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Dep’t of Correction v. Serrao

OATH Index No. 2050/07 (Oct. 16, 2007)

Correction officer charged with assault and making a false report. Administrative law judge found hearsay statements sufficient to sustain the charges and recommended that employee be terminated.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against –

LLOYD SERRAO

Respondent

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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 that, during an off-duty incident, respondent Lloyd Serrao, a correction officer, assaulted his girlfriend and two other individuals, fired a gun, and subsequently made false statements about the incident.

A hearing on the charges was conducted before me on September 11, 2007. Petitioner presented audio files of interviews with two eyewitnesses as well as an audio file of respondent’s interview. Respondent testified on his own behalf, admitting that he struck his girlfriend and that his gun discharged twice, but denying that he intended to fire the gun.

For the reasons provided below, I find that evidence was sufficient to sustain the charges and recommend that respondent be terminated.

ANALYSIS

The charged incident occurred at around 1:00 a.m. on July 1, 2006, at a private residence on 101st Avenue in Queens, New York. Petitioner’s proof rested primarily upon the hearsay statements of two eyewitnesses, Samantha Drapaul and Anul Seemangal. Ms. Drapaul is a friend of respondent’s girlfriend, Vashti Chunnulal. Mr. Seemangal is Ms. Drapaul’s boyfriend. Both were interviewed by Department investigators on March 2, 2007, and audio recordings of the interviews (Pet. Exs. 3 and 4) were admitted into the record.[1]

Ms. Drapaul recalled that, on the evening of June 30, 2006, Ms. Chunnulal accompanied her to a party in a friend’s back yard on 101st Avenue in Queens. During the evening, Ms. Chunnulal telephoned respondent and spoke with him about picking her up. When respondent arrived in a white BMW, Ms. Drapaul and Ms. Chunnulal left the party and went out to the street to meet him. After Ms. Chunnulal walked over to respondent’s car, parked across the street, respondent got out and, without saying a word, “punched Vashti to the floor.” He then kicked her. When Ms. Drapaul protested, respondent ran over to her and punched and slapped her. Ms. Drapaul’s brother saw the attack and screamed for help.

Mr. Seemangal stated that, at this point, he ran over to assist Ms. Drapaul. Respondent pulled out a small handgun and asked Mr. Seemangal, “What you going to do about it?” Respondent then “slapped” Mr. Seemangal with the gun and fired a shot at his head, which Mr. Seemangal managed to duck. Mr. Seemangal ran, as respondent pushed him into a gate and fired the gun at him a second time. At some point, Mr. Seemangal’s brother knocked the gun out of respondent’s hand, but respondent quickly recovered it. Mr. Seemangal and his brother hid behind a van a couple of doors away and called 911. Mr. Seemangal saw respondent again hit and kick Ms. Drapaul and then drag Ms. Chunnulal to the car and drive away. Ms. Drapaul recalled that he fired the gun a third time from the car.

Some neighbors followed respondent’s car and, according to the arrest report (Pet. Ex. 9), he was apprehended at 1:37 a.m. at 103rd Avenue. After respondent was arrested and brought back by the police, Ms. Drapaul recalled that he told her, “I see you, Samantha. I’m going to get you.” Both Ms. Drapaul and Mr. Seemangal picked out respondent’s photo from a photo array assembled by the Department investigators.

Respondent testified that, on the night of the party, he had asked Ms. Chunnulal not to go. He thought Ms. Drapaul and the others she would be socializing with were “a bad influence” because they smoked and drank (Tr. 76-77). Ms. Chunnulal had assured him that she would not go out. He admitted to being “upset” when he arrived to pick up Ms. Channulal (Tr. 78-79). He also admitted that he struck Ms. Chunnulal. He recalled Ms. Drapaul asking him what he was doing, and he told her to mind her own business. He denied having any “contact” with her (Tr. 81-82).

According to respondent, he was prevented from leaving by several men who emerged from the residence and surrounded him, throwing some kind of liquid at him. As respondent hurried back to his car, his gun fell out and he saw it on the ground with “two shell cases,” which he picked up and placed in his pants pocket (Tr. 87) He admitted that the gun fired twice, although he insisted that he did not pull the trigger either time. He insisted that the gun fell to the ground and “broke apart” (Tr. 87). He denied hitting Mr. Seemangal, although he admitted hitting someone as he struggled to escape (Tr. 85-86).

Respondent drove home but then left again in a black BMW because he wanted to drive Ms. Chunnulal home and didn’t want the others pursuing him. He was arrested as he drove back to his home (Tr. 90).

Police Detective Christopher Painton, qualified as a firearms expert, testified that respondent’s gun was a Glock 9 millimeter. This gun would not fire without the trigger safety being depressed at the same time as the trigger. In Detective Painton’s opinion, the safety would have prevented the weapon from firing if it were dropped on the ground in the manner described by respondent (Tr. 59). Detective Painton examined and tested respondent’s gun and wrote a report (Pet. Ex. 6) on July 7, 2006, finding that the weapon was fully “operable.”

On November 16, 2006, respondent pled guilty to disorderly conduct and was sentenced to conditional discharge after one year along with being subject to an order of protection (Pet. Ex. 15).

The hearsay statements of Ms. Drapaul and Mr. Seemangal seemed both credible and reliable. See Dep't of Sanitation v. DiDonna, OATH Index No. 164/05, at 6 (Apr. 15, 2005); Health and Hospitals Corp. (Kings County Hospital Center) v. Brown, OATH Index No. 802/00 (Feb. 28, 2000). It is true that there were some inconsistencies between the two statements. Ms. Drapaul recalled the gun being knocked from respondent’s hand prior to the second shot being fired, while Mr. Seemangal recalled the second shot coming before the gun fell. Ms. Drapaul recalled respondent firing a third shot as he returned to the BMW, while Mr. Seemangal mentioned only two shots.

However, the two statements were generally consistent and corroborated by respondent’s admission as to a number of prominent details, such as that he was angry when he arrived at the party, that he was driving a white BMW, and that he struck Ms. Chunnulal and another male. Their statements describing shots being fired by respondent were further corroborated by the recovery of one shell casing at the scene and one more from respondent’s pocket, by their and Ms. Chunnulal’s prompt complaints to the police (see Pet. Exs. 10, 11, and 12), and by Ms. Drapaul’s and Mr. Seemangal’s identification of respondent from a photo array (Pet. Ex. 16). Their reliability of their statements was further supported by the police record of three 911 calls (Pet. Ex. 13), made at 1:02 a.m., reporting that a correction officer had fired two shots. There was no evidence that either declarant had any motive to provide false statements against respondent.

Respondent’s account was incredible, particularly his insistence that his weapon accidentally discharged twice. According to Detective Painton, the Glock gun could not have accidentally discharged by being dropped on the ground. Likewise respondent’s contention that he felt threatened by seven men surrounding him seemed highly unlikely, given the undisputed evidence that respondent had a loaded gun in his hand. His description of making a desperate retreat was inconsistent with his admission that he paused to pick up the shell casings. Respondent’s account of going home, switching cars, and driving back out was also incompatible with his contention that he was a frightened victim and fully consistent with the statements of Ms. Drapaul and Mr. Seemangal that he was the aggressor.

Far more plausible was the account offered by Ms. Drapaul and Mr. Seemangal, who stated that respondent arrived at the party in a fury and attacked first Ms. Chunnulal and then the two of them, firing at least two shots at Mr. Seemangal before he finally drove away. Based upon their statements, I therefore find that, at around 1:00 a.m. on July 1, respondent punched and kicked Ms. Chunnulal. When Ms. Drapaul tried to protect her friend, respondent began hitting and kicking her. Mr. Seemangal then went to the aid of Ms. Drapaul and respondent drew his gun, striking Mr. Seemangal with it and then firing two shots at Mr. Seemangal. Respondent forced Ms. Chunnulal into his car and fled.

These findings are sufficient to find that respondent assaulted Ms. Chunnulal and Ms. Drapaul with an intent to cause physical injury. These actions would constitute the crime of third degree assault under Penal Law section 120.00. I further find that respondent assaulted Mr. Seemangal with a weapon and with intent to cause physical injury, an action which would constitute the crime of second degree assault under Penal Law section 120.05(2). He also brandished and fired a gun at Mr. Seemangal, an action which would constitute the crime of second degree reckless endangerment under Penal Law section 120.20. These actions are in violation of Department rules 3.20.010 (“members of the Department shall present a professional demeanor . . . .”), 3.20.030 (member may be dismissed for any “conduct unbecoming an officer”), and 3.20.300 (“all behavior which threatens the good order and discipline” of the Department may be punished).

The second charge, alleging false statements, rested upon the statements made during respondent’s MEO 16 interview, which petitioner had transcribed (Pet. Ex. 2). In the interview, respondent stated several times that his gun discharged accidentally when it fell (Pet Ex. 2 at 7, 12-13, 15, and 24). As explained above, an accidental discharge as described by respondent was physically impossible and contradicted by the more credible accounts from Ms. Drapaul and Mr. Seemangal. I find that this statement was clearly a fiction that respondent concocted in order to avoid being disciplined for the incident.

Respondent also stated in the interview that he did not recall hitting either Ms. Drapaul or Mr. Seemangal (Pet. Ex. 2 at 10, 11, 12, 24, and 25). His claim of not recalling repeatedly striking these two individuals was not credible, particularly given the prominence of this fact and his recall of other salient details of the incident. These false statements violated Department rules 3.20.030 (member may be dismissed for making a “false statement”) and 4.30.020 (members may not make “false statements”).

However, I was not convinced that respondent’s assertion of a lack of recall of certain other details should be found to be false. In his interview, respondent admitted that he struck Ms. Chunnulal in the face but stated that he did not recall how many times he did so (Pet. Ex. 2 at 10). Given respondent’s highly agitated mental state, and the passage of over six months between the time of the incident and the time of the interview, I found it plausible that respondent might forget or be uncertain of the exact number of times he struck his girlfriend. Where respondent admitted that he struck Ms. Chunnulal, I did not find that his lack of recall as to the exact number of blows delivered was necessarily false.

In sum, both specifications 1 and a portion of specification 2 should be sustained.

FINDINGS AND CONCLUSIONS

1. Specification 1 of DR 271/2006 should be sustained in that, on July 1, 2006, respondent assaulted Vashti Chunnulal and Samantha Drapaul and assaulted and endangered the life of Anul Seemangal, in violation of Department rules 3.20.010, 3.20.030, and 3.20.300.

2. Specification 2 of DR 37/07 should be sustained in that, on February 14, 2007, respondent made false sworn statements concerning the July 1, 2006 incident, in violation of Department rules 3.20.030 and 4.30.020.

RECOMMENDATION

Respondent was appointed as a correction officer in 1996 and has no prior disciplinary record. Certainly his 11 years of service provides some reason for mitigation of any penalty.

However, the circumstances of this incident in which respondent attacked three people and fired his off-duty weapon in a fit of anger leave little question that respondent is unfit to be a correction officer. This behavior displays a violent and intemperate character unsuited for dealing with incarcerated inmates. It also bespeaks a degree of lawlessness which places the Department in a poor light, since respondent came into possession of this weapon as a result of his employment as a correction officer. My conclusion that respondent must be terminated is confirmed by respondent’s false statements as to the supposedly accidental nature of the shots he fired and as to assaulting Ms. Drapaul and Mr. Chunnulal. See Dep’t of Correction v. Dash, OATH Index No. 336/06 (Mar. 28, 2006), aff’d, NYC Civ. Serv. Comm’n Item No. CD 07-66-SA (June 13, 2007) (correction officer who assaulted his wife terminated); Dep't of Correction v. Reyes, OATH Index No. 477/97 (Nov. 17, 1997), aff'd, NYC Civ. Serv. Comm'n Item No. CD 99-36SA (Apr. 9, 1999) (correction officer who made false official statements regarding the discharge of her firearm terminated).


Accordingly, I recommend that respondent be terminated for the misconduct which occurred here.