November 20, 2018

Sick leave abuse


Sick leave abuse
People v Robert Patino, Nassau County Court, affirmed, 259 A.D.2d 503

Robert Patino, a Nassau County police officer, was convicted of "disability fraud" after a jury found that he had collected sick leave payments for more than three years while he was able to work. Patino was charged with sick leave abuse and falsifying his application for Retirement and Social Security Law §207-c disability benefits.

Although Patino claimed that his back injury prevented him from performing even light duty work, it was reported that he was video taped doing a number of physical activities including bending and diving.

Charges filed against Patino: (1) Offering a False Instrument for Filing in the First Degree (Penal Law §175.35); (2) Attempted Grand Larceny in the Third Degree (§110/155.35); (3) Grand Larceny in the Third Degree (§155.35) and (4) Defrauding the Government (§195.20).

Among his defenses, Patino argued that because he was the first police officer to be prosecuted on such charges, this constituted his being "selectively and vindictively prosecuted in violation of his Fourteenth Amendment Rights." This, he contended, required that the indictment be dismissed "in the furtherance of justice." He did not prevail. The penalty imposed: 5 years probation plus a $5,000 fine. In addition, the Court ordered Patino to reimbursing Nassau County the $17,500 it incurred while investigating the matter as restitution.

On the issue of selective prosecution, the parties agreed that Patino was the first Nassau County police officer to be prosecuted for filing allegedly fraudulent disability applications or for the alleged fraudulent use of sick leave.

This, said the Court, "while meaningful, is not controlling." There exists no per se ban on one or another type of new prosecution. In other words, the fact that no one had been prosecuted for similar offenses in the past did not preclude the County from prosecuting Patino.

The decision comments that in order to sustain a claim of selective prosecution, it must be proven that a law has been (a) "applied and administered by a public authority with an evil eye and (b) an unequal hand," a standard set out by the U.S. Supreme Court in Yick Wo v Hopkins [118 US 356].

In other words, said the Court, "(T)here must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some arbitrary classification," citing 303 West 42nd Street Corp. v. Kelly, 46 NY2d 684.

The Court further noted that the Nassau County District Attorney, not the Nassau County Police Department, was prosecuting the case. Although the Police Department did the initial investigation and fact-gathering concerning Patino, it was the District Attorney's Office that subsequently reviewed and evaluated the information and decided to prosecute.

Another argument made by Patino was that criminal action could not be taken against him until he had been given a General Municipal Law "§207-c hearing."  The Court said that there is nothing to indicate that utilization of such a civil, administrative procedure in any way precludes the District Attorney from proceeding criminally against Patino.

The Court refused to dismiss the action against Patino, holding that "[a] dismissal in furtherance of justice would have a significant impact upon the public's confidence in our justice system. When a police officer, sworn to enforce the law, is charged with a crime, the public's confidence in the system is eroded. An outright dismissal of the charges prior to trial would damage this confidence still further."


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