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May 9, 2016

Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority


Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority
Gomez v Kelly, 2016 NY Slip Op 03582, Appellate Division, First Department [Gomez II]

Manuel Gomez, a New York City Police Officer, was found guilty of disciplinary charges that alleged he brandished his gun during the course of a violent off-duty domestic dispute, pointed the firearm at the civilians who were attempting to assist the victim, failed to comply with the responding police officers' instructions, and resisted being handcuffed. The penalty imposed by the New York City Commissioner of Police in Gomez II: termination of Gomez’s employment as a police officer.

Gomez appealed but the Appellate Division dismissed his petition explaining that the finding that he was guilty of the disciplinary charges in Gomez II was supported by substantial evidence, including testimony of civilian witnesses and police officers.  The court said that “[t]here exists no basis to disturb the credibility determinations of the Hearing Officer” and sustained the penalty imposed by the Commissioner, dismissal from the New York City Police Department.

In an effort to “mitigate” the penalty imposed, dismissal, Gomez argued that termination was excessive in light of his excellent service record in the department and in the military. The Appellate Divisions said that this argument was unavailing in light of his disciplinary history, citing Gomez v Kelly, 55 AD3d 305, reversed 12 NY3d 883 [Gomez I].

In Gomez I the Appellate Division said that substantial evidence supported the findings that Gomez violated [1] his commanding officer's order to terminate his involvement in a criminal investigation; [2] failed to take possession of drugs during a police department integrity test; [3] failed to voucher his helmet, mace and shield before leaving for active military duty; [4] retrieved his service handgun before the official date of his discharge from active military duty; and [5] failed to report a domestic incident to the department. The court also noted that “[t]here is no basis to disturb the hearing officer's rejection of [Gomez’s] explanations for these actions.”

The Appellate Division, however, held that the penalty imposed by the Commissioner, a one-year “dismissal probation” and a 30-day forfeiture of annual leave credits, was “excessive in light of the mitigating circumstances, i.e., [Gomez’s] several tours of active military duty, including a year in Afghanistan for which he was decorated, and the substantial pay lost in connection with his military service.”

The Commissioner appealed and the Court of Appeals reversed the Appellate Division’s ruling, explaining that it could not conclude that “the penalty . . . imposed by the Commissioner shocks the judicial conscience.”

The decision in Gomez I is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_07181.htm

The decision in Gomez II is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_03582.htm

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