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Dep’t of Correction v. Archibald

OATH Index Nos. 2214/08, 2215/08, 2216/08, mem. dec. (Aug. 15, 2008)

Correction officer’s motion to dismiss disciplinary charges based upon spoliation of evidence denied where there is no evidence that the missing log books were deliberately destroyed and there is other evidence available which might assist employee in defendinghimself against the charges.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

-against-

EMANUEL ARCHIBALD, RODNEY WILLIAMS,

AND ALEXANDER WILLIAMS

Respondents

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MEMORANDUM DECISION

JOHN B. SPOONER, Administrative Law Judge

This case involves disciplinary charges served by petitioner, the Department of Correction, against three respondents, Correction Officers Emanuel Archibald, Rodney Williams, and Alexander Williams. The charges allege that the officers committed various violations during an encounter with an inmate in April 2007. On July 7, 2008, Harvey Levine, attorney for respondent Rodney Williams, submitted a letter alleging that log books relevant to the incident have been lost and seeking dismissal of all of the charges against his client. Petitioner’s attorney submitted a memo of law contending, because there was no indication that the logs had been intentionally destroyed, dismissal of the charges would be inappropriate. Officer Rodney Williams’s attorney replied with another letter, again arguing for dismissal and citing case law. The case is currently scheduled for a hearing before me on September 8 and 9, 2008.

For the reasons given below, respondent Rodney Williams’s motion to dismiss must be denied.

ANALYSIS

In his papers, Mr. Levine asserts that, during the midnight tour on April 26, 2007, Officer Rodney Williams was the meal relief officer. He further contends that, after 2:00 a.m., Officer Williams relieved an officer “at a different post in a totally different area,” and therefore could not have been present during the charged incident. It is apparently undisputed that the A, B, and C post log books for the midnight tour were sought by a Department investigator soon after the incident but found to be missing. Mr. Levine argues that the absence of these log books places his client at an “unfair disadvantage” and permits petitioner to “play loose and fast” with its version of the facts. He therefore concludes that the only appropriate sanction would be dismissal of all charges against his client.

Under New York law, sanctions for spoliation, or the destruction of evidence, are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence before the adversary has an opportunity to inspect them. Kirkland v. New York City Housing Auth., 236 A.D.2d 170, 173, 666 N.Y.S.2d 609, 611 (1st Dep’t 1997). This tribunal has declined to sanction parties for loss of evidence in the absence of a showing of bad faith or deliberate destruction. Dep’t of Correction v. Strother, OATH Index No. 2160/00 at 19 (July 27, 2001); Dep’t of Correction v. Finch, OATH Index No. 652/07 at 12 (Nov. 28, 2006), modified on penalty, Comm’r Dec. (May 24, 2007), modified on appeal, NYC Civ. Serv. Comm’n Item No. CD08-19-M (Mar. 19, 2008) (“the taking of an adverse inference for one party’s failure to provide evidence is an extreme remedy which requires a showing of bad faith, intentional destruction of the evidence, or its willful non-production.”).

Notably, respondent submits little support for his argument that the appropriate sanction here would be dismissal of all of the disciplinary charges, particularly where there is no factual record. In one of the cases cited by Mr. Levine, Barnes v. Paulin, 860 N.Y.S.2d 221 (2d Dep’t 2008), the court upheld the lower court’s ruling imposing sanctions for the spoliation of evidence only to the extent of allowing an adverse inference to be drawn against the defendants at the trial. It is true that, in the other case, Kirkland, the Housing Authority’s negligent disposal of a stove, which was the critical piece of evidence, was found to warrant pretrial dismissal. However, this was because the destruction of the evidence by the Authority effectively prevented the third-party defendant from investigating the facts or presenting a defense. Kirkland, 236 A.D.2d at 173, 666 N.Y.S.2d at 611. In the instant case, while the log books would apparently have been highly relevant and useful to both parties, there would nonetheless appear to be other evidence available, including witness testimony and statements, which could corroborate the officer’s contention that he was not on the post at the time of the incident. Furthermore, there is an incomplete factual record here on which to base any sanction since petitioner has been given no opportunity to establish how the log books disappeared and respondent has failed to demonstrate how this disappearance has prejudiced his defense. Should the evidence at the hearing suggest that the log books were deliberately destroyed or demonstrate severe prejudiceto respondent, the request for sanctions could be reconsidered.

ORDER

For the foregoing reasons, the motion to dismiss the charges against respondent Rodney Williams is herebydenied. Should the evidence at the trial warrant it, respondent may renew his motion for sanctions at that time.

John B. Spooner

Administrative Law Judge

August15, 2008

APPEARANCES:

DAVID KLOPMAN, ESQ.

Attorney for Petitioner

HARVEY LEVINE, ESQ.

Attorney for Respondent Rodney Williams