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Dep’t of Transportation v. Goldstein

OATH Index No. 326/08 (Nov. 29, 2007), aff’d, NYC Civ. Serv. Comm’n Item No.CD08-36-SA (June 2, 2008)

Clerical associate charged with failing to notify employer of arrest, conviction for trespass, and failing to obey order to appear for interview. Respondent’s detention in a precinct jail cell for an hour held sufficient to establish that she was arrested, despite her receipt of a desk appearance ticket. All of the charges sustained and penalty of three days’ suspension recommended.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF TRANSPORTATION

Petitioner

- against -

REBECCA GOLDSTEIN

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This is a disciplinary proceeding referred by the petitioner, the Department of Transportation, pursuant to section 75 of the New York State Civil Service Law. Petitioner alleges that respondent Rebecca Goldstein, a clerical associate, failed to notify her employer of her arrest, was convicted for trespass, and failed to obey orders to appear for an investigative interview.

At the hearing held before me on September 24, 2007, petitioner presented court documents and the testimony of the Department disciplinary advocate.Respondent testified on her own behalf, admitting that she was convicted of a violation and that she failed to appear as ordered, but denying that she was arrested.

For the reasons provided below, I find that all of the charges should be sustainedand recommend thatrespondent be suspended for three days.

ANALYSIS

Many of the facts were undisputed. Respondent admitted that on February 9, 2007,she was taken into custody by police officers and charged with criminal trespass. Respondent contended that her receipt of a desk appearance ticket did not constitute an arrest, while petitioner contended that her being taken into police custody and detained at a precinct for an hour constituted an arrest. Respondent also admitted receiving the notice directing her to appear at the Department advocate’s office and failing to obey.

The first two charges allege that respondent was arrested on February 9, 2007, for trespass, convicted of trespass on April 30, 2007, and yet failed to notify the Department of either the arrest or the conviction. Respondent testified that, on February 9, 2007, she was present in a building when police officers appeared and began searching people for drugs. When the officers asked respondent why she was there, she said that she knew someone in the building. However, after she could provide neither an apartment number nor the name of a resident, the officers handcuffed her, placed her in a patrol car, and drove her to the precinct (Tr. 63). At the precinct, a female officer strip searched her. She was fingerprinted and held in a cell for over an hour. Then she was given a desk appearance ticket (Pet. Ex. 3) and permitted to leave (Tr. 64-65).

Respondent was subsequently charged with criminal trespass in the third and second degrees. On April 30, 2007, she plead guilty to trespass under Penal Law section 140.05, a violation, and was sentenced to a conditional discharge (Pet. Ex. 4). Respondent insisted that she should not have pled guilty, in that the building she entered had the door “wide open” and there were no posted signs advising against entering. She stated that she entered a plea because she was frustrated at having to wait in the court and did not want to have to return again. She was told that no harm would come to her as a result of the plea (Tr. 56-57).

Department Code of Conduct paragraph 10 requires that employees must notify the inspector general of an arrest within two days of being released from custody. A Department memo (Pet. Ex. 1), dated December 30, 2003, required that all Department employees also notify the Department within three days of any arrest.

Respondent “thought there was a possibility” that being held at the precinct constituted an arrest (Tr. 68). However, she contacted “someone in the legal system” who assured her that no arrest occurred because no one had read her Miranda rights or expressly told her she was under arrest (Tr. 59). She therefore did not provide any notification to the Department.

The sole defense offered by respondent to the allegation that she failed to notify the Department of the arrest was that she was not actually arrested but was instead given a desk appearance ticket, ordering her to appear at a future time to face criminal charges. Under New York law, an appearance ticket may be issued with regard to charges of minor crimes in order to provide additional time to file a charging instrument. See Crim.Proc.Law§ 150.50 (Lexis 2007).

Respondent’s admission that she was taken to the precinct by police officers, fingerprinted, and detained in a cell for an hour substantiates the allegation that she was, indeed, arrested prior to being given the desk appearance ticket. This is consistent with the procedural rules on desk appearance tickets under New York law, which provides that police officers may issue such tickets to defendants arrested for minor offenses instead of arraigning the defendants in criminal court. Crim. Proc. Law § 150.20 (2) (Lexis 2007).

Respondent’scounsel offered no legal authority for the contention that the officers’ alleged failure to recite her constitutional rights or to announce that she was “under arrest” made the detention less than a legal arrest. What authority this tribunal has been able to find runs contrary to counsel’s argument. According to New York law, an arrest “is the detaining of a person, the obtaining of the actual physical control and custody of him, and retaining it against his will and without his consent, under some real or assumed authority." Jacques v. Sears, Roebuck & Co., 30 N.Y.2d 466, 472, 344 N.Y.S.2d 632, 638 (1972). Under this definition, respondent’s detention against her will for an hour clearly constituted an arrest.

Respondent’s contention that, in not reporting her arrest, she relied upon advice from an unnamed person with an unspecified legal background was incredible. Respondent herself admitted that she knew there was at least a “possibility” that her hour-longordeal in a precinct jail cell constituted an arrest. Indeed, this admission convinced me that respondent was well aware that she had been arrested and simply hoped that her employer would not find out. In any event, assuming respondent harbored doubts as to whether the circumstances of her detention warranted a report, she was obliged to seek the guidance of her supervisors at the Department before deciding that no reporting was required. See Dep’t of Correction v. Flowers, OATH Index No. 1909/02 (Apr. 7, 2003), aff'd in part, NYC Civ. Serv. Comm'n Item No. CD04-55-M (Aug. 31, 2004).

I therefore find that respondent was arrested on February 9, 2007, and failed to notify her employer of this arrest, as required by Department rules. Charges I and II must be sustained.

Charge III alleges that respondent was issued a written notice and a verbal command to appear at the offices of the Department advocate and failed to obey. The written notice (Pet. Ex. 5) consisted of a letter from a Department investigator. According to Ms. Caraway, this notice was faxed to respondent’s supervisor, who confirmed that the letter was delivered directly to respondent (Tr. 31-32). Notably, respondent did not deny receiving the written notice.

Ms. Caraway also testified that, on May 9, after respondent failed to appear at 10:45 a.m. as directed, Ms. Caraway telephoned respondent and ordered her to appear. Respondent acknowledged receiving the written notice but stated that she did not understand why she should be required to appear. Following respondent’s failure to appear that day, Ms. Caraway drafted disciplinary charges alleging that respondent’s non-appearance was misconduct (Tr. 33-34).

Respondent testified that she was interviewed at the advocate’s office on May 3, 2007, and felt that she was “terrorized” by the hostility of the three interviewers (Tr. 59). She admitted receiving the letter from Ms. Caraway to appear again on May 9, but declined to obey for a number of reasons. She insisted that Ms. Caraway would provide no reason for her appearance, that the initial interview had been “hostile,” that it might have been raining, and that her office refused to provide her with transportation from Maspeth to Manhattan (Tr. 60).

Based upon respondent’s own admissions, I find that she received the orders from the investigator and from Ms. Caraway and failed to comply with them. Her contention that compliance with the orders might have been unpleasant or inconvenient is insufficient to excuse her disobedience. Respondent’s actions violated Department Code of Conduct paragraphs 8 and 30, which require that employees cooperate with investigations and obey all orders from superiors.

FINDINGS AND CONCLUSIONS

1.Charges I and II should be sustained in that onFebruary 9, 2007, respondent was arrested for trespass and failed to notify the Department within two days of this arrest, in violation of paragraph 10 of the Department Code of Conduct and a December 30, 2003 memo from Commissioner Weinshall.

2.Charge III should be sustained in that on or about May 3, 2007, respondent was sent a written notice to appear before an investigator on May 9, 2007, and on May 9, 2007, respondent was verbally ordered to appear before the investigator later that day, and refused both orders, in violation of Department Code of Conduct paragraphs 8 and 30.

RECOMMENDATION

Upon making the above findings, I requested and received information regarding respondent’s personnel history. She has been employed by the Department since 1984 and has no prior disciplinary record. Her unblemished work record provides considerable cause for mitigation.

Respondent’s failure to report her arrest on February 9, 2007, would appear to have had little adverse impact upon the Department. She was not convicted of a crime but rather of only a violation. Criminal court proceedings apparently came to light soon after her conviction on April 30, 2007, permitting the Department to promptly initiate misconduct proceedings. Petitioner also failed to demonstrate that respondent’s refusal to appear before an investigator on May 9, 2007, had any negative repercussions to any ongoing investigation. Hence there would appear to be no reason to consider anything but a minor penalty for the two violations which occurred here.

Although there are ample grounds for mitigation, respondent’s past conviction provides some grounds for increasing the penalty. Although respondent asserted that she was not guilty of any wrongdoing, she is barred under the doctrine of collateral estoppel from relitigating the facts underlying her conviction. Turco v. Monroe County Bar Ass’n, 554 F.2d 515, 519-21 (2d Cir.), cert denied, 434 U.S. 834, 98 S. Ct. 122 (1977); S. T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938 (1973); Dep’t of Environmental Protection v. Barnwell, OATH Index No. 177/07, at 13-14 (Sept. 18, 2006). While the conviction itself only establishes that respondent entered a building without permission, respondent’s extraordinarily terse recounting of the circumstances surrounding her arrest strongly suggests more serious wrongdoing occurred. Respondent never provided any explanation, innocent or otherwise, for visiting a building where she knew no one and which, given the police presence, was apparently known by them as a location for drug peddling. Respondent’s refusal to take any responsibility for either the actions leading up to her arrest or for her guilty plea suggests that some penalty is necessary to encourage her to examine her conduct and, if appropriate, seek out counseling or treatment to avoid more serious problems in the future.

Despite my general concerns about respondent’s lack of candor in testifying about her arrest and conviction, the fact remains that the violations which have been proven here are more technical than substantive. No doubt recognizing the largely inconsequential nature of respondent’s violations, counsel for the Department asked that respondent receive a three-day suspension for the misconduct charged here. Given the mitigating effect of respondent’s good work record and the extremely minor nature of the violations, this seems appropriate.

I therefore recommend that respondent be suspended for three days.

John B. Spooner

Administrative Law Judge

November 29, 2007

SUBMITTED TO:

JANETTE SADIK-KHAN

Commissioner

APPEARANCES:

TONYA MORGAN, ESQ.

Attorney for Petitioner

MARTIN DRUYAN, ESQ.

Attorney for Respondent