A criminal "acquittal" is not proof of innocence of misconduct and does not preclude a proceeding in a civil forum such as an administrative disciplinary proceeding

 

Matter of Joseph v Sewell

2024 NY Slip Op 02985

Decided on May 30, 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 30, 2024
Before: Kern, J.P., Singh, González, Pitt-Burke, Rosado, JJ.

Index No. 159873/22 Appeal No. 1987 & M-2024-01240 Case No. 2023-05198

[*1]In the Matter of Jose J. Joseph, Petitioner,

v

Keechant L. Sewell etc., et al., Respondents.

       The Sanders Firm, P.C., New York (Eric Sanders of counsel), for petitioner.

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

Determination of respondent Police Department of the City of New York (NYPD), dated July 20, 2022, which found petitioner guilty of engaging in an off-duty physical altercation and failing to remain on the scene, and terminated petitioner's employment, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Judy H. Kim, J.], entered on or about April 19, 2023), dismissed, without costs.

Substantial evidence supports the NYPD's determination that petitioner engaged in a physical altercation with his then intimate partner, Annette (this Court adopts the agency's use of a pseudonym to protect Annette's privacy). Annette testified that petitioner "slapped" her in the face, "choked" her with his hands, and put her in a "headlock," causing her to lose consciousness until petitioner roused her by striking her abdomen and asking whether she was dead. Annette's testimony was corroborated by her consistent statements to NYPD officers who responded to her 911 call, photographs showing marks on her neck and lacerations to her face and lip, which petitioner acknowledged were not there earlier in the evening, and medical records documenting her abrasions and complaints of pain. Petitioner did not dispute that he did not remain on the scene after the incident. The Hearing Officer expressly credited Annette's testimony about the assault and found petitioner's denials "contrived, self-serving, and incredible," determinations which this Court may not displace (see Matter of Amann v New York City Loft Bd., 262 AD2d 234, 234 [1st Dept 1999]).

Petitioner's acquittal of criminal charges arising from the assault does not undermine the NYPD's determination that his conduct warranted professional discipline. The NYPD can impose discipline for a broad range of "conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer," even if that conduct is not criminal (Administrative Code of City of NY § 14-115[a]). A criminal "acquittal is not proof of innocence of misconduct, and does not preclude a . . . proceeding in a civil forum," such as an administrative disciplinary proceeding, "where the standard of proof is lower" (Matter of Strier, 190 AD2d 140, 143 [1st Dept 1993], lv denied 82 NY2d 663 [1993]).

The NYPD did not abuse its discretion in terminating petitioner's employment. Given the severity of petitioner's assault on Annette, which caused her to lose consciousness, as well as his prior disciplinary record, the penalty of dismissal does not shock the conscience (see Matter of Astacio v Bratton, 146 AD3d 613, 614 [1st Dept 2017]; Matter of Guzman v Bratton, 161 AD3d 591, 593 [1st Dept 2018]).

M-2024-01240 — Matter of Joseph v Sewell, et al.

Motion to seal certain exhibits, granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED[*2]: May 30, 2024