IN RE: Application of Bentley COTTEREL

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Bentley COTTEREL, Petitioner-Appellant, For a Judgment, etc., v. CITY OF NEW YORK, et al., Respondents-Respondents.

Decided: February 25, 1999

SULLIVAN, J.P., ROSENBERGER, WALLACH, TOM, JJ., Laura Dilimetin, for petitioner-appellant. Jane S. Earle, for respondents.

Determination of the respondent Police Commissioner dated May 5, 1997, which found the petitioner guilty of four specifications, and imposed the penalty of 40 days suspension without pay and a one-year disciplinary probation, modified, on the law and the facts, to the extent of annulling so much of the determination as found the petitioner guilty of specifications one, two and three, vacating the penalty and remanding the matter to respondents for the imposition of an appropriate penalty in accordance herewith, and the proceeding brought pursuant to CPLR Article 78 (transferred to this Court by order of the Supreme Court, New York County [Robert Lippmann, J.] entered October 22, 1997) is otherwise disposed of by confirming the determination, without costs and disbursements.

Petitioner was charged by the Police Department with dereliction of duty arising from his purported absence from a directed assignment.   However, since the Department's own record does not set forth substantial evidence in support of the determination as to three of the four specifications, as to those we annul and vacate, and remand on the final specification, which we uphold, for imposition of an appropriate penalty.

The Department's only witness at the administrative hearing was petitioner's supervising officer, Lt. Richard Cennamo.   Cennamo testified that on May 28, 1996 he assigned petitioner to patrol the 18th Avenue subway station in Brooklyn from 7:00 PM to 7:30 PM. The post at that location includes both the northbound and southbound sides of the station, which do not have mutual visibility in all locations, and the mezzanine platform bridging the platforms.   Cennamo arrived at the post at 6:50 PM to “scratch,” or read and sign, petitioner's memo book, and walked south along the southbound platform and looked at both platforms without locating petitioner.   Cennamo indicated that he was paying close attention to petitioner as a consequence of information relayed to him by another supervising officer that during recent months, petitioner had been unresponsive to radio contacts.   When Cennamo passed the token booth at 7:00 PM, the token clerk indicated that he had seen an officer earlier.   At 7:05, when a southbound train arrived, Cennamo walked the southbound platform, again not seeing petitioner, though he did see him at 7:15 on the mezzanine bridge, apparently arriving from the northbound platform.   Cennamo conceded that he had not checked the northbound platform.

Petitioner's documentation in his memo book that he had been in the vicinity of the token booth at 7:00 PM was directly challenged by Cennamo, who informed petitioner that he had been there himself at that time.   Petitioner, though, testified that he had arrived at the station at 6:05 PM, conversed with the token clerk, and returned at 6:40 PM after a short dinner break, spoke again to the token clerk, thereafter spoke to a vendor until about 7:00 PM, and then went to patrol the northbound platform, from which he was returning when Cennamo accosted him.

Cennamo issued a verbal reprimand, as he had on two prior occasions.   Cennamo testified that in response, petitioner became agitated, accused Cennamo of harassing him, and, walking away, ignored Cennamo's directive to stop.   Petitioner contended that Cennamo scuffled with him during an exchange, causing petitioner to bang his head on a wall, and that Cennamo thereafter interfered with petitioner's attempt to contact his PBA representative.   When Cennamo demanded petitioner's weapon, petitioner tossed it across a bench to him, after which Cennamo suspended him and took his shield.   Petitioner's witness, Police Officer Robert Kelly, who drove Cennamo to the station at about 7:00 PM, could not confirm Cennamo's claim that petitioner had been shouting, but did see petitioner toss the gun across the bench.   Petitioner, claiming illness, called for medical help.   Cennamo radioed for a patrol car, indicating that petitioner appeared to be out of control and a danger to himself and others, and, when it arrived, directed that petitioner be taken to the hospital.   Police Officer Paul Cox, the PBA representative, had heard petitioner, who sounded calm (a characterization also voiced by Kelly), call for medical assistance.   At the hospital, petitioner told Cox that Cennamo, who had been badgering him, pushed him against a wall, but he conceded walking away from Cennamo.

Petitioner thereafter filed a complaint against Cennamo, alleging that since a 1992 altercation between the men, Cennamo had been stalking him, had consistently filed poor evaluations of him, and had him removed from motor patrol.   Petitioner, to rebut evidence of malingering, presented record evidence that he was a 12-year veteran with several commendations, one for having served for six years without taking a sick day.

 Despite some evidence of personal acrimony between the supervisor and petitioner, and of petitioner's past instances of unprofessional conduct, the dispositive consideration is whether in this case each of the four charges was supported by substantial evidence (Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193).   Even crediting Cennamo's testimony, the evidence fails to establish petitioner's absence from his assigned post at the designated time.   Although Cennamo seems to have made a peremptory attempt to verify petitioner's presence, he does not seem to have looked very far, in contrast with prior instances that day.   Petitioner's assigned post covered the entire subway station.   Cennamo only walked along the southbound platform and did not physically check the northbound platform or the mezzanine level.   It was established that certain parts of the northbound platform were not visible from the southbound side.   Cennamo admitted that petitioner could have been in one of the passageways that abut the northbound platform.   Petitioner also could have been on the mezzanine level.   Cennamo did not radio the petitioner to track his location, as he did earlier in the day when he checked on petitioner at the New Utrecht Avenue station.   Moreover, certain portions of Cennamo's testimony were contradicted by the testimony of Police Officer Kelly.   Cennamo testified that he arrived at the token booth near the 18th Avenue entrance on the southbound platform at 7:00 PM. Kelly testified that they arrived outside the station at the 17th Avenue entrance at 7:00 PM. The distance from the 17th Avenue entrance to the token booth in issue is approximately 800 feet, placing in doubt Cennamo's claim that he had been at the token booth in question at 7:00 PM.

 Accordingly, we annul specifications one through three, relating to petitioner's absence from an assigned post and the making of inaccurate memo book entries, necessarily annulling the sanctions imposed thereon.   However, the record supports the finding of insubordination, and on that basis we confirm specification four.

 The hearing officer, whose recommendations were approved in toto by the Commissioner, found that these violations did not, by themselves, warrant the penalty imposed.   Rather, though conceding that no specifications otherwise had been filed against petitioner while he served on the presently constituted Police Department, he found that the present specifications in combination with petitioner's disciplinary history while assigned to the former Transit Police warranted termination.   The hearing officer also alluded to the Transit Police conducting disciplinary matters differently, suggesting in the decision that the former Department might have failed to convey the unacceptability of such behavior.   We find this latter speculation unacceptable as a basis upon which to impose the subject sanction.   Given our present disposition, in any event, the penalty imposed cannot stand, and we remand for the imposition of a penalty appropriate only to specification four, with speculation about the possible leniency of a prior tribunal not to be considered.

I would confirm the determination, since, in my view, the findings of guilty as to all four specifications are supported by substantial evidence.   According to Officer Cennamo's testimony, he arrived at the 17th Avenue exit, “the closed end,” of the 18th Avenue stop on the N line subway station at 6:50 p.m. and, using his Transit Authority key, entered the station.   He inspected the closed end and, after walking down the stairs, the southbound platform.   He walked across to the main token booth and, at 7:00, spoke to the token clerk, who told him that he had seen an officer “earlier, before [Cennamo's] arrival, come out of the room but he ha[d]n't seen one since.”   Cennamo returned to the southbound platform and when the southbound N arrived at 7:05, he inspected the train and the southbound platform area, finding no officer present.   He returned to the booth at about 7:15 and again asked the clerk if he had seen the officer.   The clerk repeated what he had told Cennamo earlier.   At that point, Cennamo walked to the bridge area, the mezzanine, walking northbound toward the northbound platform, where he encountered petitioner at 7:15.   When he asked petitioner where he was and at what time he arrived, petitioner laughed and said, “[W]hat does it matter, I'm here now.”   Cennamo told petitioner that it did matter and that he'd like to know what time petitioner arrived.   According to Cennamo, petitioner “kept laughing, what does it matter, I'm here now.”   Cennamo asked for and examined petitioner's memo book, which had an entry that petitioner was present on the mezzanine, in the booth area, at 7:00.   Cennamo told petitioner that that was impossible because he, Cennamo, had been there at that time.

Our inquiry is limited to whether the determination is supported by substantial evidence, which has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.”  (People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997;  quoting 300 Gramatan Ave. Assocs. v. State Div. Of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183.)   Cennamo's testimony, credited by the Administrative Law Judge, that petitioner was not present at the post to which he had been assigned and that he was not present at the token booth at 7:00 as he had written in his memo book, suffices as substantial evidence of respondent's guilt of the first three specifications.

Finding that the evidence fails to establish petitioner's absence from his assigned post, the majority reasons that his post covered the entire subway station and that Cennamo did not check the northbound platform or the mezzanine level, where petitioner could have been at the relevant time.   Since, however, petitioner testified that he was present at the token booth, talking to the clerk, at 7:00, at which time he made an entry in his book, the question is not whether petitioner was somewhere in the station at the critical time, but whether he was at the token booth at that time.   And Cennamo's testimony constitutes substantial evidence that he was not.

The majority is also concerned that Cennamo's testimony that he arrived at the token booth at 7:00 was contradicted by Kelly's testimony that they arrived outside the 17th Avenue entrance at that time.   The court, however, “may not weigh the evidence or reject the choice made by [the administrative agency] where the evidence is conflicting and room for choice exists.”  (Matter of Stork Restaurant v. Boland, 282 N.Y. 256, 267, 26 N.E.2d 247, quoted in Matter of Collins v. Codd, 38 N.Y.2d 269, 271, 379 N.Y.S.2d 733, 342 N.E.2d 524;  Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 444, 522 N.Y.S.2d 478, 517 N.E.2d 193;  Matter of Sierra v. McGuire, 60 N.Y.2d 720, 469 N.Y.S.2d 74, 456 N.E.2d 1196.)

MEMORANDUM DECISION.

All concur except SULLIVAN, J.P., who dissents in part in a memorandum as follows: