30(1)(e).[FN1]

Standard for Article 78 Proceedings

The standard to review an administrative determination that was not made as a result of a formal hearing, such as the challenged determination of June 27, 2012, is set forth in CPLR § 7803. The scope is limited to "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed (emphasis added)." CPLR § 7803.3. A court may not disturb an administrative determination unless there is no rational basis for it in the record or the action is arbitrary or capricious. (Matter of Pell v Board of Educ. of Union Free School Dist. No.1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222 [1974]). The arbitrary and capricious test relates to whether the administrative action should have been taken or is justified; or conversely, the action is without sound basis in reason and is generally taken without regard to the facts. (Id., at 231.)

ISSUE

The issue to be determined is whether it was arbitrary and capricious for respondents to automatically dismiss petitioner from employment for line of duty offenses based upon his guilty [*3]plea and conviction on three counts of Falsifying Business Records in the 2nd Degree (Penal Law § 175.05[1]), a Class "A" misdemeanor, without a hearing pursuant to Public Officers Law § 30(1)(e).

Public Officers Law § 30(1)(e)

The answer to this question stems from the interpretation of Public Officers Law § 30(l)(e). Public Officers Law § 30(l)(e) provides, in pertinent part, as follows:

1.Every office shall be vacant upon the happening of one of the following events before the expiration of the term thereof:

e)His [or her] conviction of a felony, or a crime involving a violation of oath of office...

There are the two categories that trigger the consequences of this self-executing statute: (1) conviction of a felony or (2) a crime involving a violation of an oath of office. This case concerns the second category.

In Matter of Duffy v Ward, 81 NY2d 127, 130 (1993), the Court of Appeals interpreted the statutory scheme and purpose of Public Officers Law § 30(l)(e). The Legislature established a statutory scheme of immediate dismissal based on the above two categories of criminal convictions. From this scheme, the Court of Appeals discerned that the Legislature intended "that no factual showing by the officeholder was needed, for under no circumstances could facts unique to the incident mitigate the violation of the public trust . . . arising from the criminal conviction." (Id., at 133). It then equated all felony convictions, whether on duty or off duty, to an oath of office crime which "should likewise be interpreted in such a way that no factual inquiry is needed to trigger automatic dismissal." (Id.)

The Court of Appeals concluded that "a misdemeanor conviction for conduct outside the line of duty will be a crime involving a violation of [the] oath of office' under Public Officers Law § 30(l)(e) only if the violation is apparent from the Penal Law's definition of the crime." (Id., at 134). The Court of Appeals then articulated that the clear purpose of the statute is to "assure citizens that their public officers are individuals of moral integrity' worthy of confidence and trust (citations omitted)." (Id.) With this in mind, the Court of Appeals limited the second category of crimes to misdemeanors that demonstrate a lack of "moral integrity" such as "willful deceit," "calculated disregard for honest dealings," "intentional dishonesty or corruption of purpose" inherent in the act prohibited by the Penal Law. (Id., at 134-135.)

Both parties have diametrically opposite viewpoints as to whether the Duffy interpretation of the Public Offices Law § 30(1)(e) applies to an officeholder who commits a crime involving a violation of his oath of office while in the line of duty. Petitioner posits that Duffy is limited to misdemeanor convictions arising outside the line of duty. This assumption is based on the hypothesis that a police officer in the line of duty often experiences quick, difficult and dangerous decisions that are not present in other employment or while outside the line of duty.[FN2] Taking [*4]petitioner's position to its logical conclusion would result in a lower standard for line of duty offenses than those crimes committed while outside the line of duty.

Petitioner asserts that this is a novel issue which has not been decided by the courts. However, this very issue was decided a year ago in Depamphilis v. Kelly, 36 Misc 3d 514 (Sup. Ct., NY County 2012, Stallman, J.) which held that:

Although the underlying conviction in Matter of Duffy was based on conduct that arose outside the line of duty, the Matter of Duffy standard is applicable irrespective of whether the underlying conduct was either on-duty or off-duty.

The Appellate Division, First Department has held that a police officer's line of duty conviction of aggravated harassment in the 2nd degree, a class "A" misdemeanor under Penal Law § 240.30, was a violation of his oath of office pursuant to Penal Law § 30(1)(e). (Pirozzi v Safir, 270 AD2d 2 [1st Dept 2000].) This holding seems to imply a higher standard for line of duty misdemeanor convictions than the Duffy standard because the elements of aggravated harassment in the 2nd degree do not demonstrate the requisite lack of "moral integrity" needed to trigger automatic dismissal pursuant of Public Officers Law § 30(l)(e).

This implication seems more logical than petitioner's argument advocating for a lower standard for line of duty crimes as the avowed purpose of this self-executing statute is to "assure citizens that their public officers are individuals of moral integrity' worthy of confidence and trust" (Duffy, 81 NY2d at 134). This "moral integrity" certainly must be part and parcel of the officeholder's milieu while acting within his or her scope of employment and in the line of duty. As such, a fortiori, the Duffy standard would be applicable to misdemeanor convictions for conduct arising in the line of duty under Public Officer's Law § 30(l)(e).

Applying the Duffy standard to this case, this Court must look solely to whether petitioner's misdemeanor conviction under Penal Law § 175.05 demonstrated a lack of "moral integrity" as defined above. Penal Law § 175.05 provides, in pertinent part, that:

A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:

1.Makes or causes a false entry in the business records of an enterprise . . .

Based on this definition and without resort to any factual inquiry, it is clear that Penal Law § 175.05 embodies and evinces a lack of "moral integrity." As such, it is clear that petitioner pled guilty and was convicted of a crime involving a violation of his oath of office under Public Officers Law § 30(l)(e).

Penalty

The courts may review and set aside a penalty imposed under certain circumstances. (Matter of Pell v Board of Educ. of Union Free School Dist. No.1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974].) The penalty is deemed shocking if it is "disproportionate" to the "harm or risk" to the agency or institution or to the public at large. (Pell, 34 NY2d at 234.) Other factors to be considered would be "deterrence" and "recurrence" by the individual charged and others who may repeat similar offenses. (Id.) The seriousness and deliberateness of the misconduct are to be weighed. [*5]

For instance, the Court of Appeals recounted that "habitual lateness" or "carelessness" involving substantial monetary loss would be treated less seriously than offenses as morally grave "larceny, bribery . . . and the like" even though smaller sums of money may be involved. (Id., at 234-235.) Moreover, the Court of Appeals highlighted serious offenses involving "grave moral turpitude and grave injury to the agency involved or to the public weal." (Id., at 235.) Indeed, where the misconduct was "deliberate, planned, [demonstrated] unmitigated larceny," the agency is entitled to impose an appropriate sanction to protect the "integrity and efficiency of their operations." (Id.)

Petitioner argues that even if his misdemeanor conviction may have involved a lack of "moral integrity," he should be permitted a hearing to explain the mitigating circumstances which would not warrant the shocking penalty of loss of his pension and other benefits for nineteen years of otherwise unblemished service. While petitioner is correct that a court may set aside a penalty that is disproportionate to the harm or shocking to the conscience, this remedy does not exist for a violation of Public Officers Law 30(l)(e).[FN3] In Duffy, the Court of Appeals acknowledged that the implementation of this self-executing statute is sometimes "harsh," but the balancing of the equities "must be struck in favor of the public when the officer's interest is weighed against that of the State's citizens." (Duffy, 81 NY2d at 131).

CONCLUSION

Accordingly, it is

ORDERED and ADJUDGED, that the respondents' cross-motion is granted and this Article 78 proceeding is dismissed with prejudice.

The foregoing constitutes the decision and order of this Court. Courtesy copies of this decision and order have been sent to counsel for the parties.

E N T E R :

Dated:August 15, 2013

New York, New YorkHon. Shlomo S. Hagler, J.S.C. Footnotes

Footnote 1:For purposes of deciding respondents' cross-motion to dismiss, this Court must accept the allegations in the Verified Petition as being true. Leon v Martinez, 84 NY2d 83 (1994). These allegations, if true, are astonishing, and may be violative of Labor Law § 215-a (see Exhibit "J" to the Verified Petition) and said practice should be condemned as it harms the public.

Footnote 2:This would be an internally inconsistent argument because Public Officer Law § 30 concerns not only police officers, but all officeholders as a whole, who may not face the same quick and dangerous decisions during the scope of their employment.

Footnote 3:Petitioner has presented troubling allegations that respondents enforced an "illegal" quota system that caused him to choose among very difficult options including falsifying summonses to avoid harm to innocent motorists and himself. Due process, which is the bedrock of our state and federal constitutions, would indicate that petitioner should have a right to a hearing to present these compelling mitigating circumstances and a hearing officer should balance the equities and impose a proportionate penalty which would be subject to judicial scrutiny. However, this Court is constrained to follow the prevailing law. This Court hopes the Legislature re-examines this self-executing statute and provides a mechanism for a hearing under certain limited circumstances in light of this case.