Inside a cramped elevator at a supportive housing facility in Brooklyn, a detective placed a handcuffed man resisting arrest into what was later deemed a prohibited chokehold.
Outside the wake for the rapper Prodigy on the Upper East Side, a veteran NYPD lieutenant trying to control a growing crowd shoved a man into oncoming traffic.
Without knocking, three detectives burst into a Brooklyn brownstone to serve a warrant. They didn’t find their suspect but frightened an innocent woman inside — and then claimed the door was open.
In each of these cases, the cops involved were brought up on NYPD misconduct charges after an oversight board, the Civilian Complaint Review Board (CCRB), investigated and declared the allegations “substantiated.”
In each of these cases, a police department judge then found the cops guilty after an internal NYPD trial that included testimony from multiple witnesses. Two of the incidents had been captured on video.
And in all of these cases, the officers involved were cleared, thanks to a unique facet of the NYPD’s disciplinary system: The police commissioner gets the final say.
In each instance, Police Commissioner Dermot Shea or his predecessor, James O’Neill, voided the findings of both the CCRB and the trial judge, summarily declaring that a guilty verdict was unwarranted.
As a result, none of the cops were penalized.
Over the last four years, Shea and O’Neill have embraced this commissioner’s prerogative to alter the punishment in 43 cases of cops found guilty after an NYPD trial, according to THE CITY’s review of 302 trial decisions issued from Jan. 1, 2017, through February 2021 that the NYPD had made public as of Friday.
In five of those cases, Shea or O’Neill overrode judicial findings of guilt. In the rest, the commissioners accepted the judge’s findings of guilt but altered the penalties handed down by the judges.
O’Neill lowered penalties 21 times and increased them 14 times. Shea decreased punishment in five cases and boosted it in four.
Secret Records Released
This pattern of commissioners overruling NYPD judges emerged in trial decisions the department made public for the first time two weeks ago after the courts ruled against police unions’ efforts to keep records like these secret. The NYPD put up trial decisions along with more information on officer histories — including commendations, arrest records and misconduct charges.
The question of the commissioner’s prerogative is central to an ongoing fight between Shea and criminal justice reformers who want to take the final say away from the commissioner and give it to some other yet-to-be-determined authority.
Mayor Bill de Blasio has so far sided with Shea. In January, de Blasio and Shea announced a new NYPD disciplinary “matrix” that included multiple reforms — but kept the final say over discipline with the commissioner.
At a news conference Friday, de Blasio and Shea unveiled the second part of a police-reform report that ostensibly tackles accountability issues, although it does not address the commissioner’s choice policy.
Shea said he didn’t believe the NYPD has an accountability problem, though, he added: “You cannot ignore the emotions that are out there, and you also can’t ignore that if that many people are saying it, you better look in the mirror and say, ‘What can we do better?’”
Shea has been adamant in his opposition to any changes to his authority on discipline, insisting that if the commissioner doesn’t have final say there will be no way to hold him accountable for one of his officers’ behavior.
John Miller, the NYPD’s deputy commissioner of intelligence and counterterrorism and a veteran of the department, said the day final authority is taken away from the commissioner “is the day we lose accountability because you can’t say the buck stops here.”
A statement from the NYPD called the commissioner’s prerogative “essential. It is what gives the commissioner the ability to effectively manage the organization and implement necessary change and reform.”
“A single decision maker as final arbiter, who is also a subject matter expert, ensures the swift, fair and effective discipline that officers and all New Yorkers deserve,” the statement asserted.
But Houston Police Chief Art Acevedo, president of the Major Cities Chief Association in the United States, cited a recent police shooting where a civilian oversight board criticized his decision to fire three cops. Often, he says, civilian boards are more lenient than chiefs in meting out punishment.
“I would say buyer beware,” Acevedo said. “Be careful what you ask for.”
Call for ‘Genuine Accountability’
Criminal justice reformers have a decidedly different take.
The New York Civil Liberties Union (NYCLU), the driving force behind the court ruling that found NYPD’s stop-and-frisk tactics violated the rights of Black and Hispanic New Yorkers, wants the final authority out of the commissioner’s hands.
“Since 2007 we have called for disciplinary authority to be taken away from the police commissioner,” said Christopher Dunn, the NYCLU’s legal director. “Genuine accountability for police misconduct requires genuine independence to make final disciplinary decisions, and everyone understands that the police commissioner is not independent but in fact is a central figure in the system that generates police abuse.”
The Rev. Frederick Davie, chair of the CCRB, believes the board should have final say in meting out discipline after its investigators have substantiated misconduct.
During a City Council hearing last month, he praised parts of the NYPD’s new matrix, but added, “Until we address the issue of the police commissioner’s broad discretion over discipline in impartial independent civilian investigations, these issues will persist, regardless of the composition of the board, the City Council, the Police Department or City Hall.”
Davie, a Presbyterian minister, noted that a police commissioner can overrule a finding of misconduct that was documented by “a thorough evaluation of the conduct in question, with the board ultimately scrutinizing the evidence to determine whether a member of the NYPD violated the law, the Patrol Guide or both.”
In some cases, that evidence even includes video.
Chokehold Cop Goes Unpunished
According to a July 2017 trial decision, then-Commissioner O’Neill overruled a trial judge’s finding that a detective, Richard Thomas, used a prohibited chokehold on a man he was in the process of arresting.
The incident occurred at a Brooklyn supportive housing facility in October 2013 when Thomas and another detective grappled with a resident whose brother had filed a complaint of aggravated harassment against him.
The resident became belligerent, and the detectives handcuffed him and began to escort him from the facility, according to the trial record.
The trial decision states that the detectives, the man and his caseworker crowded into an elevator, where the man threatened to spit on the detectives and at one point mimicked spitting.
Thomas responded by pressing the man up against the elevator wall with his forearm pushed against the man’s neck — a response captured by the elevator’s video camera and corroborated by the man’s case worker.
The NYPD trial judge found that the video showed Thomas had used a prohibited chokehold.
But O’Neill saw something entirely different.
Citing the video, O’Neill determined Thomas’ actions “did not appear to constitute an actionable chokehold, were reasonable, and necessary under the totality of the circumstances.” Thomas, O’Neill declared, was not guilty.
Pushed into Traffic
In the case of Lieutenant Kevon Sample, the trial judge relied on traffic camera video in declaring the cop guilty of unnecessary use of force.
In June 2017, Sample was dealing with a large crowd that had gathered outside an Upper East Side funeral home where Prodigy of the hip-hop duo Mobb Deep was being waked. As the funeral home was preparing to close, Sample instructed officers at the scene to clear the area.
One man, however, refused to move.
“It’s a free country. I can stand wherever I want to stand. You can’t do anything to me,” Sample said the man told him.
The cameras captured Sample pushing the man across Madison Avenue despite a “Do Not Walk” sign and into traffic. The traffic was moving slowly, but at one point a driver slammed on the brakes to avoid hitting the man.
In his December 2019 decision the trial judge acknowledged the man didn’t comply with police orders, but added “there is nothing in the record that [suggested the man] had to be pushed at the precise time that traffic was moving.”
The trial judge found the lieutenant guilty of unnecessary use of force.
But Shea took a different decidedly different view. He found Sample had exercised “an acceptable level of force,” noting that the video showed the traffic was “moving at an extremely slow pace and that at no time was the individual in any danger of being struck.” He declared Sample not guilty.
Sample was not reachable for comment. The president of his union did not respond to a message seeking comment.
Busting into Homes
Both Shea and O’Neill rejected trial judges’ findings in two cases in which cops barged into people’s homes to arrest a suspect.
According to the 2016 trial decision, Detectives Eric Ortiz, Kenny Valadares and Ryan Lynch had a warrant to arrest an accused rapist who’d skipped a court appearance. They forcefully entered a Brooklyn brownstone the owner said was locked, barging into the home at 6 a.m.
The owner was out that morning. His wife was home alone. As the cops entered the brownstone, she called out to her husband, assuming he’d returned.
The accused rapist had moved out of the building two months before.
The cops for the first time identified themselves, but the woman wasn’t sure who they were and clutched a kitchen knife behind her back. She said they told her the door was unlocked, but after they left, she noticed damage to the entrance. A home surveillance camera showed a detective had pushed his way in.
The accused rapist had moved out of the building two months before. The third floor apartment, where he once lived, was being renovated at the time.
The trial judge determined the cops had lied to her, and that they should have identified themselves before entering. The judge found Ortiz, Valladares and Lynch guilty of entering “without sufficient legal authority,” and recommended they each forfeit three vacation days.
O’Neill reversed that decision, deciding that based on his reading of the law, “entry in the premises in this manner was justified.” He declared all three detectives not guilty of all charges.
The three detectives were not reachable for comment. A representative of their union did not respond to questions about the case.
Cleared and Promoted
Shea took a similar position when three plainclothes cops allegedly pushed their way into an East Harlem apartment on July 2, 2017, in pursuit of a suspect they believed had just stabbed someone. A tenant in the apartment saw three individuals standing outside her door, which she opened “to find out what they wanted.”
The tenant testified that the three cops — identified as Patrol Officers Anthony Baresi, Sheila Ramos and Artur Espenberg — then pushed their way inside. When another tenant in the apartment began screaming at them to leave, they ignored her pleas and began going room to room, searching for the suspect, according to testimony.
The officers found the suspect and took him into custody. They did not have a warrant and the tenant who opened the door said one officer pinned her autistic teenage brother to the wall while they searched the rooms.
The trial judge determined all three cops improperly entered the apartment, and found each guilty of abuse of authority.
Shea threw out the judge’s findings, writing in an April 2020 “Penalty Departure” that the cops were let in voluntarily by the tenant, and that the department “does not train its officers that consent to enter a premises in order to effectuate an arrest may be revoked after initially being voluntarily given.”
For Baresi, it marked the second time misconduct allegations had triggered a response.
In 2015 and 2016, Baresi had been under what’s called Level 1 Force monitoring, police records show. He’d received three misconduct complaints within a year: one each for using a prohibited chokehold, using a nightstick as a club, and unauthorized use of physical force. While these allegations were not substantiated, the three complaints within a year automatically triggered increased oversight by the department.
Within a month after Shea rejected the trial judge’s findings in the East Harlem episode, Baresi was promoted to detective.
Pat Lynch, president of the Police Benevolent Association, said Shea’s overruling of the trial judge “is an example of the basic principles of justice as they apply to the NYPD disciplinary system.”
“The trial judge misapplied the relevant law, the police officers appealed the decision to the police commissioner on those grounds, and the ruling was overturned,” he added. “That is the same way the process works in almost every other court in this country. Anyone who is looking to strip police officers of their right to appeal a disciplinary decision, or the police commissioner of his right to overturn one, is not interested in a fair or just process.”
Changing Penalties
When O’Neill disapproved of the penalties imposed by trial judges, more often than not — in 21 out of 35 opportunities — he would lessen the sanction. Take the case of Officer Clinton Wike.
According to the 2017 trial decision, Wike attended a concert and then a St. Patrick’s Day celebration with friends in Canada before being kicked off a plane for drunkenness.
He got into a dispute at the airport and was arrested — but did not initially notify the department about his arrest as required. The NYPD learned of the arrest from Canadian law enforcement.
The trial judge found Wike guilty of being unfit for duty and of failing to notify the department of the arrest, and recommended that he be fired.
O’Neill rejected that, deciding instead Wike should be suspended for 30 days and put on probation for a year with periodic breath testing and counseling. He gave no explanation.
A Matter of Authority
On other occasions, O’Neill toughened the sanctions handed out by trial judges. In the case of Officer Mark Whyte, the issue was respect of authority.
In the summer of 2015, Whyte and a sergeant confronted men drinking in a Harlem park. Whyte confiscated a bottle and issued summonses for open container violations. As the two walked away, the sergeant asked Whyte to hand him the bottle.
‘I won’t be disrespected in front of the perps.’
According to the trial decision, Whyte refused, stating, “I won’t be disrespected in front of the perps.” When the sergeant asked him if there was anything wrong, Whyte replied to his superior officer, “I told you to get in the car.”
In his 2016 decision, the trial judge recommended Whyte forfeit eight vacation days. But O’Neill decided that wasn’t enough, adding the additional punishment of placing Whyte on probation for a year.
He cited “the totality of the issues and circumstances” in explaining his position.
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