Archive.citylaw.org



Dep’t of Correction v. Lewis

OATH Index No. 761/05 (Mar. 21, 2005)

Correction captain charged with failing to find immigration warrant in inmate paperwork, resulting in inmate's erroneous release. ALJ finds charge was not proven.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

SARDIA LEWIS

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. Petitioner, the Department of Correction, charged respondent Sardia Lewis, a correction captain, with failing to notice an immigration warrant in an inmate's file, resulting in the inmate's erroneous release.

A hearing on the charges was conducted before me on February 3 and March 3, 2005. Petitioner called two officers who observed the warrant in the inmate's paperwork prior to his being admitted into respondent's facility. Respondent and four other officers denied that the warrant was with the inmate's papers when they reviewed the documents.

For the reasons provided below, I find that the charge has not been proven and should be dismissed.

ANALYSIS

This disciplinary case concerns the processing of an inmate on April 26 and 27, 2004, at the Bernard B. Kerik Center ("BBKC"), located in Manhattan. Respondent was the intake captain for the midnight to 7:30 a.m. tour at BBKC on April 27, 2004, when an inmate named Rudolfo Gonzalez was admitted. Later that day the inmate was produced in court and was

released. Several hours afterward, it was discovered that, at the time of his release, the inmate had an outstanding immigration warrant which should have precluded his release. As a result of this error, a number of officers, including respondent, who reviewed the inmate’s paperwork upon his admission and departure from BBKC, were charged with misconduct.

The charges against respondent allege that she "failed to ensure that the information listed in the Inmate Information System ("IIS") regarding said inmate was properly referenced on the Risk Screening Form ("Form 239") to ensure the proper completion of Form 239 by all staff members under her supervision." The form referred to in the charge was also known as the classification risk screening form (Pet. Ex. 1). This form, which was prepared around 3:30 p.m. on April 26 by an officer in the court part where the inmate was taken into custody, did not accurately record the existence of an outstanding warrant on Mr. Gonzalez. In fact, at trial petitioner broadened its theory to suggest that respondent (as well as a number of other officers) should have caught and presumably corrected the error on this form due to the presence of a copy of the immigration warrant in the inmate's paperwork, which they were responsible for examining. Thus, petitioner's contention as to respondent's role in the improvident release of the inmate depended upon a finding that she was in part responsible for the failure to correctly record the warrant in section H of the risk screening form based either upon (1) the presence of the immigration warrant with the inmate's paperwork when she reviewed it or (2) a duty to check the accuracy of the warrant information against the IIS database.

The primary proof offered at trial as to respondent's duty to correct the risk screening form was the post order (Pet. Ex. 24), listing the intake captain's job responsibilities. The relevant language of the order states that the intake captain "must review the records of all inmates scheduled for release from this facility, transfer to another jurisdiction, departmental facility or court." Respondent herself admitted that she was aware Mr. Gonzalez was scheduled to go to court later that day (Tr. 193), although she also made it clear that her primary duty was to clear the inmate for assignment to an appropriate housing location and not to process the

inmate for his court appearance the next morning. Nonetheless, assuming the warrant was present with Mr. Gonzalez's papers, petitioner contends, with some logic, the error on the form indicating no outstanding warrants was so glaring that it should have been caught by respondent.

Most of petitioner's case at trial thus rested upon proving the presence of the warrant at the time respondent saw Mr. Gonzalez's papers. The testimony of the staff members who reviewed the paperwork of inmate Gonzalez on April 26 and April 27 was to the effect that the warrant was present in court on the afternoon of April 26, was not with the inmate's papers later that night when he was admitted to BBKC, but was also found in a file at BBKC after the inmate had been released. Mr. Gonzalez was apparently arrested when he appeared in court on April 26 and processed as a new admission, with a court date the following day. After Mr. Gonzalez's arrest in the court part, Officer Jeffrey Long, assigned as the court part officer at the pens, prepared a classification risk screening form (Pet. Ex. 1), noting the inmate's pedigree information. Officer Long conceded that, at the time he saw the inmate's paperwork, it included a securing order (Pet. Ex. 4) and also an immigration warrant (Pet. Ex. 2) indicating the aliases of William Freza and John Rudolfo. On the reverse side of the screening form, in section H, Officer Long left the space for warrants blank. Officer Long admitted that the failure to complete this section was an error, due to his being distracted as he was completing the form (Tr. 13-14).

Upon completing the screening form and also a psychological assessment form (Pet. Ex. 3), Officer Long stapled the four documents together and delivered them to Officer Deborah Sanders (Tr. 17), who also worked in the court part. Officer Sanders testified that, upon receiving the Gonzalez paperwork from Officer Long, she entered the information into the IIS computer database at approximately 4:46 p.m. (Tr. 41-43). Officer Sanders stated that she did not notice that the screening form had been incompletely filled out by Officer Long (Tr. 52). Officer Sanders stated that, after completing her data entry, she folded the four documents, stapled them, and placed them in a new admissions slot (Tr. 46).

From the courts, the inmate was taken to the intake area at BBKC. There, three officers, Officer Ronnie Gary (the A post officer), Officer Raphael Santiago (the B post officer), and Officer Arnulfo Grossett (the D post officer) all reviewed Mr. Gonzalez's paperwork. Officer Santiago testified that he placed the inmate in a cell and looked through the inmate's documents. He stated "with the utmost certainty" that, when he saw the paperwork, there was no immigration warrant (Tr. 138). Officer Santiago passed the papers to Officer Arnulfo Grossett, who filled out a detention record (Pet. Ex. 22) indicating that Mr. Gonzalez was scheduled to appear in court the next day. Officer Grossett too, insisted that there was no warrant with Mr. Gonzalez's papers when he saw them (Tr. 129-31).

Respondent reviewed Mr. Gonzalez's documents and then signed the screening form (Pet. Ex. 1) to confirm that the inmate was cleared to be housed (Tr. 184-85). She was also certain that, when she saw the papers, there was no warrant (Tr. 185). She returned the papers to Officer Gary, the A officer, who later delivered them downstairs to the general office. Officer Harrington Frazier, the steady classification officer, reviewed Mr. Gonzalez's paperwork, which included three pieces of paper, the risk screening form, the securing order, and the mental health sheet. He did not see a warrant. Officer Frazier assigned the inmate to housing, sent the inmate's accompanying card with the securing order with the inmate, and then returned the inmate's folder to the general office. According to Officer Frazier, if a warrant had been present, it should have been stapled with the accompanying card and sent with the inmate (Tr. 182).

Officer Albert Buttacavoli, the A post officer at the custody desk in the general office for the midnight to 7:30 a.m. tour, was responsible for processing Mr. Gonzalez for his court appearance the next morning. He was also certain that, when he reviewed Mr. Gonzalez's papers, there was no warrant (Tr. 153). Relying upon the absence of any warrant and the notation on the screening form showing no outstanding warrants, Officer Buttacavoli generated a hand-written surrender form 44A (Pet. Ex. 8) indicating that Mr. Gonzalez should be released to the Department if the court released him.

On April 27, when Mr. Gonzalez appeared in court, he was released. When Officer Sanders was given Mr. Gonzalez's paperwork for processing in the database, the record was flagged as having a warrant. Officer Sanders immediately called the office at BBKC to check the inmate's folder for a warrant. An officer there confirmed that there was a warrant in the file. Officer Sanders then notified her supervisor, Captain Hendricks (Tr. 48-49).

Several of the officers who reviewed the Gonzalez file were disciplined. Officer Long entered into a plea agreement for an undisclosed penalty (Tr. 36). Officer Buttacavoli accepted a penalty of four days based upon his failure to utilize the computer database to generate a surrender form 44A (Tr. 153). Officer Frazier accepted a reprimand for unspecified negligence with regard to the processing of the inmate, although he insisted he did nothing wrong and now regretted accepting even a minor penalty because he believed he did nothing wrong (Tr. 170). Although in his report (Pet. Ex. 10) Captain Rodriguez recommended charges against Officers Gary, Santiago, and Grossett, there was no evidence that they had been charged as of the date of the hearing.

Although it is a close question, I have concluded that petitioner has failed to meet its burden of proving that the immigration warrant was with Mr. Gonzalez's papers when he was processed in and out of BBKC. Analysis of this question requires a review of the testimony of the various witnesses who detailed how Mr. Gonzalez and his accompanying papers were processed by Department staff.

In support of its contention that the warrant was with Mr. Gonzalez's papers when they were reviewed by respondent, petitioner sought an inference that the warrant was there based upon the evidence that the warrant was there when the inmate left the court for BBKC on April 26 and was later found in the inmate's file after his release on April 27. In contesting this factual issue, respondent presented the testimony and statements of eight staff members who reviewed the Gonzalez documents after 5:00 p.m. on April 26 and adamantly insisted that the warrant was not present.

Generally, I found no striking credibility problems with any of the witnesses who testified. It is true that respondent and the other officers who were charged with misconduct had a compelling interest in denying any negligence due to a failure to see the warrant. On the other hand, I was struck by the conviction with which these witnesses framed their denials. Virtually all of them expressed absolute certainty that the warrant was not present when they reviewed the papers and this certainty seemed to be entirely sincere. They were also adamant that immigration warrants were common enough so as to be easily recognizable. In assessing their testimony, it seemed unlikely that so many seasoned staff members, accustomed to scanning and locating such papers, somehow missed seeing the warrant among the scanty contents of the inmate's file and then were all willing to falsely insist that the warrant was not there.

One credibility issue bears some mention. On the risk screening form (Pet. Ex. 1), an entry of "0" has been written in part H on the line for warrant information. Officer Long expressly denied writing this entry, nor did any other witnesses acknowledge making it. Since the majority of the staff members who filled out the risk screening form were charged with negligence in failing to catch the error in part H, it seems likely that the "0" entry was made by one of these individuals, either during the processing in the early hours of April 27 or perhaps after the erroneous release came to light. However, given the absence of proof, I could reach no conclusion as to when the entry was made or by whom; nor could I reach any conclusion as to which witness, if any, was lying in order to avoid an additional allegation of misconduct.

It is also true that, of all the officers who processed the inmate's paperwork on April 26, only three, Officers Long, Sanders, and Buttacavoli, had any obligation to take any action based upon the presence of the warrant. Officer Long should have noted the warrant on the risk screening form, but failed to do so, Officer Sanders should have and did record the existence of the warrant in the IIS database, and Officer Buttacavoli should have but did not note the existence of the warrant on the surrender form. The BBKC intake staff, including respondent, who reviewed Mr. Gonzalez's paperwork were reviewing only those portions of the papers relevant to housing the inmate. This made the intake staff's statements of certainty about the absence of the warrant slightly suspect, since it was unclear how they would all have a recollection of a piece of paper which was largely irrelevant to their tasks. Furthermore, respondent's observation that Department records are frequently lost or misplaced might have been sufficient to account for a simple disappearance of the warrant, but did not explain how the warrant reappeared in the inmate's file the next day.

Nevertheless, the proof with regard to how the warrant somehow ended up in a file in the general office rather than with the inmate's other paperwork at the courts was equivocal and did not support petitioner's theory that the warrant was at all times where it should have been. Officers Long's and Sanders's testimony established that they saw the warrant at around 4:45 p.m. on April 26, just before Officer Sanders entered the information into the IIS database. The next day, when Officer Sanders was entering the inmate's release information into the computer in the late afternoon, she discovered the data about the outstanding warrant. Another officer then discovered the warrant in the inmate's folder in the general office at BBKC. However, several of the witnesses indicated that the warrant should have been with the inmate's paperwork, which accompanied Mr. Gonzalez from the courts on April 26 to BBKC housing and back to the courts on April 27. There was no evidence that any of the officers who took Mr. Gonzalez, along with his papers, to the courts on the morning of April 27 saw the warrant. Nor was an explanation offered as to why, assuming the warrant was at all times with the inmate's papers, it was not seen by the court personnel who authorized his release. From the evidence, it appears that on April 27 the warrant was not with the inmate's accompanying card and other paperwork, but in a file which was kept in the general office at BBKC.

Based upon all of these considerations, I find that the proof as a whole did not establish by a preponderance that the warrant was with Mr. Gonzalez's paperwork at the time he was admitted to BBKC. At most, the evidence here established only that it was equally possible that the warrant was somehow separated from the inmate's papers and later correctly filed in the inmate's file folder in the general office.

As to petitioner's second theory that respondent had an obligation to check the accuracy of the information on the risk screening form with the IIS database, petitioner's attorney contended that respondent was required by the post order for intake captain (Pet. Ex. 24) to "review" Mr. Gonzalez's records and was therefore negligent in failing to notice the error on the risk screening form. Certainly, the use of the word "review" in this context does not suggest that respondent was required to double-check the accuracy of all of the information on all of the forms with the IIS database. Respondent, as the intake captain, was not Officer Long's supervisor, nor was there any indication that she or her staff had any independent responsibility to check the accuracy of all of the information entered on the risk screening form. It was undisputed that respondent lacked a computer of her own, and could not easily access the database. She would have had to leave her office and go to another part of the facility or issue an order for another officer to verify the information. Absent the presence of the warrant, which, as indicated above, was not proven, there was nothing in Mr. Gonzalez's paperwork which made it exceptional or would have triggered a concern about inaccuracies. No evidence was offered to suggest that intake captains had a duty to check the accuracy of all information on the screening forms of all new admissions with the IIS database. The contention that respondent committed misconduct by not checking the IIS database must therefore be rejected.

Petitioner's counsel further argued that the indication on the risk screening form that the inmate's classification is "incomplete" somehow required further action on the part of respondent. According to Officer Frazier, this notation only meant that, at the time that the inmate was housed, there was no rap sheet for this inmate (Tr. 175). It was common practice to procure a rap sheet later, during the following tour (Tr. 176), since, according to respondent herself, the Department had 72 hours to classify inmates (Tr. 185). There was thus no indication that an incomplete classification was unusual or created any obligation on the part of the intake staff to check the IIS database, which would not have had any information on this issue in any event.

In short, petitioner offered no proof to show that all of the staff who reviewed Mr. Gonzalez's paperwork were under an obligation to check and correct errors made on the warrant portion of the risk screening form prepared by Officer Long. The post order (Pet. Ex. 24) for the intake captain post stated only that the captain must "supervise new admission processing and housing." Although respondent admitted that she had access to a computer and the IIS database, petitioner offered no evidence that the intake captain was herself obliged to review this database for warrants during the new admission process or that she was required to have any of her subordinates do so. As to her duty to review the paperwork for Mr. Gonzalez's court appearance the following morning, the evidence established that the primary responsibility for checking this information rested with Officer Buttacavoli, working in the general office, who received the paperwork immediately after respondent approved the inmate's housing assignment and generated the surrender form specifically intended to alert court personnel to outstanding warrants. It was undisputed that the more common procedure for the generation of the surrender form was to have it printed out from the IIS database,[1] a practice which, in this case, would have revealed the existence of the outstanding warrant and presumably prevented Mr. Gonzalez's release (Tr. 152-53).

I therefore find that petitioner failed to establish that the warrant was with Mr. Gonzalez's paperwork when respondent reviewed it and further that respondent's failure to recognize or correct the error on section H of the risk screening form constituted misconduct. For these reasons, petitioner failed to prove the allegations of misconduct in the charge and it should be dismissed.

FINDINGS AND CONCLUSIONS

Charge No. B0229/2004 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent Sardia Lewis was negligent in processing the paperwork of inmate Eddie Gonzalez.

JOHN B. SPOONER

Administrative Law Judge

March 21, 2005

SUBMITTED TO:

MARTIN F. HORN

Commissioner

APPEARANCES:

PAUL R. MILLER, ESQ.

Attorney for Petitioner

FRANKIE & GENTILE

Attorneys for Respondent

BY: JAMES FRANKIE, ESQ.

-----------------------

[1] Officer Buttacavoli adamantly insisted that, for inmates like Mr. Gonzalez not included on the daily court manifest of scheduled court appearances, it was proper to prepare a handwritten, rather than a computer-generated, surrender form (Tr. 153). He nonetheless conceded that he accepted a penalty to settle the charges alleging that failure to use the computer database to generate the form for Mr. Gonzalez was misconduct (Tr. 153).

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download