Khan v. Police Dep’t
OATH Index No. 2025/05 (Oct. 3, 2005)
Name clearing hearing for a former probationary police officer
who was terminated for allegedly assaulting his girlfriend.
Petitioner, as the discharged employee, bore the burden of proof.
Judge found petitioner refuted the basis for his termination by a
preponderance of the credible evidence.
___________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
SHAZAD KHAN
Petitioner
- against POLICE DEPARTMENT
Respondent
___________________________________________________
REPORT AND RECOMMENDATION
KARA J. MILLER, Administrative Law Judge
Pursuant to the February 10, 2004 and July 14, 2005 orders of the Appellate Division,
First Department in Khan v. Kelly, Index No. 116180/03 (ALJ Exs. 1, 2), the above captioned
matter was referred to this tribunal for a name clearing hearing.
The sole purpose of this hearing is to give petitioner an opportunity to clear his name.
This tribunal lacks authority to recommend reinstatement. Therefore, even if this proceeding
were to result in petitioner's name being cleared, the Department is free to deny him future
employment for other reasons. See Bd. of Regents v. Roth, 408 U.S. 564, 573, n.12, 92 S. Ct.
2701, 2707, n.12 (1972); Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882 (1977); Hill v. Edelman, 92
Misc. 2d 485, 401 N.Y.S.2d 697 (Sup. Ct. Albany Co. 1977); Matter of Napoleoni, OATH Index
No. 1520/02 (Nov. 8, 2002).
Petitioner, a former probationary police officer, had been terminated for allegedly
assaulting his former girlfriend.
A name clearing hearing was conducted before me on
-2September 22, 2005. After evaluating the record before me and assessing the credibility of the
witnesses, I find that petitioner refuted the validity of the grounds for his dismissal.
ANALYSIS
Petitioner Shazad Khan, was appointed to the Department as a police officer in July 2001.
While he was still on probation and attending the Police Academy, respondent's former girlfriend
called 911 and filed a criminal complaint against him for assault.
He was subsequently
terminated without a hearing (Tr. 9).
Petitioner had met Dunandenie Tricia Bhehaspat ("Tricia") on August 5, 1997 at a
friend's wedding. The two dated each other for approximately four years. To celebrate being
together for four years, Tricia arranged an anniversary dinner for August 3, 2001, but petitioner
did not show up. Tricia was very upset that she had been stood up and suspected that petitioner
was cheating on her. She telephoned him at his home several times the following morning and
throughout the day. Petitioner spoke to her during one of the early morning telephone calls and
said that he did not want to discuss the matter. He told her to stop calling because he was very
tired and was going back to sleep. Tricia was undeterred. She was very angry that he was
ignoring her, so she called him several more times during the day (Tr. 9-10, 21, 23, 33-34).
Tricia arrived at petitioner's house at approximately 5:00 p.m. on August 4, 2001.
Petitioner's father, who was annoyed by the number of telephone calls, complained to her that
she had disturbed him by repeatedly calling throughout the day. Tricia, upset by the rebuke,
asked petitioner to drive her home. While they were in the car, she yelled at petitioner for
ignoring her and accused him of cheating on her. Feeling ignored and poorly treated, Tricia
refused to get out of the car when they arrived at her home. Petitioner told her that if she did not
get out of the car, he was driving back to his house and that she would have to make other
arrangements to get home. She did not get out of the car and returned to petitioner's home with
him, berating him the entire time (Tr. 10-11, 23-24, 34-36, 45-46).
When they arrived at petitioner's house, petitioner exited the vehicle and walked to his
front door in an effort to get away from her. Tricia, who was highly agitated and frustrated with
petitioner, threw a water bottle at him. Petitioner kept walking and was closing the door to the
vestibule of the house when she pushed her way inside. She proceeded to strike him with an
-3open hand, scratching him on the face and arms. One of the blows succeeded in knocking off his
glasses. In an effort to fend off the blows, petitioner flung his arm up, pushing her backwards
and causing her to strike her head against the wall. The commotion drew the attention of
petitioner's parents, who immediately came downstairs to investigate. Petitioner's father escorted
Tricia out of the house and offered to drive her home. Instead of going home, Tricia decided to
stop somewhere else to telephone a friend to come pick her up (Tr. 11-12, 24-26, 36-37, 47-49).
As she and her friend were driving to her friend's house, they passed petitioner and a
female passenger, driving in the opposite direction. Tricia, not recognizing that the passenger
was petitioner's mother, became incensed. She called petitioner on his cell phone to question
him about "the fucking bitch in his car." Tricia wanted to teach petitioner a lesson for neglecting
her, so she proceeded to telephone 911 to report that petitioner had assaulted her. She met the
police in front of petitioner's home, where they waited for petitioner to return. Even though she
did not want to press charges, the police took petitioner to the police precinct for questioning
when he returned to his home. Tricia was interviewed by Department investigators later that
evening and alleged that petitioner had assaulted her in the vestibule of his home. She never
filed a criminal complaint and petitioner was never arrested. She subsequently attempted to
withdraw her statements by informing the police officer that she had lied about the assault (Tr.
13, 27, 37-39, 57).
Tricia was subpoenaed to appear at a hearing at the Department's trial room on April 15,
2003, to determine petitioner's future employment with the Department.
The hearing was
adjourned and ultimately cancelled. Tricia, however, was intent on setting the record straight.
When she was unable to testify at the hearing, she sent a letter to the Police Commissioner in
which she recanted her earlier statements accusing petitioner of assault (Pet. Ex. 1). The letter
explains that petitioner never intentionally tried to harm her and that she had actually been the
aggressor by attacking him. The letter further states that petitioner accidentally hit her as he was
fending off her blows.
Despite Tricia's attempts to withdraw her accusatory statements,
petitioner was subsequently terminated without a hearing. Petitioner appealed his termination
and Tricia filed a sworn statement in support of his appeal, recanting her allegations of assault
(Pet. Ex. 2). The Appellate Division granted petitioner's appeal and ordered that a name clearing
hearing be held (Tr. 15-16, 39-42, 55).
-4A name clearing hearing is an opportunity for the discharged governmental employee to
refute the charges made by his employer. The burden of proof lies with the person seeking to
refute the charges made against him. See Marzullo v. Suffolk County, 97 A.D.2d 789, 468
N.Y.S.2d 530, 531 (2d Dep't 1983); Bergstein v. Bd. of Educ., 34 N.Y.2d 318, 357 N.Y.S.2d 465
(1974); Fluker v. Alabama State Bd. of Educ., 441 F.2d. 201 (5th Cir. 1971); Matter of
Napoleoni, OATH Index No. 1520/02 (Nov. 8, 2002); Matter of Johnson, OATH Index No.
409/84 (Feb. 25, 1985). Therefore, petitioner Khan must prove that the misconduct that led to
his termination did not occur.
Respondent argued that Tricia's recantation was not credible, claiming that she only
wanted to help her former boyfriend.
The Department contended that the 911 call and the
statement made to the police officer afterwards were contemporaneous to the actual event and
therefore should be given more credence than her recantation (Resp. Exs. A1, A2). See Police
Dep't v. Ortiz, OATH Index No. 1589/00 (Feb. 15, 2001). It is not unusual for a recantation by a
victim of domestic abuse to be found suspect with the change of heart being attributed to fear or
a misguided devotion to the abuser. See Douglas v. Constantine, 151 A.D.2d 811, 514 N.Y.S.2d
400 (3rd Dep't 1989); Dep't of Correction v. Vinson, OATH Index No. 816/96 (Mar. 27, 1996),
modified on penalty, Comm'r Dec. (Oct. 25, 1996); Transit Auth. v. Rhodes, OATH Index No.
205/93 (Oct. 5, 1992); Police Dep't v. Pena, OATH Index No. 692/90 (May 4, 1990). When
examining the reliability of a recanted statement in such instances, it is necessary to analyze the
credibility of the initial statement by reviewing testimony or statements of corroborating
witnesses, police reports and observations, medical reports, the nature and extent of the injuries,
and the testimony of the person recanting. See Pocengal v. Crabb, 154 A.D.2d 772, 546
N.Y.S.2d 225 (3rd Dep't 1989); Douglas v. Constantine, 151 A.D.2d 811, 514 N.Y.S.2d 400 (3rd
Dep't 1989).
In the present case, petitioner and Tricia are no longer dating.
They ended their
relationship after this incident, over four years ago, and have not spoken to one another since
August 4, 2001. They currently lead completely separate lives. Tricia is a college graduate and
currently works in the Brooklyn District Attorney's office. She is not dependent upon petitioner
financially or emotionally. Neither petitioner nor Tricia intends to renew their relationship (Tr.
44).
-5Tricia's original version of the events can not be corroborated. There were no eye
witnesses to the event itself nor were there any police statements regarding her injuries after the
fact. Although she claimed to have a bump on her head during the 911 call, there was no
evidence of any physical injury resulting from the alleged assault. Indeed, after claiming that
petitioner took her head and banged it against the wall and threw her down on the ground and
kicked her, the 911 Operator asked her if she needed an ambulance. She responded, "No. I'm
okay but I have a bump on my head." (Resp. Exs. A1, A2). Even assuming that Tricia did have a
bump on her head, this minor injury would be indicative of petitioner flinging his arm upwards
in an attempt to ward off Tricia's attack and her falling backwards against the wall. It does not
corroborate the type of violent attack Tricia first reported to the Department.
Respondent tried to rebut Tricia's testimony, her recantation letter and her affidavit in
support of petitioner's appeal by submitting a recording of the 911 call (Resp. Exs. A1, A2). The
Department argued that Tricia sounded upset and that the 911 call should be construed as an
excited utterance.
To the contrary, Tricia sounded quite composed during the emergency
telephone call. She appeared annoyed and angry, but she did not sound emotional, distressed or
frightened. When the 911 operator informed her that police were on the way, she asked if there
was anything that they could do about the situation (Resp. Exs. A1, A2). It seemed as though her
motivation was to punish petitioner rather than a genuine cry for help. Moreover, the triggering
event leading to the 911 call was not the alleged assault, but her observation of another woman in
petitioner's car.
Finally, and most importantly, I found Tricia's testimony to be extremely credible. She
was remorseful and contrite. She appeared sincere in wanting to set the record straight. She
frankly acknowledged that she had made false accusations against petitioner during the 911 call
and in her statement to responding police officers. Tricia appeared determined to rectify her
rash, emotionally charged overreaction. During the hearing she did not sound frightened of
petitioner, nor did she seem to be under any duress to testify on his behalf. Although Tricia
became emotional at various points while testifying, she acknowledged that her tears were a
result of her embarrassment for acting like a jealous, scorned woman.
testimony was credibly corroborated by petitioner's version of the incident.
Additionally, her
-6I find that petitioner did not physically assault Tricia as she originally alleged. Instead,
she had exaggerated and embellished the actual events in an effort to punish petitioner for
refusing to discuss their relationship and for her suspicion that petitioner was cheating on her
with another woman.
This was nothing more than the fury of a woman scorned.
The
unfortunate consequence of her irresponsible and extreme behavior was to cause petitioner to
lose his job and prevent him from finding similar employment in law enforcement. The one
redeeming component in this situation is that Tricia had the courage and character to tell the truth
in an effort to rectify the injustice wrought by her emotionally charged attempt to lash out at
someone who hurt her feelings.
RECOMMENDATION
I recommend petitioner's name be cleared.
Kara J. Miller
Administrative Law Judge
October 3, 2005
SUBMITTED TO:
RAYMOND W. KELLY
Commissioner
APPEARANCES:
CARROLL & FRIESS
Attorneys for Petitioner
BY: ROSEMARY CARROLL, ESQ.
PAUL GALLAGHER, ESQ.
Attorney for Respondent