OATH Recent Decisions

To subscribe to receive the monthly BenchNOTES newsletter by email, click here.

Personnel

ALJ Michael D. Turilli recommended termination of employment for a deputy sheriff who stole contraband from an evidence storage container. On two occasions, respondent was seen on surveillance video exiting the evidence storage container with unidentified objects concealed under his clothing and taking the objects to his car. The ALJ rejected respondent’s explanation that he had been carrying a mini-tablet and a phone rather than contraband, finding this testimony inconsistent with the video evidence due to the shape of the objects and the manner in which respondent was carrying them. Further, the ALJ found that respondent had made efforts to conceal the objects from video surveillance, which would have been unnecessary if he was removing work-related equipment and not contraband. The ALJ recommended dismissal of the remaining charges against respondent for stealing or facilitating the theft of contraband on ten other occasions because the agency failed to prove those charges by a preponderance of the credible evidence. The ALJ recommended termination of employment, finding respondent’s lack of disciplinary history did not outweigh the egregiousness of the misconduct and his demonstrated lack of integrity. Dep’t of Finance v. Jimenez, OATH Index No. 3663/23 (Mar. 19, 2024).

Supervising ALJ Joan R. Salzman recommended termination of employment for a correction officer charged with undue familiarity for giving an incarcerated person gifts and with making false and/or misleading statements to investigators about this misconduct. Respondent was captured on surveillance video greeting the incarcerated person in a friendly manner (“dapping,” meaning the two men tapped their opposite shoulders together in a half-hug and shook hands, with the detainee patting the officer’s back) and giving him three packages opaquely wrapped in brown paper, including one package the officer had concealed inside his uniform shirt. During petitioner’s investigation, respondent told investigators in an MEO 16 interview that he could not recall what food he gave to this detainee, who that very day had headbutted another officer and was known to respondent as the assaultive, highest-ranking gang member in the North Infirmary Command, even though one would expect the officer to recall what he gave to this notorious detainee directly after a memorable assault by this very detainee on a colleague. Instead, respondent told investigators and testified at trial that he gave two servings of extra chicken to the detainee (even though it was “Chicken Sunday,” and chicken was already served that day), but could not recall whether the items in his uniform shirt consisted of a banana or packets of sugar or packets of mustard. He told investigators that he gave food items to this detainee in order to “keep the peace,” and that he had done so on a few occasions with this detainee previously. At trial, respondent deviated from his prior statements, and testified that he gave extra food because the incarcerated person was sick and hungry, and that he had never previously given this detainee any food. The ALJ found respondent’s testimony problematic, evasive, exceptionally vague, and incredible. The ALJ concluded that respondent’s misconduct breached the good order and discipline required in a jail facility, and after weighing the mitigating and aggravating factors, recommended termination. Dep’t of Correction v. Zapata, OATH Index No. 1234/24 (Mar. 19, 2024).

Vehicle Seizure

ALJ Kevin F. Casey determined that the Police Department may retain a vehicle seized as an alleged instrumentality of crime. The police seized the vehicle in April 2020 after the driver was arrested for criminal possession of a weapon. Respondent, the driver’s mother, was not the titled or registered owner at the time the vehicle was seized. After the vehicle was seized, respondent became a titled co-owner along with the driver. The ALJ found that respondent had standing to challenge petitioner’s retention of the vehicle because she presented evidence that she had jointly purchased the vehicle with her son, has a continuing possessory interest in the vehicle, and is a titled co-owner. However, the ALJ determined that petitioner satisfied Krimstock’s three prongs to justify retention of the vehicle and that respondent failed to demonstrate that her possessory interest outweighs petitioner’s interest in continued retention. Police Dep’t v. Walker, OATH Index No. 2079/24, mem. dec. (Mar. 5, 2024).

Health Code

ALJ Faye Lewis recommended suspending respondents’ food service establishment permit for six months based upon respondent’s Health Code violations, including selling beverages adulterated with Kava and Kratom. The ALJ found that respondent Kavasutra sold adulterated food, violated a Commissioner’s Order of Closure, and interfered with an inspection. However, the ALJ recommended a six-month suspension in lieu of petitioner’s requested penalty of revocation. Petitioner alleged and proved that Kavasutra sold adulterated food on only one date. Although Kavasutra’s owner interfered with petitioner’s inspection by demanding the inspector leave the establishment, the inspector was not prevented from conducting a visual inspection and Kavasutra’s staff had cooperated fully with the inspection. Dep’t of Health & Mental Hygiene v. Kavasutra 10th Street Inc., OATH Index No. 297/24 (Mar. 7, 2024).