NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS. In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - ANGEL AQUINO Respondent

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1 Dep t of Correction v. Aquino OATH Index No. 1425/14 (Apr. 25, 2014), modified on penalty, Comm r Dec. (Mar. 8, 2016), appended, aff d, NYC Civ. Serv. Comm n Case No (Aug. 4, 2016), appended Correction officer found guilty of sleeping and/or failing to remain alert while on duty. ALJ recommended eight days suspension, with credit for time served. Commissioner increases penalty to a ten-day suspension. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - ANGEL AQUINO Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This disciplinary proceeding was referred by the Department of Correction ( Department ), pursuant to Section 75 of the Civil Service Law. Civ. Serv. Law 75 (Lexis 2013). Correction Officer Angel Aquino is charged with inefficient performance of duties by sleeping and/or failing to remain consistently alert while supervising an inmate on June 11, Respondent denies the charge. The hearing was conducted before me on April 7, Petitioner presented the testimony of two witnesses, and respondent testified on his own behalf and presented the testimony of another officer. For the reasons set forth below, I find that petitioner proved the misconduct charged. I recommend a penalty of eight days suspension. ANALYSIS Respondent has been employed by the Department as a correction officer since 2007 (Tr. 101). On the day in question, he was working his steady midnight tour, 2300 hours to 0730 hours, when he was assigned, with Officer Michael Santana, to escort a sick inmate to Elmhurst

2 - 2 - Hospital for care (Tr ). The misconduct is alleged to have taken place during the hospital run in the B1 holding area of the emergency room at Elmhurst Hospital, where the officers were maintaining watch over the inmate, who was on a gurney to which his right arm and left leg were shackled (Tr. 16, 103, 104). The B1 holding area of the ER is accessible to civilians as well as inmates (Tr. 104). Deputy Warden Daniel O Connell is the commanding officer for the Department s hospital prison wards, which includes Elmhurst and Bellevue Hospitals. He testified that he tours this area of the hospital each day at the start of his tour, around 0600 hours (Tr. 17, 26). On June 11, 2013, he was conducting the tour when he saw respondent s partner, Officer Santana, who was standing at one end of the room; he approached and asked who he was watching and where was his partner (Tr. 17, 18). Because the area was L-shaped, Deputy Warden O Connell could not see respondent, who was approximately 40 feet away, until he walked over to Officer Santana (Tr. 17, 27, 42). Santana looked to his left and O Connell saw respondent, who appeared to be asleep sitting in a chair, and the prisoner asleep in the bed to the right of him (Tr. 17, 21). The deputy warden told Officer Santana it does not look well for his partner (Tr. 18); that s not a good look -- your partner has a problem (Tr. 28). O Connell walked toward respondent, stood in front of him, and told Santana to tap him on the shoulder to wake him up (Tr. 19). Santana touched him on the shoulder and respondent awoke and stood at attention (Tr. 20, 32). The deputy warden asked respondent for his paperwork, and respondent handed it to him. He told respondent he would get him a relief. Respondent did not offer him any information or explanation at the time (Tr. 21, 33, 35, 37). Captain Hannah arrived and the deputy warden told her what happened and left (Tr ). Deputy Warden O Connell described respondent as seated, leaning back in a chair, head back and face up to the ceiling, eyes closed, with his arms dropped to his sides and hands open and turned outward (Tr. 17, 32, 36, 43, 45). O Connell testified that he heard respondent breathing heavily before Santana tapped him (Tr. 33). Respondent did not move or notice him and he did not appear to be conscious (Tr. 18, 19). His eyes were closed and did not move until Santana woke him (Tr. 45).

3 - 3 - The deputy warden said his exchange with Officer Santana took about a minute and a half, although it could have been as little as 16 seconds (Tr. 29, 31). He estimated that he observed respondent for about two minutes before seeing him respond (Tr. 42). At an outpost such as a hospital prison ward, the Department is concerned about prisoner escape attempts because the environment is less secure, so an officer s duty is to remain alert at all times and to secure the safety of the people around them, to make sure the inmate is properly shackled, and that medical treatment is provided for him (Tr ). The officer, his partner, and the public all are potentially at risk when an officer is asleep or otherwise fails to be alert. Deputy Warden O Connell denied raising his hand in an effort to silence a response from respondent (Tr. 36). He said that had he been told that respondent had just inserted drops in his eyes, he would have taken that into consideration (Tr. 40). He questioned why, if true, respondent did not show him the eye drops at the time (Tr. 39). Deputy Warden O Connell submitted a written report memorializing the incident (Pet. Exs. 1, 2) that was consistent with his testimony. Captain Hannah is the captain for administration at Elmhurst Hospital prison ward, and she was the tour commander on duty at the time of the incident (Tr. 49). She made two tours of the ER during the midnight tour on June 11, 2013 (Tr. 50, 56; Pet. Ex. 5). She said the officers were seated against the wall when she toured; but she also said they were standing when she toured (Tr ). They were four to five feet away from the inmate who she believed was asleep on the gurney. She said respondent s eyes were red during her first tour of the night, but she did not ask about it because he was alert (Tr. 53, 66). When she toured at 0600 hours, both officers were standing; they told her that everything was okay and they did not need to take a personal, or break (Tr. 52). She said that staff would normally ask for a personal in order to take medication (Tr. 65). She was unaware of any request made by respondent for a personal that night (Tr. 54, 63-64). She told them to remain alert and warned that the warden typically tours the facility around that time. Captain Hannah testified that Deputy Warden O Connell called her to the ER around 0635 hours because he found an officer sleeping and he wanted her to collect reports (Tr. 54, 56). Officer Santana had never met respondent before working with him on June 11, 2013 (Tr. 98). He testified that they both were seated next to one another, talking, each time the captain toured the area (Tr. 73). He noticed that respondent s eyes were really red and swollen and

4 - 4 - respondent told him he had recent eye surgery (Tr. 74, 75). Santana, who said he saw respondent put drops in his eyes five times that night, said that respondent held his eyes closed for two or three seconds after putting in the drops (Tr. 74, 82, 83). He said respondent was putting drops in his eyes just before Deputy Warden O Connell arrived, and he had walked across the room (maybe 30 feet away) because his legs were getting tired and he was a little sleepy (Tr ). Officer Santana testified that respondent had finished placing the drops in his eyes and his eyes were not closed when Santana walked across the room, away from the inmate (Tr. 84, 85). He conceded however, that respondent could have closed his eyes for several seconds while his back was turned (Tr. 96). Because of the shape of the room, Officer Santana said, Deputy Warden O Connell was initially unable to see respondent when he entered the room (Tr ). The deputy warden was in plain clothes so he identified himself to Santana and displayed his shield and identification (Tr ). The deputy warden then asked him is that your partner sitting over there? (Tr ); as they walked over to respondent, he said it s not looking good for your partner (Tr. 88). The statement made Santana turn around and he saw his partner sitting there awake, looking at them as they approached him (Tr. 77, 78). Santana said he did not understand what the deputy warden meant. In five to eight seconds, maybe as many as 15, they had walked over to respondent (Tr. 77, 87). Officer Santana said 30 to 40 seconds had elapsed from the time he saw respondent put drops in his eyes to the time that he and Deputy Warden O Connell approached him (Tr. 79). Santana did not recall the deputy warden telling him to wake up his partner (Tr ). Nor did he recall calling out to his partner Aquino Aquino as he walked across the room (Tr. 90). He said that respondent was sitting straight up in his chair, his eyes were open, and he looked at them as they approached and then stood (Tr. 89, 93). As respondent and the deputy warden spoke, Santana turned his attention to the prisoner who was being seen by the doctor at the time, so he did not hear their conversation (Tr. 78, 79). The deputy warden called the captain and left when the captain arrived. I was skeptical of Officer Santana s version, however, because of the disconnect between the deputy warden s spontaneous expression of concern upon sight of respondent which could not be reconciled with Santana s insistence that his partner was looking directly at them.

5 - 5 - Officer Santana stated in his written report that a male white in plain clothes walked towards him and [a]t that time I didn t know who the male was until co [sic] Aquino told me he was Dep O Connell (Pet. Ex. 3). His statement in the report is untrue if I am to credit his sworn testimony that he had just gotten up to take a walk to the other end of the room when a male white in plain clothes approached me and showed me his shield and ID and told me who he was (Tr. 74, 91) (emphasis added). The report omitted other facts that he testified to, such as his observation that respondent s eyes were red and swollen and that he placed drops in his eyes several times that night (Pet. Ex. 3; Tr ). On May 9, 2013, respondent had Lasik corrective eye surgery (Resp. Ex. A; Tr. 110). His post-operative care included eye drops which, according to the prescription, should have been inserted four times per day (Resp. Ex. A). 1 Respondent testified that he inserted the drops two to three times a day and used rewetting drops as needed to reduce dryness and irritation (Tr ). To apply the drops, respondent said he would tilt his head back, place a drop in each eye, and close his eyes momentarily, or for a couple of seconds (Tr ). Although the medication would sting for two to three seconds, it did not negatively affect his eyesight or discolor his eyes (Tr. 108, 132). Nor did the medication make him drowsy (Tr. 112). He denied that applying the drops affected his ability to perform his job duties (Tr. 109). Respondent testified that he was not asleep but was placing drops in his eyes at the time that Deputy Warden O Connell came into the area on June 11, 2013, and that he saw Deputy Warden O Connell walking toward him with Officer Santana just after inserting the drops (Tr. 106, 117, 138). As they drew closer, respondent stood up and started walking toward the deputy warden (Tr. 114). Deputy Warden O Connell stated to him that he was not in a good situation right now (Tr. 114). Respondent testified that he knew what O Connell was thinking so he tried to explain, but the deputy warden put up his hand, as if to silence him; O Connell took out his Blackberry and asked respondent for his name and shield number (Tr. 114, 137). Respondent made no further attempts to explain to the deputy warden, or even to show him the eye drops (Tr ). He said the conversation had to end because it was going nowhere as the deputy 1 Respondent testified that he was taking Prednisolone. The prescription called for respondent to insert these drops for a period of a week, or as directed by his doctor (Resp. Ex. A). To explain why he would have been applying the drops on June 11, four weeks after his surgery, respondent testified that, after surgery, he developed blood pooling in the white area of his left eye, which took a few weeks to clear up (Tr. 108). His doctor instructed him to continue use of the medication for a longer period, and he mistakenly believed that he needed to continue the drops until they were depleted (Tr. 112, 126). He said that, despite multiple follow-up visits with his doctor, he was never told that it was no longer necessary to take the medication (Tr. 127).

6 - 6 - warden did not want to hear him (Tr. 142). The deputy warden summoned Captain Hannah to the area and said nothing further to him (Tr. 115, 116). Respondent explained to Captain Hannah what happened but did not show her the eye drops (Tr. 143). Captain Hannah s testimony did not indicate whether she was told that respondent was inserting eye drops at the time, and she was not asked what, if anything, respondent told her about taking eye drops. Thus, she did not corroborate his claim. Describing how he took the drops that day, respondent testified that he was seated with his back against the chair and his head tilted back for five to ten seconds (Tr. 116). At the time, Santana had just walked away after respondent told him that he had to put drops in his eyes real quick (Tr. 116). Officer Santana was 20 to 30 feet away, and respondent estimated that 20 seconds passed from the time he spoke to Santana to the time that he saw him walking over with the deputy warden; he said his eyes were closed the entire time (Tr. 119). Respondent s written report states that his eyes closed for a few moments as he rotat[ed] his eyeballs to let the medication absorb (Pet. Ex. 4). When asked to square his testimony that he would close his eyes for only a few seconds, with the medical instructions to keep his eyes closed for one to two minutes, respondent stated merely that he followed the instructions to the best of my ability (Tr. 133, 135, 140), which appeared to be an attempt to avoid a direct response to the explicit contradiction in his testimony. He testified that he held the drops in his closed eyes for one to two minutes, in accordance with the instructions (Tr. 125, 135), and that he held the drops in his closed eyes for 10 to 15 seconds (Tr. 140). Even if only for 10 to 15 seconds, petitioner argued, respondent admittedly failed to maintain visual observation of the inmate for that period of time, to which he responded that the inmate was sleeping. Respondent concluded that his eyes were closed only momentarily (Tr. 141). In all, respondent s repeated re-characterization of the amount of time spent with his eyes closed greatly undermined his credibility. Respondent s written report contained other inconsistencies as well. Contrary to his testimony that he watched Deputy Warden O Connell approach him, and even walked toward him, he wrote in his report that Officer Santana informed him that Deputy Warden O Connell was in the area (Pet. Ex. 4). When asked the meaning of this statement, he said that it referred to the fact that Officer Santana called out to him saying Hey A! as Santana and the deputy warden walked toward him (Tr. 139). Not only did Officer Santana fail to corroborate this part

7 - 7 - of his story, but the explanation defies logic since there would be no reason to call out to him if he was in fact looking straight at them and walking toward them, according to respondent. Respondent s timecard showed that he worked two eight-hour tours of duty the day before the incident, which allowed only an eight-hour period for him to go home, eat, sleep and clean up before having to return to work again at 2300 hours on June 11 (Pet. Ex. 6). Petitioner offered this as a possible explanation for respondent falling asleep. Respondent admitted asking for a personal around 0400 hours and said he was told there was no staff to relieve him (Tr. 119). There was no evidence that the overtime was ordered. Given the numerous estimates offered by respondent of the length of time he held his eyes closed after placing drops in them, I concluded that none could be trusted. It could have been that he had no rule of thumb for holding the drops in his eyes, but I believed that he was being untruthful and sought to match his testimony to other evidence placed in the record. I found this testimony unworthy of belief, and I doubted generally respondent s assertion that he was inserting eye drops at the time. In making a credibility determination, the tribunal considers a number of factors, including witness demeanor, consistency of a witness testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness testimony comports with common sense and human experience. Dep t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD A (Sept. 9, 1998). Respondent is highly motivated to deny that he was sleeping given his interest in the outcome of the hearing. On the other hand, I was unable to detect any motivation for Deputy Warden O Connell to offer a false account of what happened. According to respondent, this was the first time the two had met (Tr. 148), so there was no history between them. The deputy warden testified that he observed respondent apparently sleeping, made note of it to his partner, Officer Santana, walked over to respondent and instructed Santana to wake him all before respondent opened his eyes. According to his testimony, respondent did not open his eyes until after being tapped on the shoulder by Officer Santana. Respondent offered no explanation for what occurred at that time, a fact that is undisputed. The question is whether the reason offered at the hearing for respondent s failure to explain is a credible one. Manifestly, the time to explain to Deputy Warden O Connell that he was applying eye drops -- and was not sleeping -- was at the moment that he was accused. Respondent knew the

8 - 8 - captain was being summoned to write him up for misconduct. Yet, he failed to offer this relatively uncomplicated explanation to the deputy warden at the time of the incident. His failure to do so severely undermines the credibility of his claim that he was inserting eye drops in his eyes, not sleeping, at the time the deputy warden saw him. Not only would it have enabled the deputy warden to assess for himself whether he was mistaken as to what he thought he saw, but it would have also enabled respondent to show the deputy warden the eye drops. He did not do that. He claimed that he told Captain Hannah about the eye drops, but she was not asked to corroborate that in her testimony. As a consequence, I find the evidence insufficient to establish his defense. Contrasting Deputy Warden O Connell s version of events to respondent s, the latter was problematic and lacking in credibility. Critical parts of respondent s version were disputed even by Officer Santana who testified on his behalf. For example, respondent claimed not only that he was awake and alert, but that he was walking towards the deputy warden at the time the deputy warden was accusing him of sleeping. That claim was corroborated by no other evidence on the record. Officer Santana did not see respondent walk toward them. He said that respondent was sitting in the chair as they approached him and stood as they got close to him, thus prompting the question on cross examination why his partner waited until the deputy warden had crossed the room before standing to salute him (Tr. 89, 93). I credited Deputy Warden O Connell s detailed recollection of respondent s body position when he saw him, which was the same in his testimony as it was in both drafts of his written report, that respondent was observed sitting with his eyes closed facing the ceiling with his arms to his sides (Pet. Exs. 1, 2). The fact that his arms were at his sides suggests an unguarded, resting position. That resting position, along with the passage of time that respondent remained in the position, unresponsive, until Santana and O Connell crossed the room and Santana tapped respondent on the shoulder, is convincing circumstantial evidence that respondent was indeed asleep. Fire Dep t v. Rozenblyum, OATH Index No. 1738/03 at 11 (Jan. 21, 2004), modified on penalty, Comm r Dec. (Dec. 21, 2004), aff d, NYC Civ. Serv. Comm n Item No. CD05-53-SA (Aug. 26, 2005) (evidence established fire inspector was asleep on duty when he was found sitting up at his cubicle with his head on his desk and supervisor s testimony that he observed employee for a few seconds before touching him to wake him up, credited at least in part due to specificity of supervisor s description of employee s body position).

9 - 9 - The extent to which Officer Santana s testimony differs from Deputy Warden O Connell s can be explained by a likely attempt to help his fellow officer avoid sanction. I find that petitioner s proof established the charged misconduct. FINDING AND CONCLUSION Petitioner proved that respondent was sleeping and/or failing to remain alert while supervising an inmate on June 11, RECOMMENDATION Upon making the above findings, I obtained and reviewed an abstract of respondent s employee performance service report (Form 22R) for purposes of recommending an appropriate penalty. Officer Aquino was appointed to the Department as a correction officer on August 30, He received a formal reprimand in May 2013, for failing to report to work as scheduled. There is a minor penalty for misconduct occurring after June 2013, which I have not taken into consideration here for purposes of progressive discipline. For the misconduct proven, the Department seeks a 10-day suspension, which is the length of the pre-trial suspension imposed. The request is in line with prior OATH precedent for sleeping or inattentiveness while on duty, which include suspensions that range from seven to ten days. See Health & Hospitals Corp. (Harlem Hospital Ctr.) v. Henry, OATH Index No. 2196/13 (Dec. 9, 2013) (7-day suspension recommended for special officer assigned to a security post who was either sleeping on post or in a position that would be perceived as sleeping, according mitigation for first instance of formal discipline); Dep t of Correction v. Aviles, OATH Index No. 457/02 (Apr. 18, 2002), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Apr. 11, 2003) (10-day suspension recommended for a correction officer charged with sleeping on duty while assigned to watch a high-flight risk inmate in a hospital psychiatric unit); Dep t of Correction v. Gilcrest, OATH Index No. 592/95 (Dec. 6, 1994) (six suspension days recommended where officer s inattentiveness created a marginal security risk). In this case, respondent has a minor prior disciplinary history. His tenure with the Department is relatively brief and is not sufficient to warrant mitigation. The offense is serious because it implicates the public safety as well as the security of Department and hospital staff.

10 However, there were no adverse consequences. The inmate was asleep and shackled to a hospital gurney at the time, and there was no evidence that he posed an unusual risk. Under these circumstances, I recommend a penalty of eight days suspension, with credit for time served. April 25, 2014 SUBMITTED TO: JOSEPH PONTE Commissioner APPEARANCES: PRECIOUS BONAPARTE, ESQ. Attorney for Petitioner KOHLER & ISAACS, LLP. Attorneys for Respondent BY: GREGORY WATFORD, ESQ. Tynia D. Richard Administrative Law Judge

11 x In the Matter of Department of Correction, Petitioner OATH Index No DR# 356/2013 -against- Correction Officer Angel Aquino Respondent. X ACTION OF THE COMMISSIONER The instant matter was sent for my review after the report and recommendation issued by Administrative Law Judge Tynia D Richard (hereinafter "ALJ Richard) of the Office of Administrative Trials and Hearings (hereinafter OATH). ALJ Richard presided over the fact finding hearing in the instant matter on April 7, ALJ Richard issued a report and recommendation finding Respondent guilty of the following charged specification: 1) Said officer, on or about June 11, 2013 failed to efficiently perform his duties and compromised the safety and security of the facility and on his post, in that at approximately 0620 hours, while assigned as the B Post officer during closed, his head tilted backwards towards the ceiling with his arms to his sides, sleeping and/or failing to remain consistently alert, while on duty supervision an inmate. Based on my review of the aforementioned factual information, including but not limited to the Report and Recommendation from OATH, the information provided by the Trials and Litigation Division and the Fogel letter dated June 3, 2014 submitted on behalf of Respondent by counsel, I adopt ALJ Richard's factual findings and conclusions and reject the recommended penalty as to Correction Officer Angel Aquino. Respondent's failure to remain attentive while assigned to guard an inmate in the hospital prison ward is a breach of the core mission of care, custody and control of all inmates under the Department's supervision. The Department of Correction consistently applies a standard penalty of ten (10) days suspension to this specific behavior where no major aggravating or

12 mitigating factors require a deviation from that standard. This case presents no reason to upset that procedure. Based on the record in this matter, ALJ Richard's findings of fact are hereby accepted and her penalty recommendation of eight (8) suspension is rejected. The record clearly established that C.O. Aquino was sleeping and/or failing to remain alert while supervising an inmate. The appropriate penalty to address the seriousness of C.O. Aquino's misconduct is ten (10) days suspension. Joseph Ponte, Commissioner March 8, 2016

13 THE CITY OF NEW YORK CITY CIVIL SERVICE COMMISSION In the Matter of the Appeal of ANGEL AQUINO Appellant -against- DEPARTMENT OF CORRECTION- DOC Respondent Pursuant to Section 76 of the New York State Civil Service Law CSC Index No: DECISION ANGEL AQUINO ("Appellant") appealed from a determination of the Department of Correction - DOC finding Appellant guilty of incompetency and/or misconduct and imposing a penalty of Suspension following disciplinary proceedings conducted pursuant to Civil Service Law Section 75. The Civil Service Commission ("Commission") heard arguments from the parties on 07/07/2016. The Commission has considered the arguments presented on this appeal, and reviewed the record of the disciplinary proceeding. Based on this review, the Commission concludes that there is sufficient evidence in the record to support the findings of fact and the conclusions of law, and that the penalty is appropriate. Therefore, the final decision and penalty imposed are hereby affirmed. SO ORDERED Dated: 08/04/16