Opinion
105516/10.
Decided September 20, 2010.
Rae Downes Koshetz, Rae Downes Koshetz P.C., Counsel for Petitioner.
Daniel Gomez-Sanchez, Corporation Counsel of the City of New York, Counsel for Respondents.
Former New York City Police Department ("NYPD") Sergeant Mario Buonviaggio ("Petitioner") brings this petition under Article 78 of the CPLR seeking an order annulling the decision of Police Commissioner Raymond W. Kelly ("Police Commissioner") to terminate Petitioner on January 20, 2010.
Petitioner began his career in law enforcement in 1990 as a New York City Correction Officer. In 1993, he was appointed as a Police Officer with the New York City Housing Authority Police Department. After the merger of the NYCHA Police Department and the NYPD in 1995, Petitioner was promoted to the rank of Sergeant.
On October 3, 2005, the NYPD brought four charges against Petitioner for "conduct prejudicial to the good order, efficiency or discipline of the Department" under Case No. 81326/05. Specifically, Petitioner was alleged to have:
-pushed or shoved a female individual (NYPD Sergeant Joanne Guidice, an individual with whom Petitioner was romantically involved) and pulled her by her hair on July 22, 2005;
-spit in Guidice's face on August 8, 2005;
-wrongfully accessed Guidice's private Verizon Wireless mobile telephone account and changed said account without her permission on or around July 11, 2005, enabling Petitioner to receive and access Guidice's telephone account records; and
-wrongfully reopened Guidice's DirecTV account on or about August 25, 2005, after Guidice closed said account in response to hundreds of dollars' worth of Pay-Per-View events being charged to the account without her permission.
On October 19, 2006, the NYPD brought 14 additional charges of "conduct prejudicial to the good order, efficiency or discipline of the Department" under Case No. 82326/06. These charges involved Petitioner's alleged theft of blank courtesy checks from two of Guidice's bank accounts and forgery of Guidice's signature in order to pay for $400 worth of Pay-Per-View events, and to purchase merchandise (which included "breast enlargement devices" and a "blow up doll") and sexually explicit magazines to be delivered to Guidice's home. These events also allegedly took place in August of 2005.
On January 29, 2009, Petitioner and the NYPD entered into a Negotiated Plea Agreement ("Plea Agreement") with respect to both series of charges. The Plea Agreement provided that
In the event that plea negotiations do not result in an agreement, or any agreement concerning a proposed penalty is rejected by the First Deputy Commissioner or Police Commissioner, no statements by the Respondent or his/her Attorney made in connection with the agreement, will be admissible against the Respondent. The Respondent's rights and privileges will remain unaffected, and the Department's disciplinary process will proceed as if plea negotiations had never taken place.
On June 8, 2009, the Police Commissioner disapproved the Plea Agreement and directed that Petitioner's cases proceed to trial.
On July 22, 2009, an Administrative Trial was held before Assistant Deputy Commissioner Robert W. Vinal. Petitioner, with the assistance of counsel, entered a plea of "guilty" to all 18 charges brought against him, and sought a "mitigation proceeding" in order to explain the circumstances surrounding the charges, and to offer any other evidence which might warrant a lesser sanction than would otherwise be imposed.
At his trial, Petitioner highlighted good works that Petitioner performed both as an NYPD Officer, and as a private citizen. With respect to the charges, Petitioner attributed his behavior to "clouded judgment," which Petitioner claimed emanated from the pain he endured from line of duty injuries, as well as the medication he was taking in treatment thereof.
On November 27, 2009, Assistant Deputy Commissioner Vinal issued his Report and Recommendation. Based upon the gravity of the offenses which Petitioner admitted to committing, Vinal recommended that Petitioner be dismissed from the NYPD. With respect to Petitioner's claim that the pain that he suffered from and his medication clouded his judgment, Vinal noted that Petitioner "offered no medical testimony that the specific medications he was prescribed could cause him to engage in the outrageous actions he took against Guidice." Vinal's Report and Recommendation was approved by the Police Commissioner on January 20, 2010.
This petition ensued.
Petitioner's sole basis for relief in his verified petition is the claim that the Police Commissioner abused his discretion as to the penalty imposed, pursuant to CPLR § 7803(3).
In reply to Respondents' verified answer and memorandum of law in support thereof, Petitioner further argues that he was denied a fair hearing because (1) Petitioner's prior (rejected) plea of guilty tainted the subsequent proceedings; and (2) that ADC Vinal refused to consider Petitioner's mitigating evidence.
Respondents have submitted a sur-reply affirmation requesting that Petitioner's reply be stricken, or alternatively, that the court consider Respondents' response to Petitioner's reply papers, set forth therein. Petitioner has submitted an affirmation in opposition to the sur-reply.
Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law.
In matters concerning police discipline, great leeway must be accorded to the Commissioner's determinations concerning the appropriate punishment, for it is the Commissioner, not the courts, who is accountable to the public for the integrity of the Department.
( Cassino v. Kerik, 301 AD2d 403 [1st Dept. 2003]) (citations and internal quotations omitted).
Here, given the seriousness of the conduct alleged and admitted to by Petitioner, the court does not find the penalty of dismissal to be shocking to one's sense of fairness, and thus the Police Commissioner's determination must stand ( see id.).
Even if the court were to consider the arguments advanced by Petitioner on reply, it would find them to be without merit. There is no evidence to support Petitioner's allegation that any subsequent hearing after rejection of the Plea Agreement was tainted by the prior guilty plea. ADC Vinal stated on the record at the start of Petitioner's trial that "As the parties are aware, I have not had any previous dealings with these cases on the conference calendar or otherwise. . . ."
Indeed, if Petitioner had any objection to ADC Vinal presiding over his trial for an alleged lack of impartiality, it was incumbent upon Petitioner to raise this objection at the hearing; accordingly, even if Petitioner raised this argument in his initial petition rather than in reply, the argument would nevertheless be waived ( see Smythe v. Goord, 2007 NY Slip Op 5285, *1 [2nd Dept. 2007] (petitioner waived claim of hearing officer's bias by failing to raise the issue at his administrative hearing); see also Rauer v. State Univ. of New York, 159 AD2d 835, 836 [3rd Dept. 1990] (student waived procedural due process challenge where, on administrative appeal, he sought only a mitigation of his punishment).
Similarly, Petitioner's claim that ADC Vinal refused to consider Petitioner's arguments is belied by the record.
Wherefore, it is hereby
ADJUDGED that the petition is denied and the proceeding is dismissed.
This constitutes the decision and order of the court. All other relief requested is denied.