Introducing a video tape of an event as evidence in a judicial or quasi-judicial proceeding

Introducing a video tape of an event as evidence in a judicial or quasi-judicial proceeding
2013 NY Slip Op 06292, Appellate Division, First Department

The availability of video cameras for employee surveillance is becoming an important issue in terms of employee privacy and the expectation of employees to privacy at the work site. It may also become an issue should a video tape of an incident is introduced in the course of an administrative disciplinary hearing.

In any event, video tape evidence must be presented without modification as the decision in Principe v New York City Dept. of Educ. 94 AD3d 431, demonstrates.

In Principe the Appellate Division said that it appeared that the hearing officer gave “an inordinate amount of credit” to a portion of a video recording that had been altered from its original format so that it appeared frame by frame at one-second intervals rather than its original format of a continuous video recorded in real time. The court commented that this alteration to the videotape made what actually transpired during that incident unclear and equivocal.*

In contrast, in People v Hill, a criminal action, the Appellate Division said that Supreme Court “properly denied defendant's suppression [of video tape evidence] motion, explaining that the surveillance video tape “was adequately authenticated by the testimony of a detective who, while working a second job for a security company, hooked up the surveillance cameras to the video recorder and checked on a daily basis that the system was functioning properly.”

The Appellate Division decided that “The detective's testimony, when viewed in the light of common sense, supports the conclusion that the video tape accurately and completely depicted the events at issue.”

Further, said the court, “that the detective testified to the unaltered condition of the tape, and any gaps in the chain of custody went to the weight to be accorded the evidence, not its admissibility.”

* Decisions concerning use of video records include DiMichel v South Buffalo Railway Company, 80 NY2d 184, reargument denied, Poole v Consolidated Rail Corp, 595 NYS 2d 397, cert den 114 SCt 68, 510 US 816, rearg dism 610 NYS2d 156

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_06292.htm
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The penalty of termination imposed on petitioner was excessive in light of all the circumstances

The penalty of termination imposed on petitioner was excessive in light of all the circumstances
Principe v New York City Dept. of Educ., 2012 NY Slip Op 08568, Court of Appeals

The Court of Appeal, Judge Smith dissenting, said that Appellate Division [94 AD3d 43] “correctly determined that the penalty of termination imposed on petitioner was excessive in light of all the circumstances.”

The Appellate Division decided that “Given all of the circumstances, including the educator’s “spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue,” the penalty excessive and shocking to [its] sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].”

NYPPL's summary of the Appellate Division’s ruling is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/search?q=Principe

The Court of Appeals’ ruling is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08568.htm

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NYPER’s new e-manual A Reasonable Disciplinary Penalty Under the Circumstances - A Concise Guide to Penalties That Have Been Imposed on Public Employees in New York State Found Guilty of Selected Acts of Misconduct – is scheduled for publication in January 2013. For information about this e-manual send your e-mail to publications@nycap.rr.com with the word “Reasonable” in the subject line.

Disciplinary penalty imposed based, in part, the hearing officer’s reliance on an altered videotape of incident rejected

Disciplinary penalty imposed based, in part, the hearing officer’s reliance on an altered videotape of incident rejected

Principe v New York City Dept. of Educ. 94 AD3d 43

Found guilty of certain disciplinary charges, the employee appealed the termination of his employment by the New York City Department of Education. The Appellate Division granted his petition, agreeing with the holding by the Supreme Court that under the circumstances imposing the penalty of dismissal was excessive.

The Appellate Division said that it also agreed with Supreme Court’s view that “by discrediting [the teacher’s] entire testimony, the Hearing Officer failed to consider all the circumstances, including the disciplinary histories of the students involved, the context of the threatening environment in which the two incidents took place and that, at the time of the two incidents, [the teacher] was, as he testified, ‘only fulfilling [the] demands’ of his position as dean of discipline.”

Further, said the court, it appeared that the hearing officer gave “an inordinate amount of credit” to a portion of a video recording that had been altered from its original format so that it appeared frame by frame at one second intervals rather than its original format of a continuous video recorded in real time. The Appellate Division commented that this alteration to the videotape made what actually transpired during that incident unclear and equivocal.

While the Appellate Division said that it accepted the findings of the Hearing Officer's,* it agreed with Supreme Court that the evidence in this case demonstrates that the educator’s actions were not premeditated. Given all of the circumstances, including the educator’s “spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue,” the Appellate Division decided that the penalty excessive and shocking to [its] sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].

Noting that “lesser sanctions are available that would deter [the teacher] from engaging in this conduct in the future, the Appellate Division remanded the matter to the Hearing Officer for the imposition of a lesser penalty consistent with its decision.**

*

** Justices Friedman and Richter dissented in a memorandum by Justice Richter,

The decision is posted on the Internet at:

.http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02560.htm

Court considered employee's long unblemished service record in mitigating imposing the disciplinary penalty of dismissal "under the circumstances"

A tenured teacher [Educator], was charged with conduct unbecoming a teacher, misconduct, and insubordination for allegedly inappropriately restraining a female student who was trying to get past him. The matter proceeded to arbitration, resulting in a determination, after a hearing, finding Educator guilty of inappropriate conduct and the imposition of the penalty of termination of his employment with the school district. Educator then commenced a proceeding pursuant to CPLR Article 75 seeking to vacate the determination. Supreme Court denied Educator's petition and dismissed the proceeding. Educator appealed.

The Appellate Division held that there was a rational basis and evidentiary support for the finding that Educator committed the conduct with which he was charged by inappropriately restraining a female student who was trying to get past him. 

A video of the incident, which was admitted into evidence at the hearing, however, could be interpreted in more than one way. Citing Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d at 1013, the Appellate Division explained it must "accept the arbitrator's credibility determinations, even where there is conflicting evidence and room for choice exists".

Noting the decisions in Matter of Principe v New York City Dept. of Educ., 94 AD3d 431, affirmed 20 NY3d 963, the Appellate Division, in consideration of Educator's otherwise unblemished record of approximately 19 years as a teacher with the school district, opined "the penalty of termination of employment was so disproportionate to the offense as to be shocking to one's sense of fairness".

The Appellate Division then vacated the disciplinary penalty terminating Educator's employment and remitted the matter to the school district "for the imposition of a lesser penalty".

Click HERE to access the Appellate Division's decision posted on the Internet.

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A Reasonable Disciplinary Penalty Under the Circumstances.  The text of this NYPPL e-book focuses on court and administrative decisions addressing disciplinary penalties imposed on officers and employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For additional information and access to a free excerpt from this e-book click HERE.