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Matter of Joseph v Sewell |
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2024 NY Slip Op 02985 |
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Decided on |
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Appellate Division, First Department |
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Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
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This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered:
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.,
Sylvia O. Hinds-Radix, Corporation Counsel,
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
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
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]: