Rothstein v. Brezenoff

92 A.D.2d 808, 460 N.Y.S.2d 542, 1983 N.Y. App. Div. LEXIS 17190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1983
• Status: Published

Opinions

— Determination of respondents, dated July 6, 1981, finding petitioner guilty of misconduct and dismissing him as a senior special officer of the Human Resources Administration, confirmed, and the petition dismissed, without costs and without disbursements. This CPLR article 78 proceeding was transferred to this court by order of the Supreme Court, New York County (Blyn, J.), entered on February 22, 1982. The petitioner was appointed a special officer of the Human Resources Administration (HRA) in 1972 and he was promoted to the position of senior special officer or sergeant in 1974. The incident that gave rise to the instant proceeding occurred in the late morning of December 6,1978 in the Waverly Income Maintenance Center located at 12 West 14th Street, Manhattan. A client of the center, named Floyd Hendricks (Hendricks), became so disruptive that the civilian personnel at the center summoned special officers of the HRA. Responding were Special Officers Morey Cohen (Cohen), Bobbie Levy (Levy) and Clarence A. Scott (Scott). These officers were unsuccessful in calming Hendricks since Hendricks grabbed Levy in a kind of bear hug. This action by Hendricks resulted in his being quickly subdued by these three officers. As they were handcuffing Hendricks, Special Officer Ether Ramseur (Ramseur) and the petitioner came over to assist. The petitioner was in charge since he was a sergeant, and the senior officer present. As petitioner was assisting his subordinates, he suddenly yelled out: “ ‘this motherfucker bit me.’ ” Petitioner then jabbed his nightstick in Hendricks mouth, while Hendricks was being held by the four other officers. This blow caused Hendricks to bleed from the mouth and spit blood. Also, petitioner hit Hendricks across the chest with the nightstick. At the time that the officers were struggling with Hendricks there were between 100 and 200 clients in the. center. During the struggle this crowd closed in around the officers. When petitioner struck Hendricks it almost triggered a riot. The crowd became so enraged that more officers had to be called so that order could be restored. In June, 1979 petitioner was served with disciplinary charges and specifications. In essence, the first specification charged him as a sergeant with using excessive physical force on Hendricks, which resulted in inciting the other clients to commit violence against officers; and, the second specification charged that his “actions endangered persons at the Center and interfered with the maintenance of the public peace” and that, as a sergeant, his “actions and use of unnecessary force against Mr. Hendricks set a bad example for [his] subordinates”. A three-day disciplinary trial was held concerning the charges. At this trial three key witnesses against petitioner were his subordinate officers: Levy, Ramseur and Scott. Levy and Scott both testified that Hendricks had been subdued before petitioner hit Hendricks with the nightstick; and, that after petitioner hit Hendricks with the nightstick the clients rioted by calling the officers obscene names and throwing a chair at the officers. Levy testified: “he [petitioner] then took his nightstick and hit Hendricks in the face twice”; and, Ramseur testified that petitioner hit Hendricks “[o]nce maybe twice. I couldn’t swear to how many”. In addition, Steven W. Doughtry (Doughtry), an income maintenance specialist at the center, testified “the next thing you see Sergeant Rothstein * * * take out his nightstick and hit the guy twice, once across the face and another time across his chest.” Examination of the arrest report reveals that Hendricks was of slight build in that he was five feet, eight inches, tall and weighed 135 pounds. Petitioner testified in his own behalf. In the course of his testimony, petitioner admitted that the alleged bite wound was minor since “[t]o my knowledge, just his teeth marks were on my thumb”, and, that, just before he used his nightstick, the crowd was large and hostile. Our examination of the record leads us to the conclusion that respondent administrator/commissioner’s finding that the sergeant petitioner was guilty of the charges is supported by substantial evidence (Matter of Pell v Board ofEduc., 34 NY2d 222, 230). Therefore, the administrator/commissioner’s action was neither arbitrary nor capricious. In pertinent part the administrator/commissioner wrote: “I further find, as several officers and Mr. Doughtry testified, Sergeant Rothstein’s actions which were taken in front of approximately two hundred clients, provoked anger among the crowd of clients and caused clients to shout angry remarks such as ‘there’s no need for the stick’. Following Sergeant Rothstein’s actions, the clients surged forward, a chair was thrown which struck Sergeant Rothstein and other officers, and the crowd became so unruly that other officers had to be called for assistance. I find that Sergeant Rothstein’s use of excessive force thus increased the dangerousness of an already difficult situation. I further find that Sergeant Rothstein’s use of excessive force, which was done in the presence of at least four subordinate officers, violated his duty as a superior officer to set an example of proper conduct for his subordinate officers. Accordingly, I find Sergeant Jeffrey Rothstein guilty of Specification I, A and B 1 and Specification II, A and B.” Unlike our dissenting brothers, we find that the penalty of dismissal imposed by the administrator/commissioner was not excessive. At page 240 of Matter of Pell v Board of Educ. (supra), the test to measure whether a penalty is excessive is set forth in these words: “[ujnless an irrationality appears or the punishment shocks one’s conscience, sanctions imposed by an administrative agency should be upheld.” Our dissenting brothers are in error when they write that there is no indication that anyone actually observed petitioner use his nightstick on Hendricks more than once. Levy and Doughtry, quoted supra, both testified that they observed petitioner strike Hendricks twice. Mistakenly, the dissent treats petitioner as just another special officer, when they attempt to justify his use of the nightstick by stating “petitioner struck out instinctively.” Petitioner is a sergeant and is not expected to act “instinctively”. As a superior officer, more is expected of him than from an untrained civilian. In the instant case, the penalty of dismissal was not an abuse of discretion. Petitioner’s record was not unblemished as the dissenters contend. In pertinent part the administrator/commissioner wrote: “A finding of excessive use of force against a client is among the most serious offenses that can be committed by a special officer, whose job is to protect clients. Furthermore, the seriousness of the finding is herein magnified by the fact that Jeffrey Roth-stein was a sergeant and as a superior officer had the additional responsibility of setting an example for his subordinate officers. In addition, an examination of Sergeant Rothstein’s record during his career as special officer shows repeated instances in which he demonstrated extremely poor judgment and self-control. He interacted with fellow officers, superiors and coworkers in a manner that was neither temperate, nor professional. For instance, on more than one occasion, he made disparaging ethnic and racial remarks.” Considering the seriousness of the offense committed by petitioner in the instant case, the penalty imposed upon him by the administrator/commissioner is neither irrational nor shocking to the conscience of this court. Concur — Ross, Bloom and Alexander, JJ.