PSYCHOLOGICAL DISQUALIFICATION
Government job applicants can be disqualified from employment for various reasons, including character (honesty and trustworthiness), medical (physical) and psychological (mental). Of all these, psychological disqualifications are the most challenging, and unfortunately, they also can be the most damaging to your future employment if not handled correctly. A psychological disqualification has the real potential to ruin your job opportunities.
Also unfortunate is the rate of psychological disqualification. As example, one New York law enforcement agency has reported that over a 14 year period it psychologically disqualified 27% of all job candidates who were evaluated. So for every 1,000 candidates, 270 were psychologically rejected. But that only is the average rate over 14 years; for 7 of those years the disqualification rate was 30%-34%.
Appealing a psychological disqualification involves a psychological or psychiatric expert witness who provides an opinion about your mental suitability for employment. Commonly, the opinion also highlights any disagreement that the expert has with the agency disqualification.
It is very important that the psychological expert have sufficient experience in the field of related disqualifications. As example, if you are a police candidate then you should obtain the services of a psychologist who has experience with police psychological disqualification appeals.
You also should consult with an attorney who is knowledgeable about your kind of case. Many legal issues arise in the preparation of appeals, and it is very unlikely that you or your psychologist will be able to deal with these properly. The best representation for you will occur when an experienced lawyer and psychologist work together.
PSYCHOLOGICAL REVIEW,
MEDICAL REVIEW &
CHARACTER REVIEW
PSYCHOLOGICAL HOLD,
MEDICAL HOLD &
CHARACTER HOLD
Government employment candidates frequently are told that they are on "review" or "hold." Sometimes this occurs because the agency must gather more information about you before making a hiring decision. However, in many cases review and hold are just excuses to avoid giving any decision. This can happen when the agency does not wish to hire you, but also does not have a very strong reason to disqualify you.
Instead of issuing a disqualification which you can appeal---an appeal which you might win---the agency puts you on review. While on review, your Eligible List gets closer to expiring with each passing day, but you cannot appeal because there is no decision to appeal. In other words, you are left waiting until the Eligible List expires, after which time you cannot be hired.
This is a very abusive government practice, and it destroys your right to use the disqualification appeal process. Most unfortunate is that, by the time some candidates realize what has been done to them, it is too late to get legal help.
You should be in contact monthly with your investigator so that you are up-to-date about your employment application status. If you are told that you are on review or hold, then do not wait more than three months before seeking legal advice. With enough time remaining on the Eligible List, we may well be able to help you get off review or hold. Our office has done this many times for many job candidates.
NOTICE OF PROPOSED DISQUALIFICATION
& NOTICE OF DISQUALIFICATION
For many years, when a New York City agency wanted to disqualify you from employment, it would issue a "Notice of Disqualification" which could be appealed to the Civil Service Commission. However, this procedure was not correct under the Civil Service Law, which requires that candidates be told in advance why they are going to be disqualified, and be offered an opportunity to argue against a disqualification before it becomes final.
The Civil Service Commission advised agencies some years ago that they were not following the law, and the result is the "Notice of Proposed Disqualification" (NOPD). It notifies you that you have 30 days to ask the agency to "reconsider" the proposal to disqualify. Only after receiving your reconsideration appeal and supporting evidence will the agency then issue you a final decision; usually a Notice of Disqualification.
In practice, all that has changed is that most of what you previously had to do when appealing a Notice of Disqualification, now is done when you receive an NOPD Instead of appealing a disqualification to the Civil Service Commission, now a reconsideration appeal is sent to the agency first, and after final disqualification you appeal to the Civil Service Commission.
Nevertheless, while only a minor change in procedure has occurred, there is an important consequence. If you wait until the NOPD process is over before contacting an attorney, you may have hurt your appeal seriously. This is because all supporting papers and other evidence must be given to the agency during the NOPD process. Once the agency issues a final disqualification, the "administrative record" is closed, and further evidence that later you might want to submit to the Civil Service Commission can be ruled "inadmissible." So if you do not put your best foot forward during the NOPD process---using all legal resources available---then the case could be defective when it goes to the Commission.
Experience has shown that good attorneys almost always can make a case better and stronger if consulted early enough. You may understand some of the good evidence in your case, and medical experts should be able to identify relevant medical issues. But almost always, you will overlook helpful legal points, or worse, you will use evidence that actually hurts your case. Also, you might assume that your case is "good enough" to win, and decide that you will call a lawyer only if you lose the NOPD appeal. But by then, the damage already has been done. The best course is to contact counsel immediately upon receiving a Notice of Proposed Disqualification, or any other negative notice from an agency.
RIGHT TO OBTAIN PSYCHOLOGICAL FILE
If you are a New York government employment candidate who was disqualified for medical reasons, the New York Public Health Law provides that you have the right to obtain a copy of your medical file from the government agency. As example, a Police Officer candidate denied employment for psychological reasons has the right to get a copy of his psychological file.
Unfortunately, most agencies violate this law and refuse to release file copies to candidates. Usually the file is released only to a doctor who is assisting the candidate with a disqualification appeal, and the government directs the appeal doctor not to give the file to anyone else. That direction is wrong, but many doctors are scared by the warning and will not release the file to the candidate or even the candidate’s lawyer.
Nonetheless, the law is clear and it has been upheld in court. Disqualified candidates have the right to obtain a copy of their medical file, and they can enforce that right by going to court.
PSYCHOLOGICAL INTERVIEW PREPARATION &
PSYCHOLOGICAL EVALUATION PREPARATION
Almost all police and public safety agencies will screen you for psychological suitability, and usually this involves three steps. First, questions about personal history. Second, psychometric tests (including the MMPI-2-RF and Cornell Index) and questionnaires. And third, a psychological interview; sometimes more than one.
You can make serious mistakes at all levels. With psychometric testing, the usual mistake is answering questions in a way that you believe will make you look better. But since the tests are geared to measure such "faking good," the result is a test score which hurts you. So the best advice regarding these tests simply is to answer all questions honestly.
However, far more important than test scores is your performance during the psychological interview. The interview is the culmination of the entire psychological evaluation process, and if you do poorly, then your fate is sealed. No amount of good personal history or test scores will compensate for a bad interview. Unfortunately, few candidates know how to present themselves well, and very often make significant errors that lead to disqualification.
Since candidates usually have no experience with psychological interviews, the failure rate is not surprising. And in New York City, the failure rate is higher than the national average. This means that the chance of psychological disqualification is greater than most other places, and many candidates who never imagine that they will be disqualified receive a nasty surprise in the mailbox.
Keep in mind, you do not need to have a mental illness to be disqualified, and disqualified candidates usually have no mental condition at all. What they almost always have in common is that they did badly during the interview.
The good news is that you can be well prepared for a psychological interview, but only if you are counseled by someone who understands the process---such as an attorney with many years experience in psychological disqualification cases. Just like taking an S.A.T. prep course, or a class that teaches job interview skills, you can learn how to handle a psychological interview also. Some candidates who received counseling later remarked about how easy the psychological interview seemed, and how difficult it would have been without preparation.
Do not "cast your fate to the wind" and pray for a good outcome. Maximize your chances of success by being prepared for the psychological evaluation.
HOW TO CHOOSE YOUR ATTORNEY
A case from some time ago highlights the importance of your selecting legal counsel very carefully.
The client had employed an attorney for representation on a police disqualification appeal. There were four reasons given for the disqualification, but the attorney mistakenly filed appeal papers with the civil service commission addressing only three. The fourth basis for disqualification was overlooked.
The commission considered the case, and reversed the three disqualification reasons appealed. However, since the fourth reason was not raised, the commission affirmed the disqualification on that single basis. Upon realizing his mistake, the attorney submitted an additional appeal to the commission, but it was too late, and the commission refused to re-open the matter. Thus, the client lost an almost certainly winning appeal merely because his lawyer was not careful.
While a situation like this seems incredible, unfortunately, it happens more than most people are aware. Many clients choose counsel on the basis of advertising alone, or even worse, price. Regret commonly is the result.
Legal services are like all others: You get what you pay for. Experienced lawyers with proven records of success charge more for their work, just as experienced doctors earn more than interns. You need to keep this in mind when retaining an attorney.
HOW YOU CAN USE AN ARTICLE 78
The New York Civil Practice Law and Rules (CPLR) gives you the right to sue a government agency for various reasons, and many cases involve Article 78 of the CPLR.
An Article 78 proceeding is used, among other reasons, when you want to challenge a government agency decision, or force an agency to do something. As example, when an agency issues a bad decision about you, usually it can be challenged in court under Article 78. Or, the agency might be refusing to issue a decision at all. To force the agency to act, you can use an Article 78 proceeding.
However, you must use all available agency procedures before filing an Article 78. This means that any internal agency appeals, or other available appeals, must be used before going to court. If those procedures are not used, then you lose the right to file an Article 78.
Also, you must usually file the Article 78 proceeding within four months of the final agency determination. This means that once the agency has made its final decision about you, an Article 78 must be filed within four months of the date of that decision.
The four month period is not 120 days, as many attorneys (and even some judges) mistakenly believe. Four months means the same day in the month four months later. As example, if the government notice is dated June 5th, then the four month Article 78 filing deadline is October 5th, not 120 days later on October 3rd. If the deadline month does not have the same numbered last day as the date of the government notice, then the deadline is the last day of the deadline month. As example, if the government notice is dated the last day of December, December 31st, then the Article 78 deadline is April 30th, because April does not have 31 days.
Additionally, if the deadline date falls on a weekend or legal holiday, the deadline is extended to the next business day. As example, if the deadline falls on a Saturday or Sunday, the deadline becomes Monday, unless Monday is a legal holiday, in which case the deadline becomes Tuesday.
Whatever the deadline date, as you can see, the Article 78 filing period only is a few months, and if your case is not filed by the deadline then usually you lose the right to go to court. This is called being "time barred." So it is very important that you contact an attorney as soon as you receive any unfavorable decision from an agency, or as soon as you realize that the agency is refusing to give you a decision. This is so you can find out if any agency appeals must be used, and also to make sure that your Article 78 time deadline is not missed.
PORT AUTHORITY DISQUALIFICATION
Employment disqualifications from city and state agencies in New York routinely are appealed to various civil service commissions. However, disqualifications from public authorities, like the Port Authority of New York & New Jersey, are not covered by the Civil Service Law, and so cannot be appealed. This is because the Port Authority is not an agency of either New York or New Jersey, but an entirely separate entity created by agreement between both states.
The Port Authority acts, essentially, like an independent government, and has vast powers normally exercised only by a state. It is for this reason that such public authorities commonly are referred to as "shadow governments," and the laws which apply to city and state agencies often do not apply to authorities. The result is that job disqualifications from the Port Authority ordinarily cannot be successfully challenged. The only exception is perhaps a rare case of civil rights violation, where a Federal lawsuit might be filed.
However, while Port Authority employment disqualifications usually cannot be challenged, the candidate still has a right to obtain the reasons for the disqualification, which are contained in the Authority’s employment investigation file. As example, a candidate disqualified for psychological reasons has a right to obtain a copy of the psychological file. A demand for the file must be made, and if the Authority refuses to release the file, an Article 78 court proceeding can be used to compel release.
Candidates interested in obtaining such files should contact an attorney as soon as the candidate receives notice of a Port Authority disqualification.
NEW YORK GUN ARREST
HANDGUN ARREST
ASSAULT WEAPON ARREST
KNIFE ARREST
AIRPORT ARREST
New York weapon laws are different from most other places, and the gun laws truly are terrifying. Your mere possession of a loaded handgun, with no criminal intent at all, results in a mandatory 5-15 year prison sentence upon conviction. Further, almost every case of unlicensed handgun possession now is a felony offense, including possession in the home which formerly only was a misdemeanor.
This is true also for rifle and shotgun possession, particularly if your gun meets the definition of an "assault weapon." Many rifles and shotguns which are legal most everywhere else are considered assault weapons in New York, and the same mandatory sentence applies as with handguns. Additionally, gun magazines are included in the felony category if they can hold more than 10 rounds of ammunition.
Knives too are criminalized in New York, and the knife statute is so vague that carrying almost any knife is chargeable as a crime. In New York City, your carrying even a simple pocket knife can result in arrest.
If you are unaware, you unknowingly can be ensnared by these laws, and many people traveling with guns at airports and by car are arrested regularly. You would be shocked by the severe penalties, and become even more shocked when facing a prosecutor determined to obtain a jail sentence, even though you were not aware of the law.
Your case will require representation by counsel experienced with New York gun and weapon laws, and who understands every argument that can be raised for you against the government. In many cases, not only can police and prosecution errors be used as a defense, but also technical issues regarding weapon specification. A defense attorney must be skilled in all these areas to give you the greatest advantage. If you are charged with violating the firearm, pistol, rifle, shotgun, assault weapon or knife laws, please contact our office immediately.
NICS FIREARM APPEALS AND
THE SAFE ACT - CERTIFICATE OF RELIEF
In 2013, the New York Secure Ammunition and Firearms Enforcement Act (SAFE Act) was created, and one part of that law changed the New York Mental Hygiene Law (MHL) to require that certain people be reported to the State. If a mental health professional believes that you are “likely to engage in conduct that would result in serious harm to self or others,” then you must be reported to the State, and once reported you lose your right to own firearms.
Also, when New York puts you into the State MHL reporting system, you will not be able to buy a gun legally, and if you go to a gun store and try to purchase a firearm, the FBI National Instant Check System (NICS) will deny the purchase.
The reporting system has been severely criticized, and rightfully, because mental health providers and hospitals routinely report people who are not a threat to anyone. Doctors and hospitals are frightened that if a person they treat later harms themself or another person, then the doctor or hospital will be blamed for not reporting. And so, people are being reported, and are losing their gun rights, even when they are not dangerous.
The only way to restore your rights is by getting a Certificate of Relief from Disabilities. When that Certificate is issued by New York, FBI NICS then no longer should deny gun purchases. However, the Certificate of Relief process has many steps, and must be completed carefully so that you can have the greatest chance of getting back your rights.
NEW YORK ASSAULT WEAPON LAW BOOK
Mr. Levine's latest book, New York Assault Weapon Laws, has been published by LawTech Publications Company and now is available for purchase. The book contains detailed analysis of the New York assault weapon law, various local assault weapon codes, gun-related terminology, and is heavily illustrated with many photographs. It is a must-have resource for persons interested in this very complex and confusing legal subject.
The book can be purchased by using the order form below, or by telephoning LawTech Publications at 212-482-8830. The cost is $49.95 which includes tax and shipping.
An online review of the book by TheGunMag.com can be viewed at:
http://www.thegunmag.com/real-skinny-new-yorks-vaunted-assault-weapons-laws/
NEW YORK OPMC ATTORNEY
NEW YORK OPD ATTORNEY
MEDICAL LICENSE DEFENSE
MEDICAL LICENSE RESTORATION
PROFESSIONAL LICENSE DEFENSE
PROFESSIONAL LICENSE RESTORATION
Professional misconduct proceedings have become an ever-larger area of legal involvement in recent years. With the increased level of regulation in the medical and other professions, it was inevitable that government agencies responsible for overseeing professional conduct would initiate more regulatory actions. The results largely have been unwelcome in the professional community, for while a few dangerous actors have been removed from the scene, others who have engaged in relatively minuscule acts of misconduct---some unintentionally---have had the full weight of the government fall upon them.
It is most important that affected professionals seek guidance without delay from a professional misconduct attorney in any matters involving OPMC (Office of Professional Medical Conduct) or OPD (Office of Professional Discipline). Misconduct allegations frequently balloon into full-blown investigations, and this activity can be tremendously injurious to the operation of a professional practice. Government investigators rarely are concerned with the business interests of professionals, and will pursue misconduct cases with relentless tenacity. Any who doubt this need only ask a professional who has been the target of such an investigation.
Competent attorneys are available to help medical and other professionals in OPMC and OPD cases, but they are of use only when consulted, and are of most use when consulted early in the process.
RECENT DECISIONS FROM OATH
The following are summaries of recent decisions of the Administrative Law Judges at the New York City Office of Administrative Trials and Hearings.
(Note: These are not cases involving clients of Mr. Levine.)
LICENSING
The Department of Consumer Affairs ("DCA") brought a license revocation proceeding against respondents, affiliated car dealers, alleging that they engaged in deceptive and illegal practices designed to profit from low-income and non-English speaking consumers, while saddling them with overpriced loans and defective cars. DCA sought license revocation and over $30 million in fines. Following a 21-day trial ALJ Zorgniotti sustained some of the charged violations and dismissed others. A civil penalty of $3,164,875 was imposed. ALJ Zorgniotti did not find that the individual respondents were unfit or that respondents' licenses should be revoked, finding mitigation in respondents' willingness to pay restitution to harmed consumers and the efforts they have made to reform their business practices. (Dep't of Consumer Affairs v. Major World, OATH Index No. 1897/17.)
Respondent, a professional engineer and special inspector, was charged with making false statements to the Department of Buildings ("DOB"), assuming responsibility for special inspections without qualifications, and failing to maintain and produce records as directed. Respondent admitted that he submitted forms to DOB which falsely certified that he completed welding special inspections even though he was not qualified to do so and the inspections were performed by a subcontractor. Respondent also failed to maintain and produce requested records of special inspections for excavation, site storm drainage, masonry and soil site preparation. Noting that DOB depends upon special inspectors to ensure safety at construction sites, ALJ Kevin F. Casey recommended revocation of respondent's filing privileges and disqualification from performing special inspections. (Dep't of Buildings v. Thomas, OATH Index No. 1898/18.)
PERSONNEL
Petitioner sought to terminate the employment of a captain for medical incompetence under section 75 of the Civil Service Law due to excessive use of sick leave based upon job-related injuries. The captain contended that the disciplinary charges should be dismissed and that the case should be converted to a disability proceeding under section 71 of the Civil Service Law. Section 71 provides that where an employee has been separated from the service because of a disability arising from an assault sustained in her employment, she shall be entitled to a leave of absence for at least two years, unless her disability was permanently incapacitating. Here, the captain had been absent from work for less than two years. Moreover, she had filed for permanent disability retirement. ALJ Lewis concluded that section 71 leave was not an available option and that petitioner could proceed under section 75. The proof showed that the captain used almost 300 sick days over a 21 month period, which was sufficient to establish an excessive use of sick leave. ALJ Lewis sustained the charges and recommended termination of employment. (Dep't of Correction v. Knupp, OATH Index No. 1774/18.)
A city planner was charged with multiple instances of insubordination, incompetence, and calling 911 to have police respond to an incident with her supervisor. ALJ John B. Spooner sustained most of the insubordination charges and the incompetence charge. During a four- month period the planner failed to complete three successive assignments, although she was provided with several weeks to do so. As to the 911 call, ALJ Spooner credited the supervisor's account that she unplugged the employee's earphones without touching her and that this provided no justification for the worker to summon the police. Termination of employment was recommended. (Dep't of City Planning v. Kelly, OATH Index No. 516/19.)
A claims specialist was charged with three instances of discourtesy and threatening co-workers. ALJ Noel R. Garcia sustained two discourtesy charges because the specialist admitted that she had made the insulting remarks. He dismissed the threat charges because petitioner offered only an uncorroborated hearsay account from a supervisor, and the specialist denied that she engaged in threatening behavior. ALJ Garcia recommended dismissal of charges relating to another incident where there were material inconsistencies between the co-worker’s testimony and her prior statements. For the misconduct proven, a ten-day suspension without pay was recommended. (Law Dep't v. Moore, OATH Index No. 498/19.)
VEHICLE RETENTION
Petitioner, the Police Department, sought to retain a car that it had seized in connection with the driver's arrest for criminal possession of a weapon and criminal possession of marijuana. The weapon, along with marijuana packaged in plastic wrap, was discovered by the arresting officer when she searched the trunk of the car. The driver was later indicted on multiple felony and misdemeanor counts of criminal possession of a weapon. However, he was not indicted for criminal possession of marijuana, a crime, but only unlawful possession of marijuana, a violation. In order to retain a car until a civil forfeiture action is completed, petitioner must prove that it had probable cause for the arrest, that it is likely to prevail in the forfeiture action, and that it is necessary to keep the car until final judgment in the forfeiture action. ALJ Faye Lewis found that the petitioner did not prove that it had probable cause for the arrest because the officer did not have probable cause to search the trunk. The statement in the arrest and complaint reports that the arresting officer smelled marijuana emanating from the car, without more, was insufficient to give rise to probable cause to search the trunk. The defendant's indictment does not by itself establish probable cause to arrest in a vehicle retention hearing. Release of the car to its owner was ordered. (Police Dep't v. Arthurs, OATH Index No. 1261/19.)
WEAPONS EVIDENCE SUPPRESSED
AFTER ILLEGAL POLICE SEARCH
A man whose car was stopped by Police in Westchester County, New York, was found in possession of various weapons and was arrested. The weapons were seized when, upon learning that the man had a Colorado concealed handgun license, Police wrongly assumed that the existence of the license justified searching the vehicle. A Westchester County Court Judge has suppressed all evidence seized from the vehicle, meaning that the weapons cannot be used as evidence against the Defendant. The ruling effectively kills the prosecution case.
The Decision and Order can be read at the following site:
https://www.scribd.com/document/395819281/People-v-Jonathan-Rose-Ind-No-17-0750-Decision-and-Order
A BRIEF HISTORY OF
NYPD GUN LICENSE CORRUPTION
The recent Federal trial of NYPD Deputy Inspector James Grant, and businessman Jeremy Reichberg, on charges including that Reichberg paid bribes to Grant in exchange for pistol licenses, only is another chapter in a long-running Police scandal. The jury found Grant not guilty of taking Reichberg’s bribes, but found Reichberg guilty of bribing other Police. That win for Grant still left a stain on the NYPD, and as New York Post editorial writer Eric Sanders has noted, “Acquittal or no, the NYPD has shown it can be bought.”
This is a problem with gun licensing that has existed for decades, and the history needs to be understood.
There were no handgun restrictions in New York until the 1911 Sullivan Act, when the carrying and ownership of handguns became licensed. In New York City, licenses are issued by the Police Commissioner through the NYPD License Division, and if the License Division does not believe that an applicant is worthy, it has virtually unlimited authority to deny a license application.
Such a system, in theory, can be enforced fairly, but in reality it is not. Not only is the system Byzantine — the current application form, without supporting documentation, can be more than 20 pages — decisions about carry licenses have been unfair for decades. Many news articles have reported the names of the rich, famous and well-connected who received carry licenses, while average citizens usually could not.
This discretionary scheme invites bias and corruption, and the Sullivan Act was criticized at inception for really being intended to prevent Italian immigrants from getting guns, and for giving special treatment to certain persons. It is no surprise that such a system led to favoritism and bribery, and what follows here is just a partial list of wrongdoing:
1970: Police Officer Frank Serpico revealed widespread NYPD corruption, which led to the formation of the Knapp Commission. Among other things, the Commission heard reports that Police were bribed for pistol licenses. In response, NYPD moved licensing from the precincts to Police Headquarters, perhaps believing that the agency could keep a better eye on things under one roof. What was created instead was a convenient one-stop-shop for corruption.
1973: Captain Salvatore Salmieri was suspended without pay for issuing a pistol license to Joseph Sternfeld, the driver of gangster Thomas Eboli, and for lying about the matter. Eboli was the leader of the Genovese crime family for many years, until he was murdered in 1972.
1973: Police Officer Jack Werner was indicted for receiving bribes to “expedite and facilitate” the issuance of pistol permits.
1975: Acting on earlier reports to the Knapp Commission, Special Prosecutor Maurice Nadjari presented evidence to a grand jury that Police Officers and their superiors had received bribes for pistol licenses. Over 100 people were subpoenaed, and the proceeding was interesting, at one point featuring testimony from a stripper who used the stage name “Little Egypt.” However, Nadjari had limited success, and some of the likely guilty parties walked away untouched.
1996: Deputy Inspector Charles Luisi allegedly got hundreds of thousands of dollars in gifts from a gun dealer believed to have ties to the highest levels of the NYPD. State and Federal prosecutors investigated, but whether Luisi exerted influence over gun licenses never was answered publicly. The Department Internal Affairs Bureau failed to file disciplinary charges against Luisi before he retired, but in a later court trial between the gun dealer and his wife, the wife alleged, among other things, that her husband had used his NYPD connections to have her held against her will in a hotel room for three days by Detectives. Luisi was called to testify, but he took the Fifth.
1997: Deputy Inspector Henry Krantz was accused of corruption and his License Division office was raided by IAB. Departmental charges were filed, including that Krantz had given “preferential treatment to individuals or entities” and had been “wrongfully directing” other Officers to grant favors.
Krantz signed a plea agreement, under which he paid a $10,000 fine, was demoted to Captain and was allowed to retire. Even that disposition perhaps was favoritism, because some believed Krantz was not prosecuted to avoid his telling all that he knew. Others involved were transferred to different duties.
2002: Deputy Inspector Benjamin Petrofsky was accused of giving favored treatment to Aerosmith band members who applied for pistol licenses. Petrofsky allegedly did this for VIP treatment at an Aerosmith concert, and a limousine ride to the after-party. Among other things, Petrofsky was accused of personally going to Madison Square Garden to fingerprint the band members for their license applications.
The Manhattan District Attorney examined whether Petrofsky got “illegal benefits.” Ultimately, he was demoted to Captain and placed on Dismissal Probation.
2016 to Present: The Mother-of-All gun license scandals begins when Federal investigators, probing supporters of Mayor Bill DeBlasio, uncover a bribery extravaganza.
Federal prosecutors charged businessman Alex Lichtenstein with bribery after he, essentially, bought carry licenses for cash. He reportedly bragged that he got 150 licenses, charging his clients $18,000 apiece, which if accurate would total $270,000. One license recipient had a record including domestic violence complaints and “a threat against someone’s life.”
Lichtenstein pled guilty in 2016, and admitted bribing NYPD Sergeant David Villanueva of the License Division. Lichtenstein was sentenced to 32 months in prison.
Sgt. Villanueva pled guilty in 2017 to charges that he accepted bribes, and awaits sentencing. He is now the star witness for Federal prosecutors, and his testimony has advanced numerous corruption cases.
One case was the 2018 trial and conviction of former Brooklyn Assistant District Attorney John Chambers. Chambers, who for years billed himself as the top gun license attorney in New York, was convicted in Federal Court of bribery and other charges. He was sentenced to 1 year in prison.
In addition to Sgt. Villanueva’s guilty plea, and D.I. Grant’s recent Federal trial, former Lieutenant Paul Dean, who pled guilty in 2018 to conspiracy to commit bribery, was sentenced in 2019 to 18 months in prison, a $7,500 fine, and was required to forfeit a $1,000 bribe he received.
In his pre-sentencing memo to the Court, Dean claimed to have knowledge of vast pistol license corruption involving numerous persons, as well as a scheme extending the corruption operation into neighboring Nassau County. As alleged by Dean, essentially, Sgt. Salvatore Mistretta, the former commanding officer of the Nassau County Police Department, Pistol License Section, would grant licensing favors in exchange for similar favors in New York City. No charges have been filed against anyone at the NCPD, however, Dean’s allegation at least partially was corroborated during the earlier trial of attorney John Chambers. In that case, Sgt. Villanueva testified that he used his good relationship with the Nassau licensing office to obtain favors for clients of Chambers. Villanueva also testified that Chambers sent him an email stating, “If we play our cards right, you could potentially be looking at an extra $10,000 in cash in a 12-month period just for being my consultant in Nassau County.”
Others who have been charged at NYPD include Police Officer Robert Espinel, charged with conspiracy to commit bribery and extortion, and retired Detective Gaetano Valastro, charged with conspiracy to commit bribery. Both are awaiting trial. Also, Police Officer Richard Ochetal has pled guilty to charges of bribery and conspiracy to commit bribery.
Additionally interesting is that during D.I. Grant’s trial, his attorney asked a question of Sgt. Villanueva insinuating that Police Commissioner James O’Neill, when he was the Chief of Patrol, had intervened to help a former Playboy Playmate obtain a pistol license that previously she had been denied. However, the defense attorney’s question never was answered as the prosecutor objected, and after a sidebar conference with the judge the matter was dropped.
The differences between the current scandal and most of the others are, first, criminal charges have been filed, and second, people are going to jail. The NYPD cannot merely transfer, demote or retire the employees who have committed crimes. In other words, they cannot sweep it under the rug. Not this time. This is a Federal investigation with real teeth, the truth is being exposed, and the price is being paid for what Federal prosecutor Kimberly J. Ravener has referred to as a “period of rampant corruption.”
Will it change anything? Yes, for a while. As in the past, the License Division has been administratively reorganized, and we are told that the same thing cannot happen again. The first time NYPD gave that assurance probably was around the same time the White Star Line announced that the Titanic was “practically unsinkable.” The NYPD’s assurances have been just as reliable.
In the next 10-15 years, after the dust long has settled, someone who knows someone, who knows someone else, will use those connections to grease the system again. Even though most License Division employees are not crooked and are greatly embarrassed by what their colleagues have done — the present staff is working to undo the damage — the discretionary licensing system provides very fertile soil for corruption. So no matter how many good people there are, a strong incentive for bribery always exists, and bribes will occur. That is, unless the incentive is removed, and there are two ways to do that.
The first is to end the unfair system of discretionary licensing and let people with clean records, and proper instruction, receive carry licenses. But do not hold your breath. New York would rather have endless corruption than let citizens regain their rights, because New York government hates the Second Amendment.
The other way is that the U.S. Supreme Court will decide that the bearing of arms is a right as fully protected as the keeping of arms. In 2008, the Court ruled that keeping arms was a fundamental, individual constitutional right. If the Court extends that reasoning to bearing (carrying) arms, then the discretionary licensing systems in many States will crumble. The Court probably never will rule that gun licensing, alone, is unconstitutional. But it easily can rule that a discretionary system denies Second Amendment rights to many citizens, and thus violates the Constitution.
Until one of these remedies occurs, we need only count the days until the next gun license bribery scandal.
NOTICE TO POTENTIAL CLIENTS: The Law Offices of Jerold E. Levine does not represent the following companies or their employees: Allied Van Lines, Amalgamated Bank, American Federation of Teachers, Avis Budget Group, Best Western Hotel Group, Bloomberg L.P., Citigroup/Citibank, Chubb, Delta Airlines, Enterprise Holdings (Enterprise, Alamo, National), Federal Express, First National Bank of Omaha, Google, Hertz, JP Morgan Chase, MetLife, North American Van Lines, Paramount Rx, PayPal, SimpliSafe, Starkey Hearing, Symantec, TrueCar, United Continental Airlines, Wyndam Hotel Group, YouTube.
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