The presiding hearing officer, NYPD's Deputy Commissioner - Trials, ruled that the CCRB was required to show by a preponderance of the credible evidence that the underlying facts, if proven in court, would constitute a crime in order to go forward with the disciplinary action. The Deputy Commissioner then found, "by a preponderance of the credible evidence", that Plaintiff was guilty of assault in the third degree, as charged in the first specification, in that Plaintiff acted recklessly in the course of his attempting to arrest an individual and his recklessness "was a significant factor" which contributed to the individual's death.
The Deputy Commissioner's Report to the Police Commissioner recommended Plaintiff's dismissal from the NYPD and the Commissioner approved the Report and Recommendation and issued a final order dismissing Plaintiff from the NYPD.
Plaintiff then initiated a CPLR Article 78 proceeding seeking a court order annulling the Commissioner's determination and directing his reinstatement. Plaintiff contended that the CCRB failed to present substantial evidence of his guilt and that the penalty of dismissal was shocking to the conscience.
The Appellate Division found that substantial evidence supported the conclusion that Plaintiff had "recklessly caused injury to [the individual] by maintaining a prohibited chokehold for 9 to 10 seconds after exigent circumstances were no longer present, thereby disregarding the risk of injury."
Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, and other decisions, the Appellate Division said it did not find the penalty imposed on Plaintiff "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness" and opined that in Matter of Alfieri, 38 NY2d at 977, "[c]onduct far less serious than [Plaintiff's] has been found by the Court of Appeals to have a "destructive impact ... on the confidence which it is so important for the public to have in its police officers".
Click HERE to access the text of the Appellate Division's decision.