Wolfe v. Kelly

79 A.D.3d 406, 911 N.Y.S.2d 362
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 2, 2010
StatusPublished
Cited by12 cases

This text of 79 A.D.3d 406 (Wolfe v. Kelly) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolfe v. Kelly, 79 A.D.3d 406, 911 N.Y.S.2d 362 (N.Y. Ct. App. 2010).

Opinion

Determination of respondent Commissioner of the New York City Police Department, dated April 1, 2007, terminating [407]*407petitioner’s employment as a detective, unanimously annulled, without costs, the petition granted to the extent of dismissing specification Nos. 1 and 2 against petitioner, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Herman Cahn, J.], entered December 21, 2007) remanded for a determination of a new penalty on specification No. 3.

In this article 78 proceeding, petitioner challenges a determination of the Commissioner of the New York City Police Department, which terminated his employment following a finding of guilt on charges of perjury and confiscation of drugs and money for personal gain. The petitioner was charged by the New York City Police Department (NYPD or the respondents) with, inter alia, stopping unidentified individuals in unspecified locations and confiscating unspecified amounts of narcotics and cash for his own personal gain on four occasions that occurred on unspecified dates at some time during a 24-month period between January 1998 and December 1999 — six to eight years prior to the petitioner’s hearing. Petitioner asserts he was denied due process of law, and that the lack of specificity in the charges prevented him from preparing any type of defense other than offering a general denial of any wrongdoing. We agree.

Petitioner is a 17-year veteran, and was employed by the NYPD in 1990, first as an officer and later as a detective specializing in narcotics enforcement. The record reflects that he investigated narcotics complaints and regularly effected arrests and seizures. At his hearing, petitioner estimated that during his career he participated in approximately 450 seizures of drugs and money totaling a value of between $10 million and $15 million.

The record further reflects that at his last annual evaluation prior to the hearing, petitioner was rated as “highly competent” and it was noted that he had been awarded 30 medals (24 for excellent police duty, five for meritorious police duty, and one commendation). He had no prior disciplinary record.

On June 29, 2006, the Police Department’s Internal Affairs Bureau (IAB) issued disciplinary charges against petitioner. Specification No. 1 alleged that “on two separate occasions between January 1998 and December 1999,” petitioner “stopped two individuals who were traveling in cabs and confiscated, without affecting [sic] an arrest and for personal monetary gain, a quantity of heroin from one, and a quantity of prescription drugs from the other.”

Specification No. 2 alleged that “on two separate occasions between January 1998 and December 1999,” petitioner “stopped [408]*408two individuals and confiscated, for personal monetary gain, a quantity of United States currency.” Specification No. 3 alleged that on or about and between April 23, 1998 and December 17, 1998, the petitioner testified falsely while under oath during an official court proceeding, in violation of Penal Law § 210.15.

Due to the lack of specificity in the charges, in particular, specification Nos. 1 and 2, petitioner’s attorney requested the equivalent of a bill of particulars. Subsequently, the bill amplified the charges only to the extent of stating that the alleged incident involving heroin occurred in the vicinity of Yankee Stadium in the Bronx. The bill also provided approximate locations in Uptown Manhattan for the alleged thefts of the prescription drugs and of the cash. The bill further stated that three of the four alleged incidents occurred with fellow detective, Julio Vasquez, present, and the incident allegedly involving heroin occurred with both Vasquez and Officer Thomas Rachko present.

At the hearing, there was testimony adduced that Vasquez was the petitioner’s patrol partner for five years from 1996 to 2000, and that Rachko worked with the petitioner in the Department’s Northern Manhattan Initiative during 1998 and 1999. Both Vasquez and Rachko admitted that during their careers with the NYPD, they were involved in serious crimes, many of which they committed together.

Vasquez admitted to stealing narcotics and cash from drug dealers, and recounted that through the thefts he had amassed approximately $800,000 between 1996 and 2001. Rachko testified to committing serious crimes from almost the day he joined the Department in the early 1980s, and stealing hundreds of thousands of dollars which he then used to satisfy his gambling addiction. His crimes included perjury based on testifying falsely before the grand jury. He acknowledged that he was not concerned by the fact that his perjury resulted in individuals being sent to jail.

In November 2003, Vasquez and Rachko were arrested for the theft of $169,000 from a narcotics merchant who was under federal surveillance. Both subsequently entered into cooperation agreements with federal authorities and pleaded guilty to grand larceny in the second degree. The terms of the agreements required Vasquez and Rachko “to testify at any proceeding in the Eastern District of New York or elsewhere as requested by the [U.S. Attorney’s] Office.” They were required to testify at petitioner’s hearing.

In exchange for their testimony, Vasquez and Rachko were given the possibility of lighter sentences, and the Manhattan [409]*409District Attorney’s office agreed not to prosecute them for any crimes they may have committed in New York County. Both former officers were facing terms of life imprisonment at the time of petitioner’s administrative hearing but had not been sentenced.

The Assistant Deputy Commissioner for Trials (ADC) conducted a hearing on the charges in September and October of 2006. Vasquez testified as to all of the charges, and Rachko testified as to one incident in specification No. 1, as well as the perjury charges alleged in specification No. 3. After Vasquez concluded his testimony, the respondents submitted 10 IAB reports concerning the Bureau’s investigation of petitioner. One of the reports stated that Vasquez had accompanied IAB officers on a canvass to find the locations and individuals alluded to in specification Nos. 1 and 2. The report, which was stipulated into evidence, showed that Vasquez had been unable to find or identify either the locations or the individuals.

Petitioner’s counsel subsequently moved to dismiss the charges, arguing that petitioner’s right to due process had been violated by the imprecise nature of the allegations and by the fact that he was unable to cross-examine Vasquez about the canvass. The ADC stated that he was “perturbed” by the failure of respondents to turn over the reports to petitioner’s counsel, and that such failure “taint[s]” the case. Nevertheless, on February 15, 2007, the ADC released his decision, finding petitioner guilty of the three specifications, and recommending dismissal from the Department. The ADC concluded that petitioner’s due process rights had not been violated given the “unique nature of the events alleged.”

By order effective April 1, 2007, the Commissioner approved the ADC’s recommendation and dismissed petitioner from his position with the NYPD. Petitioner commenced this article 78 proceeding in July 2007, contending, inter alia, that the order of dismissal was not supported by substantial evidence. He further claimed that his right to due process was violated by the imprecise allegation of time in the first two specifications.

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Cite This Page — Counsel Stack

Bluebook (online)
79 A.D.3d 406, 911 N.Y.S.2d 362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfe-v-kelly-nyappdiv-2010.