Borrelli v. Kelly

Determination of respondent Police Commissioner, dated April 17, 2007, finding petitioner guilty upon his plea to specification No. 2 and, insofar as challenged, guilty of specification No. 1, and imposing a penalty of forfeiture of 15 vacation days, unanimously annulled, without costs, and the petition (transferred to this Court by order of the Supreme Court, New York County [Walter B. Tolub, J.], entered December 19, 2007)> granted to the extent of vacating the finding of guilt of specification No. 1 and the penalty imposed, and the matter remanded for a determination of a new penalty on specification No. 2.

*165The evidence at the departmental trial was inadequate to support the finding of guilt on specification No. 1, knowing association with a person or organization reasonably believed to be engaged in, likely to engage in or to have engaged in criminal activities. The evidence established only that petitioner had infrequent contact with a lifelong friend after the friend was arrested in January 2003 on charges of driving while intoxicated and assault in the third degree, which charges were disposed of by the friend’s plea to driving while ability impaired, a traffic infraction. Neither that contact, nor petitioner’s appearance at the scene of the friend’s subsequent arrest as well as at the precinct at which the friend was being held, in the presence of appropriate police personnel, constituted substantial evidence of petitioner’s guilt of specification No. 1 (see e.g. 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 [1978]; Matter of Scully v Safir, 282 AD2d 305, 308 [2001]).

Because one penalty was imposed to cover both specifications, we remand the matter for a determination of a new penalty for specification No. 2 (failure to properly safeguard his off-duty firearm), to which petitioner pleaded guilty during the departmental trial. Concur—Gonzalez, J.E, Buckley, Catterson, McGuire and Acosta, JJ.