New York City's Police Commissioner is afforded "great leeway" in disciplinary matters

The New York City Police Commissioner rejected Plaintiff's negotiated disciplinary penalty of the loss of 30 vacation days and a one-year dismissal probation and set the matter for a disciplinary trial, at which the Police Department intended to "seek [Plaintiff's] dismissal." Plaintiff declined to withdraw his plea and instead proceeded to "a mitigation hearing." Following such hearing an Assistant Deputy Commissioner recommended the Plaintiff's termination from his position, which recommendation the Commissioner adopted.

Supreme Court denied Plaintiff's petition seeking to annul the Commissioner's determination which terminated Plaintiff's employment. Plaintiff appealed the Supreme Court's determination.

Finding that New York City's Police Commissioner is afforded "great leeway" in disciplinary matters, the Appellate Division:

1. Unanimously vacated the Supreme Court's judgment sustaining dismissal of the Plaintiff;

2. Treated the Plaintiff's petition as one which transferred the matter to the Appellate Division for de novo review pursuant to CPLR 7804(g); and

3. Upon such review, the Appellate Division unanimously confirmed the Commissioner's determination, denied the Plaintiff's petition, and dismissed the proceeding brought by the Plaintiff pursuant to CPLR Article 78.  

The Appellate Division's decision in this matter is set out below.

Matter of Bonifacio v Sewell

2024 NY Slip Op 02886

Decided on May 28, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 28, 2024
Before: Singh, J.P., Kennedy, Rodriguez, Pitt-Burke, Michael, JJ.

Index No. 152332/22 Appeal No. 2379 Case No. 2022-05305

[*1]In the Matter of Yonathan Bonifacio, Petitioner-Appellant,

v

Keechant Sewell et al., Respondents-Respondents.

Worth, London & Martinez, LLP, New York (Stuart Gold of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondents.

Judgment (denominated an order), Supreme Court, New York County (Laurence L. Love, J.), entered October 28, 2022, denying the petition to annul the determination of respondent City of New York Police Department (NYPD), dated December 16, 2021, which terminated petitioner's employment, unanimously vacated, the petition treated as one transferred to this Court for de novo review pursuant to CPLR 7804(g), and, upon such review, the determination unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed, without costs.

Because the petition raises an issue of substantial evidence, we treat it as though it had been properly transferred to this Court in accordance with CPLR 7804(g) (see Matter of 16 Cypress Ave Realty LLC v New York City Loft Bd., 215 AD3d 418, 419 [1st Dept 2023]).

Petitioner, who was a probationary NYPD sergeant before he was demoted to officer in connection with this case, pleaded guilty to disciplinary charges and specifications alleging that, in August 2020, he "engaged in conduct prejudicial to the good order, efficiency, or discipline of [the NYPD] by displaying offensive racial material" when he disseminated two memes, without commentary, in a private group chat to his nine subordinates. The first meme used racist language and imagery to mock the May 2020 killing of George Floyd by a police officer, and the second meme stated, among other things, "F—- 'Black Lives Matter'" and "F—- Looting Hoodrats." The Police Commissioner rejected petitioner's negotiated penalty of 30 vacation days and a one-year dismissal probation and set the matter for a disciplinary trial, at which the NYPD intended to "seek[] [petitioner's] dismissal." Petitioner declined to withdraw his plea and instead proceeded to a mitigation hearing. After the hearing, an Assistant Deputy Commissioner (ADC) recommended a penalty of dismissal, which the Commissioner adopted.

Despite petitioner's contention otherwise, he was not disciplined for uncharged misconduct. The charge of disparaging remarks carries a presumptive aggravated penalty of termination, while the charge of displaying offensive material carries a presumptive aggravated penalty of 30 vacation days. The ADC expressly found that petitioner had violated NYPD policy prohibiting the display of offensive racial material, as charged in the charges and specifications. However, the ADC further found that, given the circumstances of petitioner's conceded violation, his conduct was indistinguishable from the type of conduct punishable as a disparaging remarks offense, and therefore determined that the penalties associated with disparaging remarks more appropriately addressed petitioner's conduct.

That the penalty range for disparaging remarks informed the ADC's decision to depart from the presumptive penalties for display of offensive material, a departure that was permissible under the NYPD's disciplinary system penalty guidelines, does not amount to disciplining [*2]petitioner for uncharged misconduct in violation of his due process rights (see Mayo v Personnel Review Bd. of Health & Hosps. Corp., 65 AD3d 470, 472 [1st Dept 2009]). On the contrary, the charges notified petitioner in detail of the conduct charged (see Wolfe v Kelly, 79 AD3d 406, 407, 410 [1st Dept 2010], appeal dismissed 17 NY3d 844 [2011]). In addition, petitioner was on notice that he faced potential dismissal, as the charges and specifications alleged that he "engaged in conduct prejudicial to the good order, efficiency, or discipline of [the NYPD]," which carries an aggravated penalty of termination under the Guidelines. The Commissioner's rejection of the negotiated penalty also specifically notified petitioner that the NYPD would seek dismissal.

Furthermore, respondents' determination is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). Petitioner's guilty plea, his testimony admitting that he sent the two memes and that he believed them to be offensive, and the facially offensive posts "established such relevant proof as a reasonable mind may accept as adequate to support the determination that petitioner[] [was] guilty of the offenses charged" (Matter of Abbate v Bratton, 232 AD2d 233, 234 [1st Dept 1996]). Petitioner's failure to include any comment on the messages, either contemporaneously or afterward, undermines his argument that he did not intend the memes to be offensive, but to communicate that he disapproved of them.

The penalty of dismissal is not "so disproportionate to the offense as to be shocking to one's sense of fairness" (Matter of Kelly v Safir, 96 NY2d 32, 38 [2001] [internal quotation marks omitted]). Although the penalty exceeded the aggravated presumptive penalty for display of offensive material, it did not exceed the aggravated penalty for conduct prejudicial to the good order and efficiency of the department. In any event, the Commissioner has the discretion to depart from the Guidelines and is afforded "great leeway" in disciplinary matters (id.at 38 [internal quotation marks omitted]; see also Administrative Code of City of NY § 14-115).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 28, 2024