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OATH Judge Dismisses Multiple Charges Against Two NYC Correction Officers
ALJ Says “No Credible Evidence to Sustain Allegations of Impermissible Use of Force and Making False and Misleading Statements in a Use of Force Report”
New York, New York July 22, 2004 - Two New York City Correction Officers were completely exonerated of multiple charges of misconduct brought by The Department of Correction (DOC), according to the decision and recommendation of Administrative Law Judge Donna R. Merris. According to the details of the March 9, 2004 disciplinary proceeding at the Office of Administrative Trials and Hearings (OATH), Correction Officer Michelle Almodovar was charged with impermissible use of force against an inmate at the Anna M. Cross Center (AMKC) at Rikers Island during an incident that occurred on October 21, 2001, and both Officer Almodovar and Correction Officer Rolando Carrero were charged with making false and misleading statements regarding the alleged use of force incident during a subsequent Mayor’s Executive Order No. 16 (MEO 16) interview on January 30, 2002.
Commenting on this legal victory, Norman Seabrook, president of the Correction Officers’ Benevolent Association said, “Clearly, this case was without merit from the beginning.” Mr. Seabrook continued, “Rather than falsely accusing these two officers of misconduct, the DOC should commend them for their continued dedication to guarding the city’s most dangerous precincts.”
At the disciplinary hearing, the DOC contended that Correction Officer Almodovar badly beat an intransigent inmate who refused to provide the correction officer with identification while he attempted to enter an area in which he was not housed, while Officer Carrero simply stood by. The DOC’s primary basis for their charges rested solely with the testimony of the inmate who reported the allegations of misconduct to a captain later that evening. Following the incident, a Department Investigator who was assigned to investigate the incident and who canvassed the housing area for additional witnesses, concluded that based upon the information obtained from medical releases from the inmate, as well as a review of the reports from the officers assigned to the area, the use of force allegation could not be substantiated. Despite these findings presented by their own witness, the DOC continued to charge Officers Almodovar and Carrero with misconduct.
The attorney representing the Correction Officers’ union, David McGruder, of Koehler & Isaacs LLP, argued that “The testimony provided by the inmate and the facts gathered by the independent investigator, showed a clear inconsistency and a failure by the DOC to present the inmate as a credible witness.”
In her decision, Judge Merris concurred with Mr. McGruder’s argument, saying, “Here the testimony of the complainant, (the inmate), was so patently incredible and uncorroborated that the charges of the impermissible use of force could not be sustained.” Furthermore, Judge Merris asserted that since “neither Officer Almodovar nor Officer Carrero used any force against the inmate, neither officer failed to report that they used force against the inmate.”
The judge’s recommendation was submitted to Department of Correction Commissioner Martin Horn for a final ruling.
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