Rodriguez-Rivera v. Kelly

Determination of the respondent Police Commissioner, dated January 26, 2002, finding petitioner police officer guilty of certain specifications charging him with failing to render all necessary police services and imposing a penalty of forfeiture of 15 vacation days, annulled, without costs, and the petition (transferred to this Court by order of the Supreme Court, New York County [Robert Lippmann, J.], entered August 15, 2002) granted.

It is well settled that judicial review of a determination made by an administrative agency is limited to a consideration of whether such determination was supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181 [1978]; Matter of Wagner v Kerik, 298 AD2d 322 [2002]). Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987] [internal quotation marks and citations omitted]). Our review of the record in the instant matter, however, reveals no such substantial evidence to support the Commissioner’s determination that petitioner: (1) failed to render all necessary police service to the complainant Anne B. (Ms. B.) in response to her allegations that she had been sexually assaulted at the 2000 Puerto Rican Day parade; and (2) failed to report this complaint to his patrol supervisor in violation of departmental rules and procedures. Our examination of the relevant testimony elicited at trial fails to meet the requisite minimal evidentiary requirement necessary to uphold the Commissioner’s determination and the penalty imposed (see Matter of Scully v Safir, 282 AD2d 305, 308 [1st Dept 2001]).

At the administrative hearing, petitioner, a male Hispanic, testified that he is a six-year veteran of the New York Police Department assigned to the Manhattan Traffic Task Force. He further testified that on the date in question he was assigned to a three-wheeled scooter and aided a woman sexually assaulted by the unruly parade crowd, but denies being approached by Ms. B. or her former boyfriend Patrick Orlando (Orlando) at 59th Street and Sixth Avenue.

Ms. B. testified that on June 11, 2000, she and Orlando were at Central Park as the Puerto Rican Day parade was winding down. As they proceeded to the park entrance at Sixth Avenue and Central Park South, Ms. B. became separated from Orlando by the disorderly parade crowd. She then found herself surrounded by a large group of Hispanic men and women, who doused her with beer and water, threw her to the ground, pulled her pants down and groped her. Ms. B. further testified that, upon being reunited with Orlando, she approached a uniformed police officer, who was sitting in an enclosed police scooter at 59th Street and Sixth Avenue, and she recounted the details of her attack. Ms. B. testified that the police officer was unresponsive, failed to take a report and drove off. The next day, Ms. B. stated that she filed a report at a midtown precinct. Although Ms. B. identified petitioner at trial as the officer on the scooter, Ms. B. conceded to a police investigator two days after the incident that she was unable to identify the officer on the scooter, stating that all police officers look alike. Subsequently, Ms. B. was shown six photo arrays of the possible scooter officer, but again she was unable to identify petitioner, whose photograph was included in each array, as the scooter officer. Moreover, she expressly excluded petitioner as a possibility. Although Ms. B. eventually described the officer in the scooter as a male wearing a blue uniform who had “skin color representing somewhere between white and Hispanic, possibly Italian,” she admitted in the course of the investigation that she has “a hard time describing accurately between white and Hispanic” and that she could no more describe the officer in question “than fly to the moon.” No other definitive physical description of the officer on the scooter was offered by Ms. B. It is noteworthy that petitioner has a distinctive handlebar moustache, which he had at the time of the incident.

Despite petitioner’s unique physical appearance, Orlando was unable to identify petitioner both in court and when he was shown a series of photo arrays. He testified that the scooter officer was a male Caucasian in his late thirties to early forties with graying hair. As with Ms. B.’s description, Orlando did not definitively indicate that the scooter officer in question had a mustache. Orlando also testified that the scooter in question may have had three wheels, but he was uncertain. We find that the Assistant Deputy Commissioner (ADC) improperly credited Orlando’s testimony in determining the identity of the scooter officer, particularly in light of the fact that Orlando initially told investigators that the scooter officer listened to Ms. B.’s complaint, spoke on his radio, directed Ms. B. and Orlando to a nearby police van and then took off in the general direction of the scene where Ms. B. was assaulted. We also find irrational the determination of the ADC that Orlando’s testimony was devoid of any motive to fabricate given the close nature of his relationship with Ms. B. and the conflicts in his testimony.

Upon viewing a series of photo arrays, Johnnyray Gasea, an eyewitness to the assaults taking place in the vicinity of Ms. B.’s attack, expressly eliminated petitioner as the scooter officer and affirmatively selected a photograph of another individual as the scooter officer in question. Although Gasea is a convicted felon with questionable veracity, we find that his failure to select petitioner’s photograph from an array is significant inasmuch as it serves to exonerate petitioner, especially since Ms. B. and Orlando both failed to identify petitioner from the photo arrays.

Police Officer Ernest Enea (Enea) testified that the area of 59th Street and Sixth Avenue was so heavily congested with traffic and pedestrians that the street was “lost.” Enea stated that he encountered petitioner and his scooter near 59th Street and Sixth Avenue where he saw petitioner take prompt action coming to the aid of a naked female tourist, later identified as Sophie T. (Ms. T.), who was sexually assaulted by the parade crowd. Enea testified that petitioner covered Ms. T., escorted her and her husband into a nearby police scooter, pushed away the riotous crowd and radioed for police assistance and an ambulance. Although Enea’s testimony places petitioner in the vicinity of the alleged assault, Enea stated that, in the midst of all the chaos, he did not see Ms. B. or Orlando approach petitioner’s scooter. We find it incomprehensible that the ADC failed to accept the overriding exculpatory nature of Enea’s testimony and failed to credit Ms. B.’s identification of Enea as a possible suspect from the photo arrays. We also find it improbable that after placing himself in jeopardy by heroically protecting Mr. and Mrs. T. from the rioting mob, that petitioner would fail to offer police protection to another victim of the crowd’s sexual assaults.

Internal Affairs Bureau investigator Christopher Biddle testified that he reviewed the roster of scooters assigned to petitioner’s precinct on the day of the parade. Biddle testified that four male non-African-American officers were assigned three-wheeled scooters from the Manhattan Traffic Task Force: petitioner, Officer Cruz, Officer Pacheco and Officer McKenna. He also stated that it was possible that another officer, Officer Fiorelli, may have been assigned to a three-wheeled scooter on the day of the parade, but Biddle admitted that some of the reports from the officers’ departmental interviews failed to indicate whether they were assigned to a two-wheeled or three-wheeled scooter. In reviewing these flawed reports from each of these aforesaid officers’ departmental interviews, Biddle stated that although Officers Cruz," Pacheco and McKenna were in the approximate vicinity, each denied being the scooter officer who encountered Ms. B. and Orlando at the parade. Biddle further stated that both petitioner and Officer Pacheco, who are both physically similar, were each responding to traffic conditions at 59th Street and Sixth Avenue. Although Biddle conceded that, even with the aid of these deficient departmental reports, there was no precise way of knowing where every police officer assigned to a scooter was at any one particular time in the course of the escalating pandemonium, he ultimately identified petitioner as the scooter officer solely in light of Officer Pacheco’s statement in his own departmental interview that he was approaching the scene by a different route than the one used by Ms. B. and Orlando. We find that reliance upon this type of testimony does not establish petitioner’s identity as the scooter officer by the requisite substantial evidence standard.

While we agree with the dissent’s contention that, in the context of a CPLR article 78 proceeding, our review powers are severely limited when dealing with the issue of a witness’s credibility, “we are nevertheless charged with insuring that an agency meet the very minimal evidentiary requirement necessary to uphold its determination” (Matter of Scully v Safir, supra at 308 [Commissioner’s credibility determinations were unsupported by substantial evidence]). The evidence in the instant matter falls far short of reaching this standard. Concur— Nardelli, J.P., Ellerin and Lerner, JJ.