Schoolcraft v. The City Of New York et al
Filing
500
DECLARATION of Alan H. Scheiner in Support re: 498 MOTION in Limine To Preclude Plaintiff From Offering Certain Evidence at Trial.. Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Christopher Broschart(Tax Id. 915354 Individually), Kurt Duncan(Shield No. 2483, Individually), Kurt Duncan(Shield No. 2483 in his official capacity), William Gough(Tax Id. 919124, Individually), William Gough(Tax Id. 919124, in his Official Capacity), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Elise Hanlon(individually), Shantel James(Shield No. 3004 in his official capacity), Shantel James(Shield No. 3004 Individually), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Theodore Lauterborn(Tax Id. 897840, Individually), Michael Marino, Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370, Individually), Frederick Sawyer(Shield No. 2576 in his official capacity), Frederick Sawyer(Shield No. 2576, Individually), The City Of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G (Under Seal), # 8 Exhibit PTX 4, 6, 13, 16, 18, 22, 25, 26, 29, 30, 33, 34, 35, 40, 42, 46, 49, 50, 51, 52, 53, 54, 55, 57, 59, 60, 62, 64, 65, 66, 72, 84, 93, 95, 306, 308, 309, 314, 316, 400, 401, 402, 403, 406, 407, 408, 409, 420, 421, 426, 427 (Under Seal), # 9 Exhibit PTX 79, # 10 Exhibit PTX 81 (Part 1 of 2), # 11 Exhibit PTX 81 (Part 2 of 2), # 12 Exhibit PTX 404, # 13 Exhibit PTX 410, # 14 Exhibit PTX 411)(Thadani, Kavin)
<![CDATA[
PTX 410
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f
Thank you.
8 74
PLAINTIFF'S
I :d..EXHIB"
1
THE COURT:
2
(Witness excused)
3
THE COURT:
Your next witness.
4
MR. MOORE:
The plaintiffs would call Deputy Chief
I tit~L)
5
II Michael Marino.
6
II
7
II
called as a witness by the Plaintiffs,
8
II
having been duly sworn, testified as follows:
MICHAEL MARINO,
THE COURT:
9
10
Thank you.
II DIRECT EXAMINATION
11
BY MR. MOORE:
12
Q.
Good morning Chief Marino?
13
A.
Good morning, sir.
14
Q.
,When did you join the NYPD?
15
A.
November 1979.
16
II Q.
So you've been a police officer for almost 34 years?
17
II A.
I'm in my 34th now, sir, correct.
18
II
And what's your current rank?
19
II A.
Deputy chief.
20
II
When were you promoted to deputy chief?
21
II A.
December of 2004.
22
II
Is it -- you agree -- withdraw that.
23
II
24
II of buying steroids?
25
Q.
Q.
Q.
In 2007 you and two dozen police officers were accused
MS. PUBLICKER:
Objection, your Honor.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Marino - direct
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1
THE COURT:
2
MS. PUBLICKER:
875
Whoa, whoa.
Objection.
He's getting into a
3
II disciplinary matter which has nothing to do with this matter.
4
II
5
II statement.
6
II discuss it, I would ask that we clear the courtroom because it
7
II
It has nothing to do with stop, question, frisk or false
It involves a medical issue.
And if we're going to
involves HIPAA issues.
8
MR. MOORE:
It's a matter of public record.
9
THE COURT:
That may be.
11
MR. MOORE:
I think it's relevant to show he was --
12
MS. GROSSMAN:
10
13
II
II
relevant.
THE COURT:
I think he can explain the relevance
II without violating the HIPAA issues.
16
17
Your Honor, could we have a sidebar
since there are HIPAA issues.
14
15
But I don't see why it's
MR. MOORE:
The relevance is to show he was accused of
II a serious infraction, disciplined.
18
THE COURT:
So what?
19
MR. MOORE:
And it didn't have any effect on his
21
THE COURT:
No.
22
MR. MOORE:
All right.
20
II
career.
23
II
24
II A.
Yes, sir,
25
II
Not going to allow that.
Where is that located?
Q.
Q.
Are you familiar with the 75th precinct?
I am.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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8 76
1
II A.
East New York in Brooklyn.
2
II Q.
What's the address of the 75 precinct?
3
II A.
1000 Sutter Avenue.
4
II Q.
Can you say it a little slower.
5
II A.
1000 Sutter Avenue.
6
II Q.
Sutter?
7
II A.
Yes,
8
II Q.
And you became the commander of the 75th precinct, did you
9
II not, on or about September of 2002, correct?
sir.
S-U-T-T-E-R.
10
II A.
That would be correct.
11
II Q.
And at that time you were a -- an inspector; is that
12
II
13
II A.
That's correct.
14
II Q.
And is it true -- is it accurate that within months of
15
II
becoming the commanding officer of the 75th precinct you
16
II
instituted a quota policy that required each officer assigned
17
II to the 75th precinct to issue ten tickets and make one arrest
18
II each month or face a low performance evaluation.
19
II
20
II A.
21
II to meet a quota, no.
correct?
Is that
accurate?
The low performance evaluations were not based upon failure
22
THE COURT:
That did not quite answer his question.
23
Was there a performance goal of -- what did you say?
24
MR. MOORE:
Quota.
25
THE COURT:
Ten what?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MR. MOORE:
2
II
II
So was there a performance goal of ten
arrest.
3
4
Ten tickets -- ten summonses and one
THE COURT:
1
8 77
summonses and one arrest?
THE WITNESS:
5
As per an administrative guide that was
6
II present at the time, I set the standards as was mandated to me
7
II
by the police department, yes.
THE COURT:
8
9
II
Were those standards ten summonses and one
arrest?
10
THE WITNESS:
11
THE COURT:
12
THE WITNESS:
13
THE COURT:
Yes.
Is that per month?
Yes.
Per month.
14
II
BY MR. MOORE:
15
II
Q.
And that was a quota, right?
16
II
A.
Okay thank you.
No.
17
THE COURT:
You call it a performance goal?
18
THE WITNESS:
19
(Continued on next page)
Yes.
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
THE COURT:
8 78
Was there any consequence if the goal
wasn't met?
2
3
THE WITNESS:
4
THE COURT:
5
THE WITNESS:
Yes, there could be.
What might that consequence be?
They could suffer a low performance
6
II evaluation for failure to perform their job.
7
II Q.
8
II
9
II A.
As a result of that, their assignment could be changed,
correct?
Yes.
As per the administrative guide procedure, that's
10
II
correct.
11
II
Q.
12
II
correct?
13
II A.
As per the administrative guide procedure, that's correct.
14
II
Q.
You don't have to add "as per the administrative guide."
15
II
If you agree with it,
16
They could, in fact, be transferred out of the command,
THE COURT:
just say yes or no.
If he wants to, that's OK with me.
17
II
18
II performance goals?
19
II A.
20
II
21
II procedure.
22
II Q.
23
II guide, you set performance goals in the 75th Precinct.
24
II that what you just testified to?
25
II A.
What
section of the administrative guide deals with setting
I don't remember the particular section and it's not in the
administrative guide anymore; it's now a patrol guide
You testified, I thought, that as per the administrative
Yes, sir.
At that time it was administrative.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
- - - - - - - - - - - - - - - - - - - - - - - - - ----------
Isn't
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879
1
II
2
II your judgment, to set performance goals in the 75th Precinct,
3
II
4
II A.
I don't know the numerical section, sir.
5
II
Is there now a section of the patrol guide that permits you
6
II to do that?
7
II A.
Yes, sir.
8
II
What is that?
9
II A.
Q.
What section of the administrative guide allows you,
in
if you can recall?
Q.
Q.
I don't know the numerical section, sir.
10
THE COURT:
11
THE WITNESS:
12
MR. MOORE:
13
Can you bring up 285?
14
THE COURT:
Is this in evidence?
15
MR. MOORE:
It is, Judge.
16
THE WITNESS:
17
THE COURT:
18
II
II
Yes,
I could.
One second, Judge.
Does it come here?
It will.
Let me know if it doesn't, but
it will I think.
19
You could find that, couldn't you?
Did it?
20
THE WITNESS:
Yes, it did.
21
II Q.
22
II City Police Department?
23
II A.
Yes, sir,
24
II
Q.
In your judgment, does this order permit you as a
25
II
commanding officer of a precinct or command to set numerical
Are you familiar with Operations Order 52 of the New York
I am.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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880
Marino - direct
1
II
2
II A.
3
II
numerical goals.
4
II
Q.
5
II
quota?
6
II A.
7
II quota.
8
II Q.
9
II performance standards?
goals for police officers?
No,
nothing in the police department authorizes us to set
Do you believe that Operations Order 52 allows you to set a
Nothing in the police department authorizes us to set a
Do you believe that Operations Order 52 allows you to set
10
II
A.
May P
11
II
Q.
Yes or no?
12
II
A.
Yes.
13
THE COURT:
Wait.
If he wants to read the document.
14
II
15
II A.
16
II wording, but I see it now.
17
II Q.
Can you direct us to that language?
18
II A.
"To provide guidance
I think he started to say, may I look at the document?
I know that it does.
19
THE COURT:
20
THE WITNESS:
I just couldn't remember the direct
Which paragraph are you in?
Paragraph 3, ma'am.
21
II A.
22
II duties department managers can and must set performance goals."
23
II
Q.
24
II
sets forth that officers who don't meet those performance goals
25
II
can have adverse employment consequences,
"To provide guidance to police officers concerning their
You're also aware,
are you not, that Operations Order 52
correct?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
II A.
I would have to read through it, sir.
THE COURT:
2
3
II Q.
8 81
Where is that?
Go to the third page.
4
THE COURT:
Paragraph?
5
MR. MOORE:
Keep scrolling down.
6
Try the fourth page.
7
II
8
II A.
Q.
Look at number 14 and number 15.
Yes,
sir.
Out loud?
THE COURT:
9
Why don't you read those?
No.
10
II
11
II A.
Yes,
12
II
Let me put the question to you again.
13
II Order 52, is it your understanding that precinct commanders or
14
II
commanders of different commands can adversely affect the
15
II
employment of officers under the command if they fail to meet
16
II the productivity standards that may be set?
17
II A.
18
II what it says, yes, sir.
19
II
Q.
20
II
they can be subject to adverse employment consequences,
21
II
correct?
22
II A.
23
II
24
25
Q.
Q.
Just to yourself.
sir.
Based on Operations
If they fail to take proper steps to correct conditions is
So that if they are not meeting the goals that are set,
If they fail to do their jobs in addressing conditions and
correcting them, yes.
THE COURT:
I think actually in 15 it says,
II to engage in proactive activity."
What is that?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
"Or fails
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1
THE WITNESS:
882
Any condition -- a different condition
2
II may take different steps.
3
II
whatever the goals are, whatever steps need to be taken to
4
II
correct a problem in the community, the officers have to take
5
II
it.
6
II
Q.
So
It could be different depending on the condition.
I am interested in whether, if a supervisor sets a
performance goal
7
Every condition is different.
are you following me so far?
8
II A.
I am, sir.
9
II
Q.
If a supervisor sets a performance goal and the officer
10
II
fails to meet that performance goal, adverse employment
11
II
consequences can be brought against that officer.
12
I am only speaking about performance goals.
OK?
13
II they fail to do that, that might subject them to adverse
14
II employment consequences, is that correct?
15
II A.
16
II
broad to accurately answer.
17
II
Q.
18
II A.
If
It's too broad of -- the statement you're making is too
You can't answer that yes or no?
No, sir.
THE COURT:
19
I thought he had about ten minutes ago.
20
II You remember a series of questions you asked about the numbers,
21
II and if not, can you do this, can you do that?
22
II
all of them.
23
II
command.
24
II remember that?
25
Could be reassigned.
He said yes to
Could have a different
Could be assigned to a different precinct.
MR. MOORE:
I do.
I am asking him about 52.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Do you
He
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1
II
883
started talking about conditions.
THE COURT:
2
I just want to make sure I remember the
3
II
4
II Q.
5
II policy within the 75th Precinct when you were the CO there,
6
II
7
II A.
That's correct.
8
II Q.
But you were accused of having done that, correct?
9
II A.
Yes,
10
II Q.
In fact,
11
II
75th Precinct, correct?
12
II
A.
Yes,
13
II
Q.
And those officers accused you of instituting a quota
14
II policy that required each officer assigned to the 75th Precinct
15
II to issue ten tickets, ten summonses, and make one arrest each
16
II month or face a low performance evaluation score, correct?
17
II A.
same thing.
It's your testimony that you did not institute a quota
correct?
I was.
a grievance was filed by several officers in the
sir.
That is correct.
THE COURT:
18
19
II
you did, in fact,
20
II
Did you not tell us a few minutes ago that
officers?
say that that was a performance goal for the
THE WITNESS:
21
It was, ma'am.
We are talking about two
22
II different times and the laws have changed since.
23
II yes, I asked them for ten summonses a month and a collar a
24
II month.
25
THE COURT:
At that time,
There was a time that you did that?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
THE WITNESS:
2
THE COURT:
3
THE WITNESS:
4
THE COURT:
5
THE WITNESS:
6
THE COURT:
7
THE WITNESS:
8
884
Yes, rna' am.
But no longer?
Yes, ma'am.
When did it change?
When the law changed.
When was that?
I believe it was 2011, if I am not
II mistaken.
THE COURT:
9
10
What law changed in 2011?
THE WITNESS:
The quota law at the time that I had the
11
II
12
II transfer an officer, discipline an officer, make him lose
13
II
overtime or suffer any loss for failure to meet solely a set
14
II
number of parking and moving violations.
15
II
just to include movers.
16
II
17
II
solely parkers and movers.
18
II
correcting the conditions in that community.
19
II
Q.
20
II
changed in 2011?
21
II A.
22
II parkers, movers, quality of life summonses, arrests, and
23
II UF-250s, yes.
24
II
25
II adversely affect an officer's employment if they didn't meet
75 stated, in sum and substance, that it would be unlawful to
Later it was changed
The things that I asked the officers for were not
Q.
It was their aggregate efforts in
You say the power for a commanding officer to do that
I believe that's when the quota law was changed to include
I believe it was 2011.
Up until 2011, precinct commanders had the power to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Page 57 of 235
885
1
II those standards or goals, correct?
2
II A.
3
II to write a specified number of parkers and movers within a time
4
II
frame,
5
II
Q.
6
II A.
Yes, as long as it wasn't based solely upon their failure
yes.
I thought you said that was what changed in 2011?
You're not asking me about 2011.
THE COURT:
7
You said prior to that.
He is saying up till then,
if the person
didn't meet those goals, they could be adversely affected.
8
THE WITNESS:
9
Yes.
10
II
Q.
11
II
officers was that officers who had previously received
12
II
competent or highly competent ratings began to receive below
13
II
competent ratings because they did not achieve the quota that
14
II you set out for them.
15
II
16
II A.
That's correct.
17
II
You recall an individual at the 75th Precinct named
18
II Christopher Whitehead?
19
II A.
Yes.
20
II
Q.
He worked at the 75th Precinct while you had these goals
21
II
in -- withdraw that.
22
II
He worked at the 75th Precinct during the time the
23
II
officers allege you were imposing a quota on them, correct?
24
II A.
Yes, he did.
25
II
He was one of the officers who received a below competent
One of the allegations that was made by the 75th Precinct
That was one of their allegations in the
arbitration, correct?
Q.
Q.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
J
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8 86
1
II
rating because he did not meet what he believed was a quota,
2
II
correct?
3
II A.
4
II
take your word for it.
5
II
Q.
6
II rating, he had a competent or a highly competent rating?
7
II A.
No,
8
II
If I say so, you will agree with me?
9
II A.
I assume you know, sir.
10
II
Thank you.
11
II
12
II Christopher Whitehead where he told you he couldn't meet the
13
II quota policy because he was rarely assigned to patrol duty?
14
II you recall a meeting like that?
15
II A.
16
II
specifically remember any one officer, no.
17
II
Q.
18
II Whitehead, correct?
19
II A.
No,
20
II Q.
Do you recall telling him that he would be placed on
21
II performance monitoring or he would be terminated if he did not
22
II
23
II A.
No,
24
II
Do you recall at some point Officer Whitehead shortly
25
II thereafter was placed on level 2 performance monitoring?
Q.
Q.
I don't specifically recall that, but if you say so, I will
You recall that before he received a below competent
I don't.
Yes, sir.
Do you recall specifically having a meeting with
I met with every officer who was below, but I don't
You don't remember that particular meeting with Officer
I do not.
comply with the quota policy?
Q.
Do
Do you recall telling him that?
I don't.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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887
1
II A.
2
II monitoring.
3
II
4
II moni taring?
5
II A.
I really don't know.
6
II Q.
In addition to Officer Whitehead, there were other
7
II officers, five other Brooklyn officers in the 75th Precinct,
8
II who accused you of having transferred them out of the precinct
9
II because they failed to meet what they alleged was a quota that
Q.
I don't remember exactly who was placed on performance
Do you remember if he was ever placed on performance
10
II
11
II A.
I remember that there were officers who said that.
12
II
I'm sorry?
13
II A.
I remember that there were officers who said that, yes.
14
II
A grievance was filed in this matter by the Patrolmen's
15
II Benevolent Association?
16
II A.
That's correct.
17
II
That was filed in 2005.
18
II A.
Yes,
19
II
In 2005, were you still the commanding officer of the 75th?
20
II A.
Until September of 2005 I was, yes,
21
II
Well, when the grievance was filed by the officers, you
22
II were still the commander, right?
23
II A.
When it was filed,
24
II
When it was decided, you had moved on,
25
II A.
you set in the 75th Precinct.
Q.
Q.
Q.
Q.
Q.
Q.
Yes,
Do you recall that?
Do you recall that?
sir.
sir.
I believe I was, yes,
sir.
correct?
sir.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
II
2
II point?
3
II A.
888
Q.
Because you had been promoted to deputy chief at that
I was promoted to deputy chief in December of 2004.
4
THE COURT:
5
THE WITNESS:
6
THE COURT:
7
THE WITNESS:
8
THE COURT:
9
THE WITNESS:
Deputy chief of the whole department?
No, ma'am.
Deputy chief of?
Deputy chief is a one star chief.
Deputy chief of what?
Typically, the one star chiefs are what
10
II
11
II officer is a two star and his number two is a one star.
is called the executive officer of a borough.
12
THE COURT:
13
THE WITNESS:
14
THE COURT:
15
THE WITNESS:
16
THE COURT:
17
THE WITNESS:
18
THE COURT:
The commanding
Your borough was?
I was Brooklyn North at that time.
Now you are?
Staten Island.
But also deputy chief of that borough?
Yes,
ma'am.
Thank you.
19
II
Q.
20
II
still for a time the commanding officer of the 75th Precinct?
21
II A.
Yes, sir.
22
II
They were waiting for an opening for you or something?
23
II A.
Yes, sir.
24
II
At some point an arbitration hearing was held, correct?
25
II A.
Q.
Q.
In 2005, after you were promoted to deputy chief, you were
Yes, sir.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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889
Marino - direct
1
II Q.
You testified,
2
II A.
Yes, sir.
3
II
Q.
You were represented by counsel at that hearing?
4
II
A.
Yes,
5
II
Q.
In January of 2006,
6
II had imposed a quota policy during the time you were commanding
7
II
officer of the 75th Precinct and that it violated Labor Law
8
II
Section 215-A, correct?
9 II A.
right?
sir.
the arbitrator ruled that, in fact, you
That was part of her ruling, yes,
sir.
10
II Q.
11
II were unfairly penalized under the policy that had been ruled in
12
II
violation of the labor law, that they could be reevaluated
13
II
without reference to the quota policy, correct?
14
II A.
That's correct.
15
II
But by the time that ruling was made,
16
II had become the executive officer --
17
II A.
Executive officer.
18
II
Q.
Executive officer of the entire patrol borough Brooklyn
19
II
North,
20
II A.
Yes.
21
II
Q.
Sometimes I talk over you and sometimes you talk over me.
22
II
So it's better for the court reporter if we can both slow down
23
II a little bit.
II
you had moved on and
correct?
I t will help her out.
Chief Marino,
24
25
Q.
The arbitration decision permitted officers, who felt they
I know it's a different borough.
is the 42nd Precinct?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Where
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890
1
II A.
It's in the Bronx.
2
II Q.
Are you aware that since 2008, supervisors in the 42nd
3
II Precinct have developed and implemented a system of quotas
4
II mandating numbers for arrests, summonses, and stop and frisks?
5
II A.
I only know what I read in the newspapers.
6
II
But you read about that in the newspaper, correct?
7
II A.
Q.
Yes, sir.
8
THE COURT:
Is that your borough?
Where is the 42nd?
9
MR. MOORE:
It's in the Bronx, Judge.
10
THE COURT:
Go ahead.
11
The point is you had no chain of command at the Bronx?
12
THE WITNESS:
No.
13
II Q.
You became aware of it through the newspapers, right?
14
II A.
Yes, sir.
15
II
In 2008, do you know who the commanding officer of the 42nd
16
II Precinct was?
17
II A.
I do not.
18
II Q.
The 42nd Precinct is in what borough?
19
II A.
The Bronx.
20
II
It's just patrol borough Bronx, it's not divided up?
21
II A.
No, sir.
22
II Q.
Who was the executive officer of the patrol borough Bronx
23
II
24
II A.
25
II Unick and Deputy Chief Terry Monahan.
Q.
Q.
in 2008?
I believe, if I am not mistaken, it was Deputy Chief Kevin
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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891
Marino - direct
1
II Q.
What is the first one?
2
II A.
Kevin Unick, U-N-I-C-K.
3
II
Executive officers of the boroughs sometimes get together
4
II and meet, correct, or do they?
5
II A.
Q.
I'm sorry?
6
7
THE COURT:
Do you know these guys because sometimes
II you have meetings of all the executive officers?
8
THE WITNESS:
9
THE COURT:
10
THE WITNESS:
11
THE COURT:
12
I didn't get the last name.
No.
I came on the job with Kevin Unick.
And the other fellow?
I
just know him from the job.
You don't have meetings of executive
II officers?
13
THE WITNESS:
No, ma'am,
I don't.
14
II
Q.
15
II
officers might be meeting in one room together, maybe with
16
II
their borough chiefs?
17
II Marino that you can recall?
18
II A.
Are you talking about from different boroughs?
19
II
Yes.
20
II A.
No.
21
II
Well, do you ever have occasion to go to CompStat?
22
II A.
Yes,
23
II
Q.
Do you recall that the alleged quota that was being imposed
24
II
in the 42nd Precinct was ever discussed at CompStat meetings?
25
II A.
Q.
Q.
Are there no command meetings where all the executive
Are there no such meetings, Deputy Chief
Other than social events,
no.
sir.
Not in my presence, no.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Filed 05/30/13 Page 64 of 235
892
Marino - direct
1
II Q.
You don't recall any mention of it while you were there?
2
II A.
No,
3
II
Do you recall that one of the -- maybe you read it in the
4
II newspaper, that in order to enforce these quotas, supervisors
5
II
in the 42nd Precinct had developed a detailed monitoring system
6
II
that included computer reports that used color coding to
7
II
categorize officers in terms of their compliance with the
8
II quotas?
9
II A.
No,
10
II Q.
Did you ever have such a system when you were at the 75th
11
II Precinct?
12
II A.
No, sir.
13
II Q.
To keep track of whether officers were meeting their
14
II performance goals or numerical goals?
15
II A.
Not a color code, no,
16
II Q.
Did you have some kind of system to track that?
17
II A.
Yes,
18
II
What was that system?
19
II A.
20
II required to personally review every police officer's activity
21
II
22
II would be at the end of March, June, September and December,
23
II you're required to look at the quarterly evaluations for the
24
II previous quarter and sign off on them that you agree.
25
II
Q.
Q.
sir,
sir,
I don't.
I don't.
sir.
sir.
At the end of each month, the commanding officer is
sheet, monthly activity sheet.
Q.
And on the quarterlies, which
That's how you kept track of how officers did in terms of
SOUTHERN DISTRICT REPORTERS, P.C.
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893
1
II meeting their performance goals, correct?
2
II A.
3
II
complaints gave me a good indication if the job was getting
4
II
done.
5
II
Q.
6
II whether they were meeting them.
7
II
issues that you deal with, but with respect to whether officers
8
II
were meeting these performance goals that you set, that's how
9
II
you kept track of them, by looking at these monthly and
That based with the crime conditions and community
I am speaking specifically about the goals that were set,
I know that there are other
10
II quarterly and annual reports, correct?
11
II
A.
Yes, sir.
12
II
Q.
If officers you believed fell below what you thought was
13
II
the goal that you had set for them, they would be spoken to,
14
II
correct?
15
II
A.
Yes, sir.
16
II
Q.
They would be told to get their numbers up?
17
II A.
Told to do their job properly.
18
II
Q.
Told to get their numbers up?
19
II
A.
To do their job properly.
20
21
THE COURT:
Did that include getting the numbers where
II you wanted them?
22
THE WITNESS:
If it was called for,
yeah.
23
II
Q.
24
II
at this point you're still the -- let me ask you, in December
25
II
2010, were you still the executive officer of patrol borough
Now, in December of 2010, Deputy Chief Marino, once again,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Marino - direct
1
II Brooklyn North?
2
II A.
I was, sir.
3
II
Q.
In December 2010, did you become aware that officers
4
II
assigned to the 79th precinct became so upset over alleged
5
II
summons quotas, that they talked about not writing summonses
6
II
for a 24-hour period in protest?
7
8
MS. PUBLICKER:
THE COURT:
II
Where is the 79th Precinct, what borough
MR. MOORE:
II
It is a borough in Brooklyn that he has
is that?
11
12
supervisory authority over.
13
THE COURT:
14
MS. PUBLICKER:
15
He is asking about other
II precincts.
9
10
Objection.
II
If it's Brooklyn,
I am going to allow it.
At this time, he does not have
supervisory --
16
THE COURT:
I know not at this time.
He did up to a
17
II point in time.
18
II
19
II precincts that you supervised as the executive officer of
20
II patrol borough Brooklyn North, correct?
21
II A.
Q.
In December 2010, the 79th Precinct was one of the
Yes,
sir,
it is.
THE COURT:
22
That's why I am allowing it.
23
II
24
II A.
That's Bedford-Stuyvesant.
25
II
In Brooklyn?
Q.
Q.
Where is the 79th Precinct?
SOUTHERN DISTRICT REPORTERS,
(212) 805-0300
P.C.
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895
Marino - direct
1
II A.
Brooklyn North.
2
II
Q.
You heard about this protest, did you not?
3
II
A.
I read something in the paper, yes.
4
II Q.
5
II
6
II A.
You heard about it and you went to the 79th Precinct,
correct?
7 II Q.
Yes,
I did.
And you went to the 79th Precinct and you told the officers
8
II there that if they did what they said they were going to do,
9
II
which was to go on a 24-hour protest, you could come down there
10
II and make sure they wrote summonses?
11
II A.
That's not accurate.
12
II
What is not accurate about that?
13
II A.
That's not what I told them.
14
II
Is any of that accurate?
15
II A.
No.
16
II Q.
Do you recall what you said to them when you went down
17
II
18
II A.
In sum and substance, yes,
19
II
What did you say to them?
20
II A.
21
II nothing was about numbers.
22
II weren't numbers; they were people that had bad things happen to
23
II them, and that it's a cop's job to stop it.
24
II that any of us, morally or professionally, should reconcile
25
II himself, because maybe we don't get enough money or we don't
Q.
Q.
there to talk to these officers?
Q.
I do.
I stood in front of roll call and I explained to them that
That these little dots on the wall
And I don't think
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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896
like our boss, that we let a little kid get shot or a woman get
1
II
2
II robbed to further some kind of agenda.
3
II
4
II A.
No,
5
II
Q.
The protest was about them saying they were being forced to
6
II
write a certain number of summonses, right, that was what the
7
II
protest was about that drew you to go to the 79th Precinct,
8
II
correct?
9
II A.
Q.
You didn't speak to them about numbers?
I did not.
What drew me to go there is the officers saying they were
10
II not going to do their jobs, which would put the community at
11
II risk.
12
THE COURT:
13
THE WITNESS:
What were they protesting?
I don't remember what they were angry
14
II
about.
15
II
I think that's what it was about.
16
17
THE COURT:
You don't think they were protesting about
II the numbers?
THE WITNESS:
18
19
I don't think they liked their commanding officer, and
II
Q.
No.
Let me show you if I can maybe refresh your recollection
20
MS. PUBLICKER:
21
MR. MOORE:
22
23
24
25
Can I see that exhibit?
It's not an exhibit.
I am going to try to
II refresh his recollection.
MS. PUBLICKER:
Even if he wants to refresh his
II recollection.
THE COURT:
You are right.
Show her.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3M8FL02
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1
II
2
897
II recollection?
What are you going to show him to refresh his
3
4
MR. MOORE:
I am going to show him a newspaper article
II to see if it refreshes his recollection.
5
THE COURT:
You can show anything to see if it
6
II refreshes his recollection.
7
II
Q.
8
II
finish reading it
Chief Marino, take a look at that and read it, and when you
THE COURT:
9
He is going to ask you whether it
10
II refreshes your recollection.
11
II A.
The answer is either yes or no.
Yes, sir, I read it.
12
THE COURT:
13
Does it refresh your recollection?
THE WITNESS:
It refreshes my recollection as to what
14
II was written after it happened.
15
THE COURT:
16
II
Does it refresh your recollection of the
actual events?
17
THE WITNESS:
18
THE COURT:
Yes.
So now that his recollection is refreshed,
19
II what is your question?
20
II Q.
21
II you told these officers, in sum and substance, just try it --
22
So you now recall that when you went to the 79th Precinct,
referring to this not writing summonses for 24 hours
23
II come down here and make sure you write them.
24
II saying that to them?
25
II A.
That's inaccurate.
I will
Do you now recall
I never said that.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
2
THE COURT:
II
THE WITNESS:
THE COURT:
THE WITNESS:
II
I think I told you what happened, when I
said what I told them when I went down there.
THE COURT:
9
10
I asked you if it refreshed your
II recollection as to what actually happened.
7
8
It refreshes my recollection that that
II was somebody' s account of what happened the day after.
5
6
It what does it refresh your recollection
then?
3
4
898
The article does not refresh your
II recollection as to what actually happened?
11
THE WITNESS:
12
THE COURT:
No, it does not.
Thank you.
13
II Q.
14
II the officers in the 79th Precinct, what is quoted in the
15
II newspaper there, correct?
16
II A.
That's correct.
17
II
Now, during the time you were the executive officer of
18
II patrol borough Brooklyn North, you also supervised the 8lst
19
II Precinct, correct?
20
II A.
Yes,
21
II Q.
How many precincts were under your supervision?
22
II A.
Ten.
23
II Q.
During the time you were the executive officer, who was the
24
II
25
II A.
Q.
So having read that, you don't recall having said that to
sir.
commanding officer of Brooklyn North patrol borough?
Assistant Chief Joseph F.X. Cunneen.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3M8FL02
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1
II
Q.
I'm sorry?
2
II
A.
Assistant Chief Joseph F.X. Cunneen.
3
II
followed by Assistant Chief Gerald Nelson.
4
II
Q.
When did Nelson become the CO of patrol borough Brooklyn?
5
II
A.
I believe in November or December of 2005, I believe.
6
II
Q.
When did you leave to go to Staten Island?
7
II
A.
December of 2010.
8
II
Q.
So for over a little bit over five years, you were the
9
II
executive officer for patrol borough Brooklyn North, correct?
10
II
A.
That would be correct.
11
II
Q.
When you were the executive officer, were you aware of a
12
II
procedure that could be followed whereby officers could be
13
II
brought up to a personnel review board for potential transfer
14
II
due to being a substandard performer?
15
II
procedure?
16
II
A.
Yes, sir.
17
II
Q.
Part of being substandard would include not being
18
II
productive in terms of the number of arrests, summonses, or
19
II
250s that are generated, that's part of it, right?
20
II A.
21
II
Q.
22
II
executive officer of patrol borough Brooklyn North, did you
23
II
become aware that there were quotas or productivity goals in
24
II
existence, with regard to summonses, arrests and 250s, at the
25
II
81st Precinct, did you become aware of that?
899
And then he was
Were you aware of such a
That could contribute, yes.
Now, with regard to the 8lst Precinct, while you were the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3M8FL02
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1
II A.
I assume there were productivity goals, yes, sir.
2
II
Q.
I am asking if you can answer the question whether there
3
II
are quotas or productivity goals with regard to summonses,
4
II
arrests and 250s.
5
II A.
9oo
Did you become aware of that?
No.
6
THE COURT:
7
THE WITNESS:
8
THE COURT:
9
THE WITNESS:
10
11
THE COURT:
II
What precinct did you say?
81.
Is that in your borough?
It was at the time.
You never became aware of that at any
time?
12
THE WITNESS:
No.
13
II
Q.
14
II
on August 30, 2010 concerning matters arising out of the 81st
15
II Precinct?
16
II A.
17
Do you recall giving a statement to the police department
No, sir.
THE COURT:
We will pick up there after.
We will have
18
II
19
II
20
II
21
II Q.
22
II
you become aware that there are quotas, productivity goals with
23
II
regard to summonses, arrests and 250s, did you become aware of
24
II
that public?
25
a ten minute recess and reconvene at 20 of.
(Recess)
BY MR. MOORE:
Deputy Chief Marino, with regard to the 81st Precinct, did
MS. GROSSMAN:
Objection.
Compound question.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Is it
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1
II
quotas, productivity goals?
2
3
901
MR. MOORE:
It will be clear why the question is
II phrased that way, depending on his answer.
4
THE COURT:
I agree with Ms. Grossman.
Don't use
5
II both.
6
II
Q.
7
II
there were quotas with regard to summonses, arrests and 250s?
8
II A.
9 II
Q.
Use one or the other or do them separately.
With regard to the 81st Precinct, did you become aware that
No.
Did you become aware that there were productivity goals
10
II with regard to summonses, arrests and 250s?
11
II A.
No.
12
13
THE COURT:
II
number goals?
14
15
In the 81st Precinct, there were not
THE WITNESS:
II
there were.
I was not aware of any specific, no.
MR. MOORE:
16
I tried to answer before that I assume
Judge, let me just pose it this way then.
17
II
Q.
18
II
from the officers on a monthly basis?
19
II A.
No.
20
II
Do you recall on August 30, 2010 giving a sworn statement
21
II to a representative of the New York City Police Department
22
II
23
Q.
Did you become aware that certain numbers were expected
concerning matters having to do with the 8lst Precinct?
MS. GROSSMAN:
Your Honor, plaintiffs and defendants
24
II worked out an arrangement in terms of what the exhibit is that
25
II Mr. Moore is going to show the witness, and it will probably
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3M8FL02
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1
II
facilitate if he can show the witness the exhibit to refresh
2
II
902
his memory.
3
4
MR. MOORE:
II A.
I don't know what you're talking about.
5
6
MS. GROSSMAN:
II
7 II
document.
THE COURT:
II
Plaintiffs' counsel and defendants'
counsel worked out something regarding this particular
8
9
I am waiting for the answer.
I think Mr. Moore is planning to show it
to him.
10
MS. GROSSMAN:
He should show him.
11
II Q.
12
II
13
II A.
Thank you, sir.
14
II Q.
And see if you can recognize that.
15
II A.
I know what it's about now, sir.
Let me hand you what has been marked as Plaintiffs' Exhibit
299, Chief Marino.
16
MR. MOORE:
Do you want a hard copy, Judge?
17
THE COURT:
Sure.
18
MS. GROSSMAN:
Thank you.
I would just note this is not your
19
II
20
II a lot of inaudibles and not everything is captured, and there
21
II
is a lot of misuse of words.
22
II
for the record.
23
II
Q.
24
II
correct?
25
II A.
typical transcription of a deposition transcript, and there is
So I just wanted that to be clear
This is a statement you gave back in August of 2010,
Yes, sir.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3M8FL02
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1
II
Q.
2
II
correct?
3
II A.
Yes,
4
II
Q.
The same oath that you took when you got up here today to
5
II
testify, correct?
6
II
A.
Yes, sir.
7
II
Q.
Directing your attention to page 65 of the transcript,
8
II which you can either look at it in terms of 65 of the
9
II
9 03
At the time, you had taken an oath to tell the truth,
sir.
transcript or 24435, the Bates stamp number.
10
II A.
11
II
12
II
13
II Marino has just testified to, the portion that Mr. Moore would
14
II
I have it.
MS. PUBLICKER:
improper impeachment.
THE COURT:
II
I would object to this as this is
It's not in opposition to what Chief
like to read.
15
16
Yes, sir,
Q.
I don't know that unless I read 24435.
Do you recall being asked this question --
17
THE COURT:
18
MR.
19
THE COURT:
That's where I am reading.
20
THE COURT:
It seems to be consistent.
MOORE:
I am reading it to myself.
Line 12 to line 19.
He says he is
21
aware that there were goals, but he doesn't know the numbers.
22
That's what I think he just said here.
The last thing he said
23
II was he knows that number goals were set, but he doesn't know
24
II the numbers.
25
MR. MOORE:
He said he wasn't aware of quotas.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
He
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Marino - direct
904
wasn't aware of productivity goals.
1
2
THE COURT:
Here today?
3
MR. MOORE:
He just said that.
4
THE COURT:
He also said,
I was aware that there were
number goals set, but I don't know the numbers.
5
MR. MOORE:
6
For what it's worth, I would like to ask
him whether he was asked that question and gave that answer.
7
THE COURT:
8
I won't allow it.
9
II
here.
10
II
said the same thing here.
11
II
12
He said the same thing
II were set but you don't know the numbers?
That's my recollection.
That's improper.
I believe he
But we can find out.
Did you just testify that you were aware that numbers
13
THE WITNESS:
14
THE COURT:
Yes, ma'am,
I did.
OK.
15
II
16
II there were quotas, was your answer, I am aware that there were
17
II quotas?
Q.
When you were asked that question, were you aware that
THE COURT:
18
You didn't say you were aware of the word
19
II quotas.
20
II didn't know the number, is that true?
You said you knew that number goals were set, but you
21
THE WITNESS:
22
THE COURT:
Here did you use the word quotas?
23
MR. MOORE:
I am trying to explain why I think it's a
24
25
II
Yes.
relevant question.
THE COURT:
I am asking you, did he use the word
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288
Filed 05/30/13
Marino - direct
D3M8FL02
1
Page 77 of 235
9o5
II quotas?
2
MR. MOORE:
Yes.
3
THE COURT:
What page is it?
4
MR. MOORE:
Page 65,
5
II 19.
line 12, going to the end of line
It's a compound question.
6
THE COURT:
I see that.
7
All right.
I will let you read through the first
8
II sentence of 17.
9
II sentence of 17.
Go ahead.
Read from line 12 through the first
10
II
Q.
11
II
least in part, this answer on August 30, 2010, Chief Marino?
12
II
"Q.
13
II Precinct.
14
II with this time frame, did you become aware that there are
15
II quotas, productivity goals with regard to summonses, arrests
16
II and 250s, in other words, certain numbers they expect to on a
17
II monthly basis?
18
II
19
II
20
II that answer on August --
21
II
22
II
"A.
Do you recall being asked this question and giving, at
I am going to direct your attention back to the 81st
With regard to the 81 itself, and we are going to go
I am aware of that."
Do you recall being asked that question and giving
MS. PUBLICKER:
sentence in response.
I
just ask that he complete the
He did not complete his response.
23
THE COURT:
Because I said he could only read through
24
II the first sentence.
25
II would like the whole answer read, that's fine with me, but he
That was not Mr. Moore's fault.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
If you
Case 1:08-cv-01 034-SAS-HBP Document 288
Filed 05/30/13 Page 78 of 235
Marino - direct
D3M8FL02
1
II
906
was only obeying my order.
2
Go ahead.
Read the whole answer.
3
II
"A.
I am aware of that.
4
II
administrative guy, now it is the patrol guy, to set the
5
II
performance parameters in their own command units."
6
II
A.
7
II Q.
8
II
9
II A.
Yes,
10
II
Q.
You were being examined at that point by a member of the
11
II
New York City Police Department, correct?
12
II
A.
Yes,
13
II
Q.
Were you aware what the parameters were for the numbers in
14
II the 8lst Precinct?
15
II A.
As it says on the next page, no,
16
II
Q.
Without regard to the document at this point,
17
II
independent of the document if you would, were you aware of
18
II what the parameters were in the 8lst Precinct?
19
II
A.
I was not.
20
II
Q.
During the period of time -- withdraw.
21
II
22
II the executive officer who supervised the 8lst Precinct,
23
II
correct?
24
II
A.
Yes,
25
II
Q.
And it's your testimony you weren't aware of what the
It's guide.
Commanders have the right,
I am just correcting it.
Do you recall being asked that question and giving that
answer in August of 2010?
sir.
sir.
Were you aware of that?
I was not.
just
This is discussing the 8lst Precinct while you were
sir.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 79 of 235
D3M8FL02
Marino - direct
907
1
II numbers were?
2
II
A.
That's correct.
3
II
Q.
In your experience in the New York City Police Department,
4
II
would it be normal for a precinct commander to have certain
5
II
productivity expectations of his officers?
6
II
A.
It's actually mandated that he does, yes.
7
II
Q.
It's in the patrol guide now?
8
II
A.
It's in the order you just showed before,
9
II
Q.
Operations Order 52?
10
II
A.
That would be correct.
11
II
Q.
That would be a normal thing for precinct commanders to
12
II
follow,
13
II
A.
Yes,
14
II
Q.
When I say normal, what I am referring to is it would be
15
II
normal to have numerical numbers placed on those productivity
16
II
standards, correct?
17
II
A.
No, sir.
18
II
Q.
Directing your attention to page 66 of this document, on
19
II
line 7, do you recall being asked this question and giving this
20
II
answer to a representative of the New York City Police
21
II Department on August 30, 2010:
22
II
"Q.
23
II
those productivity standards?
24
II
"A.
25
sir.
right?
sir.
Would it be normal to have numerical numbers placed on
Yes, that is right."
Do you recall being asked that question and giving
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01034-SAS-HBP Document 288
D3M8FL02
Filed 05/30/13 Page 80 of 235
908
Marino - direct
1
II that answer in August of 2010?
2
II A.
Yes,
3
II
You're not aware, are you, of any precinct that doesn't do
4
II the same thing?
5
II A.
At this time or at that time?
6
II
When you were answering in August of 2010.
7
II A.
8
II didn't have knowledge of every precinct in the city.
Q.
Q.
9 II Q.
sir.
I couldn't answer.
I was not aware of any precinct, but I
Let me direct your attention once again to page 66,
10
II
10.
11
II
"Q.
12
II doesn't do that?
13
II
line
"A.
Are you aware of a precinct commanding officer that
No,
14
I'm really not."
Do you recall being asked that question and giving
15
II that answer?
16
II A.
Yes.
17
II
Q.
In your judgment, it's not only the prerogative, but it's
18
II
the policy of the police department for precinct commanders to
19
II
set numerical goals?
20
II A.
No,
21
II
Or numerical numbers?
22
II A.
No,
23
II
That's not the policy?
24
II A.
No,
25
II Q.
That's not what Operations Order 52 says?
Q.
Q.
sir.
sir.
sir.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1 :08-cv-01 034-SAS-HBP
D3M8FL02
Document 288 Filed 05/30/13
Marino - direct
Page 81 of 235
1
II A.
It does not say numerical numbers, no,
2
II
Well, do you recall just answering the question, Would it
3
II be normal to have numerical numbers placed on productivity
4
II
standards?,
5
II
is right, do you recall that?
6
II A.
At that time, yes, sir.
7
II
And you say it's now changed?
8
II A.
Yes,
9
II
909
When did it change?
Q.
Q.
Q.
sir.
and the answer you gave at the time was, Yes, that
sir.
10
II A.
When the law changed.
11
II
When what law changed?
12
II A.
The law regarding quotas.
13
II Q.
When was that,
14
II A.
I believe it was 2011.
15
II
At least up until 2011, whenever that law changed, that was
16
II the practice, that precinct commanders in all precincts could
17
II
Q.
Q.
in 2011?
set numerical goals for productivity standards, right?
18
MS. GROSSMAN:
The law changed in 2010.
So in terms
19
II
20
II want the record to be clear it's 2010.
21
II
22
II A.
I'm sorry, sir?
23
II Q.
Whenever the law changed, 2010,
24
II
25
II New York City Police Department had the right to set numerical
of the witness's testimony tethered to the law change,
Q.
I
just
Can you answer the question?
2011, up until that point,
it's your understanding that precinct commanders throughout the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288
D3M8FL02
Filed 05/30/13 Page 82 of 235
91 o
Marino - direct
1
II
2
II A.
Yes,
3
II Q.
But it's your testimony that that changed after that law
4
II
5
II A.
Yes,
6
II Q.
Looking at Operations Order 52, do you believe that that
7
II
8
II numerical numbers for productivity standards, Operations Order
9
II
numbers for productivity standards, correct?
sir.
changed?
sir.
also gives the discretion to precinct commanders to set
52?
10
II A.
11
II does not.
12
II Q.
13
II
2010, you were not aware of a precinct that does not do this,
14
II
in other words, that does not set numerical goals for
15
II productivity standards, correct?
16
II A.
17
II precincts were doing.
18
II know either way.
19
II Q.
Directing your attention again to --
20
II A.
I couldn't be knowledgeable what a precinct in the Bronx
21
II was doing or Staten Island or Brooklyn South or Queens or
22
II Manhattan because that wasn't under my jurisdiction and it
23
II didn't concern me.
24
II Q.
25
I don't have it in front of me, but as I recall, no,
In fact,
it
at the time you gave your testimony in August of
I wasn't aware or unaware.
I didn't know what other
I said, no,
I'm really not.
Directing your attention to page 66,
MS. PUBLICKER:
I didn't
line 10 --
This is improper impeachment.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
It's
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D3M8FL02
Marino - direct
1
II
911
not inconsistent with his testimony here today.
2
THE COURT:
Which sentence do you want to read now?
3
MR. MOORE:
I want to read a passage.
4
THE COURT:
Just tell me the page and line.
5
MR. MOORE:
Page 66, line 10.
6
II
"Q.
7
II
referring to numerical numbers placed on productivity
8
II
standards?
9
II
"A.
Are you aware of a precinct CO that doesn't do that,
No,
I'm really not."
10
THE COURT:
I will allow it.
11
You gave that testimony, right?
12
THE WITNESS:
Yes.
13
II A.
14
II
commander wasn't doing it so I assumed they were.
15
II
Q.
16
II numerical goals for productivity standards; is that what your
17
II
18
II A.
No, it's not.
19
II
Isn't that what you just said?
Nobody ever came up to me and told me the precinct
So nobody in the police department ever told you don't set
testimony is?
Q.
20
THE COURT:
What did you just say?
21
II A.
22
II
of any precinct commander that was not setting goals.
23
II
Q.
24
II decision that found that while you were in the 75th Precinct
25
II you had set quotas for the number of summonses officers were
What I said was no one ever came up to me and made me aware
Were you ever disciplined as a result of the arbitration
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288
D3M8FL02
Filed 05/30/13 Page 84 of 235
912
Marino - direct
1
II
expected to get?
2
II
A.
No,
3
II
Q.
Did anybody in the police department ever discuss that with
4
II
you,
5
II A.
Yes.
6
II
Q.
Who?
7
II
A.
Somebody from legal,
8
II
commissioner of legal matters or somebody sat me down and
9
II
discussed it with me.
10
II
Q.
11
II
issues there,
12
II police department, Chief Esposito, any assistant chiefs, ever
13
II
discuss with you that arbitration decision?
14
II
A.
I can't recall,
15
II
Q.
In the patrol borough structure, patrol borough COs report
16
II
to the chief of patrol,
17
II
A.
Correct,
18
II
Q.
At the time you were in patrol borough Brooklyn North, who
19
II
was the chief of patrol?
20
II A.
21
II
I can't remember who it was at the time.
22
II
Q.
23
II A.
24
II preceding Chief Robert Giannelli.
25
II Q.
I was not.
that arbitration decision?
I believe.
It may be deputy
I won't go into that because there may be attorney/client
but did anybody in the command structure of the
no.
correct?
sir.
Was that Giannelli?
I don't know if i t was Chief Giannelli or Chief Estavillo.
Well, Chief Esposito is the chief of department.
No,
Estavillo.
Nicholas Estavillo was the chief of patrol
Did either Chief Estavillo or Chief Giannelli ever discuss
SOUTHERN DISTRICT REPORTERS,
(212) 805-0300
P.C.
Case 1:08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 85 of 235
D3M8FL02
Marino - direct
1
II that arbitration decision with you?
2
II A.
Not as I recall, no.
3
II
Your commanding officer in Brooklyn North, did they ever
4
913
II discuss it with you?
Q.
5
A.
Not as I recall, no.
6
Q.
Your commanding officer at the time was who?
7
A.
That would have been Chief Gerald Nelson.
8
Q.
Did Nelson ever discuss that arbitration decision with you?
9
A.
Not as I recall.
10
II Q.
11
II paramilitary organization?
12
II A.
Yes, sir.
13
II
Q.
Discipline and adherence to orders from commanders is very
14
II
important in the functioning of the New York City Police
15
II
Department, correct?
16
II A.
Yes, sir.
17
II Q.
One of the duties of a police officer is to obey lawful
18
II orders and instructions by supervising officers, right?
19
II A.
Yes, sir.
20
II Q.
And that is set forth right in the patrol guide, right?
21
II A.
Yes, sir.
MR. MOORE:
22
23
Would you agree with me, Chief, that the NYPD is a
II
Judge, before I forget,
I move the
admission of Plaintiffs' Exhibit 299.
24
MS. PUBLICKER:
25
THE COURT:
Objection, your Honor.
Sustained.
I am not going to accept this
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 86 of 235
D3M8FL02
Marino - direct
1
II
in evidence.
2
II
it,
it's been read into the record.
3
II
Q.
One of the ways officers are given guidance and
4
II
supervision, one of the principal ways is through the roll call
5
II
system, correct?
6
II
A.
Yes,
7
II
Q.
That happens on a daily basis for every tour, correct?
8
II
A.
Yes, sir.
9
II
Q.
At roll calls officers are told what the conditions are for
10
II
the day, correct?
11
II
A.
Yes, sir.
12
II
Q.
They are sometimes given briefings on changes in the law,
13
II
correct?
14
II
A.
Yes, sir.
15
II
Q.
And new interim orders or policies that are adopted by the
16
II
police department, correct?
17
II
A.
At times, yes, sir.
18
II
Q.
And from time to time, precinct commanders appear at the
19
II
roll call and speak to the simple troops?
20
II A.
Yes, sir.
21
II
Q.
Would you be concerned as a commanding officer if a
22
II
supervisor got up at a roll call and said, at a particular
23
II
location, no one is walking out of that location without being
24
II
stopped?
25
II
A.
I
You used it for impeachment.
914
Where you have used
That's fine.
sir.
Would you be concerned about that?
might.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288
D3M8FL02
Filed 05/30/13 Page 87 of 235
915
Marino - direct
1
II
Q.
2
II
house, right?
3
II A.
No, sir.
4
II
I'm sorry?
5
II A.
No, you can't.
6
II
Q.
In order to stop them, you have to have reasonable
7
II
suspicion, correct?
8
II A.
Yes,
9
II
Of course,
Q.
Q.
That's because you can't just stop anybody walking out of a
That's correct, you can't.
sir.
if you see them committing a crime, you can stop
10
II them, and if you have probable cause, you can arrest them,
11
II
12
II A.
Yes,
13
II Q.
But just walking out of a house without anything more,
14
II that's not a reason to stop anybody, correct?
15
II A.
No, sir, it's not.
16
II Q.
No, sir, you agree with that?
17
II A.
I agree with what you just said.
18
II
Q.
So would you be concerned as a commanding officer if a
19
II
supervisor got up and said, I want everybody coming out of a
20
II
certain location,
21
II
you be concerned that that might lead to suspicionless stops
22
II and frisks if the supervisor officer didn't say more than that,
23
II would you be concerned about that?
24
II A.
25
correct?
sir.
I want everybody stopped on this tour?
I might, yes.
MR. MOORE:
Nothing further,
Judge.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Would
Case 1 :08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 88 of 235
D3M8FL02
Marino - direct
1
THE COURT:
Ms. Publicker.
2
MR. MOORE:
Thank you, Chief.
3
THE WITNESS:
916
4
My pleasure.
II CROSS-EXAMINATION
5 II BY MS. PUBLICKER:
6
II
Q.
Good afternoon, Chief.
7
II A.
Good afternoon, ma'am.
8
II
Q.
Could you briefly describe your educational background?
9
II A.
I have a bachelor's in business administration from the
10
II
State University of New York.
11
II
Q.
12
II A.
November 7,
13
II
Just a little while ago Mr. Moore read to you from a
14
II transcript, is that correct?
15
II A.
Yes, rna' am.
16
II
Did you ever have a chance to review that transcript?
17
II A.
No, ma'am.
18
II Q.
I believe you were trying to say something about the
19
II
statement,
20
II
it's the patrol guy, to set performance parameters in their own
21
II
command units"?
22
II A.
Q.
Q.
When did you join the New York City Police Department?
1979.
"Commanders have the right,
administrative guy,
now
Yes, ma'am.
23
MR. MOORE:
Object to the form of the question.
24
THE COURT:
I don't know what you just said.
25
II
Q.
You attempted to clarify something about that statement to
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3M8FL02
Marino - cross
917
1
II
Mr. Moore on your direct?
2
II
A.
Yes, ma'am.
3
II
Q.
What were you trying to clarify?
4
II
A.
The administrative guide was the original procedure, now
5
II
it's the patrol guide, not guy.
6
II
Q.
7
II
heard or read about the 42nd Precinct issues that Mr. Moore
8
II
asked you about?
9
II
A.
None.
10
II
Q.
How long ago did you leave the 75th Precinct?
11
II
A.
Seven and a half years ago,
12
II
Q.
Are you familiar with officers' annual performance
13
II
evaluations?
14
II
A.
Yes, ma'am,
15
II
Q.
There are 28 different subcategories for that evaluation,
16
II
are there not?
17
II
A.
Yes, ma'am.
18
II
Q.
Those are separated?
19
II
A.
Yes.
20
II parameters, dimensions they call them.
21
II
Q.
22
II
Precinct, did you assign mandatory numerical ratings triggered
23
II
by certain levels of activity?
24
II
A.
I t was suggested,
25
II
Q.
Was that for the overall evaluation score or for the
Do you have any personal knowledge of anything that you
September of 2005.
I am.
There are performance parameters and behavioral
So when you were the commanding officer of the 75th
yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3M8FL02
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918
1
II
subcategories?
2
II
A.
3
II
particular parameter.
4
II
Q.
Could you give an example?
5
II
A.
Yes,
6
II
in there with accidents and traffic,
7
II
properly issue enough moving summonses in the right places to
8
II
stop people that were having accidents and injuries, he might
For the subcategories where I felt were affected by that
I can.
One of the ones I set was,
get low in that area.
9
there is something
if an officer failed to
If an officer failed to do much in the
10
II
way of arrests, proactive policing, hawkers, movers, he might
11
II
got low in initiative, or problem recognition if he or she
12
II
didn't have the ability to see these things that were happening
13
II
right in front of their face.
14
II
Q.
Why did you set these performance goals?
15
II
A.
The level of activity and the level of performance that the
16
II
officers in the 75 were producing when I first got there was so
17
low that it was actually a detriment to the community.
It was
18
II
doing nothing to improve the conditions in one of the precincts
19
II
that was probably one of the most crime ridden violent
20
II precincts in the city.
21
II
Q.
22
II
Precinct when you first arrived?
A.
23
What was the level of activity that you saw in the 75th
Surprisingly enough, the 400 or so officers assigned to
24
II
patrol all saw exactly five summonses every month, no more,
25
II
less, and that was movers, parkers, and quality of life
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
no
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D3M8FL02
Marino - cross
1
II
summonses combined.
2
II
919
five every month.
400 people all managed to seek exactly
3
Q.
What did that signal to you?
4
A.
It told me that they had set their own quota.
5
Q.
Did you believe that was a problem?
6
A.
Yes,
7
Q.
Why did you believe it was problematic?
8
A.
Working in Brooklyn North for 22 years,
9
it was.
I knew in some
II areas the level of violence and drugs and crime, and these
10
II
officers doing five combined, movers, parkers and quality of
11
II
life summonses a month was just not enough to fix the problems
12
II there.
13
II
14
II they were driving by things,
15
II almost a malfeasance to me.
16
II
17
II A.
18
II
19
II find and what I could see, arrests that I could make, summonses
20
II that I could write, stops that I could perform, proper stops.
21
II And I did some analysis about the quota law.
22
II the administrative guide and see exactly what was proper to do
23
II and not to do.
24
II would serve the community in a better manner.
25
II Q.
And, also, if an officer did that by the third or
fourth day of the month and no more, it kind of indicated that
Q.
just not addressing it.
It was
What did you do in response, if anything?
I analyzed all the crime in the 75th Precinct.
I drove
around for weeks, myself, in the street to see what I could
I did look into
And I did set numbers for them that I thought
What were the numbers that you set?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 92 of 235
D3M8FL02
Marino - cross
920
1
II A.
2
II
3
II to attempt to make one arrest a month.
4
II Q.
5
II
6
II A.
No.
7
II Q.
Why did you set the numbers that you did?
8
II A.
When you ask people to do things, number one, the officers
9
II
ask for a number, they want one.
10
II
they want to know what do I have to do to be OK, what can I do
11
II
to meet standards, so they ask for a number.
12
II number, you have to make one that is attainable, that will not
13
II put an undue burden upon the officers or the community, and yet
14
II meet the needs of that community at the same time.
15
II
16
II time?
17
II A.
18
II
19
II there in murders.
20
II
I asked them to increase their summons production from five
to ten.
I asked them to try to make two good stops a month and
Did you ever assign a mandatory numerical rating to be
triggered by low activity for UF-250s?
Q.
Most people come to work and
And if you set a
What were the crime conditions in the 75th Precinct at that
The 75th Precinct historically and at that time still
almost every year led the city in shootings, robberies, up
It was heavy drugs.
THE COURT:
21
THE WITNESS:
Where is this?
That's East New York in Brooklyn.
22
II
23
II heavy crime.
24
II
Q.
25
II
State labor law that was in effect at the time?
It's
a five and a half square mile area that's heavily populated and
I believe you stated that you were aware of a New York
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288
D3M8FL02
Filed 05/30/13 Page 93 of 235
9 21
Marino - cross
1
II A.
Yes, ma'am,
2
II
Did you believe that your mandatory ratings in certain
3
II dimensions violated the New York State labor law at that time?
4
II A.
No,
5
II Q.
Was anyone transferred out of the 75th Precinct as a result
6
II of the performance standards that you set?
7
II A.
Yes, ma'am.
8
II Q.
Was anyone denied overtime as a result of the performance
9
II
standards that you set?
10
II
A.
11
II Q.
12
II
13
II A.
No.
14
II
You're aware that a grievance was filed against NYPD for
15
II that practice?
16
II A.
Yes, ma'am.
17
II
Do you recall when that grievance was filed?
18
II A.
19
II document that the lawyer gave me, that counsel gave me.
20
II
Q.
21
II
75th Precinct?
22
II A.
23
II
statement on August-- is that August 2010?
24
II
just confused it.
25
II
Q.
Q.
I was.
I did not, and I still don't.
No.
Was anyone denied days off as a result of the performance
standards that you set?
Q.
Q.
I believe it was in October of '10, according to the
When the grievance by the PBA was filed with regards to the
I don't know when it was filed.
I know that I gave my
No,
I'm sorry.
I don't remember when it was done.
What did you understand the grievance to include?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
I
Case 1:08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 94 of 235
D3M8FL02
Marino - cross
922
1
II A.
2
II
taken off their tours and made to suffer a loss, or get
3
II
substandard evaluations, based solely on their refusal to write
4
II
a certain amount of moving or parking summonses within a
5
II
specified time frame.
6
II
Q.
Are you aware of the findings of the arbitrator?
7
II
A.
Yes, ma'am,
8
II
Q.
How are you aware of those findings?
9
II A.
The officers grieved the fact that they were transferred or
Well,
I am.
I read them, and then it was given to me also by the
10
II
department at some point in time.
11
II
Q.
12
II
recall?
13
II A.
I can't recall.
14
II
Q.
If I said it was 2006, would that refresh your
15
II
recollection?
16
II A.
Yes, rna' am.
17
II
Q.
Did the arbitrator determine whether anyone had received a
18
II
low evaluation as a result of the alleged quota?
19
II A.
20
II
standard evaluation as a result of that, no.
21
II
Q.
Do you recall an Officer Velez?
22
II
A.
Yes,
23
II
Q.
Do you recall that he made a grievance against you?
24
II A.
Yes, ma'am,
25
II
As part of that same labor law grievance we were speaking
Q.
When did the arbitrator release the findings,
if you can
I don't think she determined that anybody received a below
I do,
David Velez.
I do.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3M8FL02
Marino - cross
923
1
II of?
2
II A.
Yes, ma'am.
3
II Q.
Do you recall that he claimed that he received a low
4
II
5
II A.
Yes, rna' am.
6
II
Q.
What was the low evaluation that he was alleged to have
7
II
received?
8
II A.
He received a 3.5, which is above standards.
9
II
Q.
After you received the arbitration decision in 2006, did
10
II
you continue to impose those mandatory ratings for officers?
11
II A.
No, rna' am.
12
II Q.
You are aware that the labor law was amended again in 2010?
13
II A.
Yes, ma'am.
14
II
What is your current understanding of the kinds of quotas
15
II that are not permitted under New York State Labor Law?
16
II A.
17
II police officer to suffer any kind of monetary loss, change of
18
II
tour, change of assignment, for failure to produce a specified
19
II
number of moving summonses, parking summonses, quality of life
20
II
violations, UF-250s, or stop and frisks, or arrests within a
21
II
specified time frame.
22
II
Q.
23
II
Labor Law?
24
II A.
Yes, ma'am.
25
II Q.
Are you aware if the arbitrator found that Officer
evaluation?
Q.
You cannot suffer any police officer, you cannot cause any
Do you currently comply with the existing New York State
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 96 of 235
D3M8FL02
Marino - cross
924
1 II Whitehead, which was mentioned by Mr. Moore, was retaliated
2
II against in any way?
3
II A.
No, she did not.
4
II
Q.
How many times have you attended CompStat?
5
II
A.
I would say over 100.
6
II
Q.
Has anyone at CompStat ever told you to increase the number
7
II
of stops officers under your command conduct?
8
MR. MOORE:
Object to the form,
10
THE COURT:
He is on cross.
11
MR. MOORE:
I called him as an adverse witness.
12
THE COURT:
It calls for a yes or no.
9
Judge.
He is on
II direct.
13
II
14
II
it.
II
15
I will allow
Did anyone from CompStat ever tell you that?
A.
No.
Not just to increase the number of stops, no.
16
MR. MOORE:
Can I just have the question read back?
17
THE COURT:
Sure.
18
(Record read)
19
II A.
No.
20
II
Has anyone at CompStat ever told you to increase the number
21
II of arrests officers under your command conduct?
22
II A.
No, not just arbitrarily like that, no.
23
II
Q.
Has anyone at CompStat ever told you to increase the number
24
II
of summonses officers under your command conduct?
25
II
A.
Q.
No.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 97 of 235
D3M8FL02
Marino - cross
II
925
Q.
What have they told you at CompStat about officer activity?
2 II A.
The main thing that you hear a lot at CompStat is they talk
1
3
II
4
II ever said they want more numbers for numbers' sake.
5
II do things like they can put up the computer maps and show
6
II robberies up in this area.
7
II
8
II taking proper steps to stop the conditions.
9
II
about quality over quantity.
activity in this area.
Nobody from the top on down has
They can
And then they will show a lot of
No, it should be here.
You're not
Nobody would ever
just arbitrarily say they need to make more arrests, they need
10
II to write more summonses.
11
II enough in this area to address this condition, and how come
12
II you're not?
13
II You're not taking the proper steps.
14
II
as a commanding officer of that precinct to fix the conditions
15
II
for the people that live there.
16
II
They might say you're not doing
You're not deploying your men and women properly.
You're not doing your job
(Continued on next page)
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
------------------------
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926
Marino - cross
1
II
Q.
Just to step back for a minute, for the time when you were
2
II
the commanding officer of the 75th precinct.
3
II
stated that you drove around the precinct?
4
II A.
5
II
Q.
6
II
summonable offenses when you did that?
Yes,
I did,
I believe you
for quite a few weeks.
Did you find it difficult to identify crime conditions or
7
MR. MOORE:
Object to the form,
8
THE COURT:
Are you objecting to the leading?
9
MR. MOORE:
Not only that.
judge.
She's asking him this
10
II
broad question about whether he saw illegal behavior.
11
II
did he stop and summons?
12
THE COURT:
She's not asking that.
13
II
Did you notice it?
14
II
I mean
She's just saying:
guess that's the question.
Did you see it?
15
MS. PUBLICKER:
16
THE WITNESS:
Was it hard to see it?
I
Yes, your Honor.
Actually honestly I found it hard to go
17
II
a couple of hours without seeing something.
18
II
Q.
19
II could not set quotas?
20
II A.
Yes,
21
II
What did you tell them?
22
II A.
23
II that they can't do.
24
II
25
II should not ask for numbers, for numbers' sake?
Q.
Q.
Have you ever told supervisors under your command that they
I have.
I tell them whatever the law is at the time.
The things
Have you ever told supervisors under your command that they
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 99 of 235
D3m9flo3
Marino - cross
927
1
II A.
2
II
3
II Q.
4
II
5
II A.
6
II
file that they think they have to get numbers for numbers' sake
7
II
and it doesn't help anything.
8
II
9
II mean expired registration stickers or expired inspection
I've been saying that since day one irregardless of what
the law stated.
And why do you say that to commanding officers under your
command?
Because the perception sometimes is amongst the rank and
If I say I want you guys to write parkers,
I don't
10
II
11
II write some double parkers where they're selling drugs and the
12
II people are double parking their cars.
13
II
induce them not to come back.
14
II
you can't get down the block because there's a condition,
15
II
address that.
stickers that don't really do much.
16
But I would like you to
Maybe it will kind of
Or if you're coming to work and
Quality of life summonses.
Address the things that
17
II you wouldn't like in your neighborhood or for your family to
18
II have to live with.
19
II
20
II thing like they stop a car with tinted windows and give them
21
II four summonses, one for each window, and I'm done for the
22
II month.
23
II happening, people are getting hurt.
24
II
summons fro no seat belt, or on the cellphone, or speeding, or
25
II
improper turn, or failure to yield to a pedestrian.
If you're going to give moving summonses, don't do a
Make four good stops.
Go to where the accidents are
I'd rather see them write
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Because
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D3m9flo3
Marino - cross
928
1
II where I work now there's a lot of pedestrians that get rundown.
2
II
3
II
4
II patrol cop, if you talk about productivity or numbers, as we
5
II
keep saying, the numbers that they give are so low that it's
6
II
incumbent upon them to make sure that everything they did
7
II
actually go out and perform has a positive effect.
8
II
Q.
9
II did you -- I'm sorry.
It's a problem.
It's our job to fix this.
The simple truth of the matter is that the average
When you were the commanding officer of the 75th precinct
Were you involved with the community?
10
II A.
Yes, rna' am.
11
II
How were you involved with the community?
12
II A.
13
II
14
II You meet with elite clergy people.
15
II
sorry -- monthly precinct community council meetings where
16
II
everybody is invited to attend.
17
II
18
II early on in my tenure and asked them what they thought the
19
II priorities in the community were, the problems that they
20
II thought were the most important.
21
II we could remedy them.
22
II
23
II going to do this.
24
25
Q.
When you first go to a precinct you meet with all the
elected officials.
I
You meet with block association presidents.
And you have weekly -- I'm
also invited in elected officials and clergy people
We discussed between us how
Because you can't go into a community
and just say well I'm going to tell you how to live and I'm
When I was in the 77, there was a bad area.
II decided to go zero tolerance to fix it.
We
I invited all the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3m9flo3
Marino - cross
929
1
II
elected officials, all the community people in first because
2
II
I'm not going to subject them to that kind of thing unless they
3
II
all are on board and agree with it, and they were.
4
II
agreed that that was what was necessary.
5
II
of the decision process.
6
II
Q.
7
II
shown earlier, you testified I believe that officers pursuant
8
II
to Operations Order 52 are evaluated on effectiveness of
9
II
addressing conditions; is that correct?
10
II
A.
Yes, rna' am.
11
II
Q.
And I believe under Operations Order 52 you read some
12
II
portions of paragraph fifteen where it states that if officers
13
II
fail to address sector or post conditions and public safety
14
II
concerns after training, mentoring and hands-on instruction,
15
II
the officers could be placed in performance monitoring; is that
16
II
correct?
17
II
A.
Yes, ma'am.
18
II
Q.
Is that your understanding of the operations order?
19
II
A.
Yes.
20
II
Q.
Can you explain what your understanding is of how an
21
II
officer could fail to be effective at addressing conditions?
22
II
A.
23
II
24
II
area it's a known drug location, and they don't do anything
25
II
with it.
And they
They have to be part
Now moving on to the Operations Order 52 that you were
Yes, ma'am.
If you have a drug condition in your precinct, say an
And people are complaining that they're out there
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:08-cv-01 034-SAS-HBP Document 288
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93 o
Marino - cross
1
II
selling drugs,
2
II
street, they're playing loud radios and just generally causing
3
II
a problem and it's in the officer's sector and he does nothing
4
II
about it all month, he failed.
5
they're drinking beer, they're urinating in the
MS. PUBLICKER:
6
II
Your Honor, if I could have one
II minute.
7
He failed in that respect.
(Pause)
8
9
Thank you,
II
your Honor.
No further questions at this
time.
10
THE COURT:
Redirect or cross, whatever you want to
12
MR. MOORE:
Re-something.
13
THE COURT:
If it's that short.
14
MR. MOORE:
It's going to be short.
11
II
call it?
Just can I do it from here?
15
II REDIRECT EXAMINATION
16
II BY MR. MOORE:
17
II
Q.
18
II
75th precinct you reached out to the community, correct?
19
II A.
Yes.
20
II
As any good precinct commander would do,
21
II A.
Yes,
22
II
Q.
And for the five -- the precinct commander of the 75th for
23
II
five years,
24
II A.
25
II
Q.
Chief Marino,
Yes,
you said that when you became the CO of the
correct?
sir.
correct?
s i r - - I'm sorry, no, sir.
Three years, ten days,
18 hours.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
and
Case 1:08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 103 of 235
D3m9flo3
Marino - redirect
1
THE COURT:
2
THE WITNESS:
9 31
Where is that?
East New York.
75.
Three years, ten
3
II days, and 18 hours.
4
MR. MOORE:
You don't have it down to the minute?
5
THE COURT:
Excuse me.
6
THE WITNESS:
7
THE COURT:
8
THE WITNESS:
9
THE COURT:
10
75?
Yes, ma'am.
Did you mention earlier 77?
77.
Where is that?
THE WITNESS:
That's in Crown Heights also in Brooklyn
11
II North.
12
II BY MR. MOORE:
13
II Q.
14
II
15
II that your testimony?
16
II A.
17
II
18
II precinct I've worked in.
19
II
20
II would complain about what they believe to be suspicionless
21
II
stops and frisks taking place in the 75th precinct, correct
22
II
from time to time?
23
II A.
Yes, sir.
24
II Q.
And what would you do about that?
25
II A.
We would discuss it.
Is it your testimony that during that time no one in the
community came to you to complain about stop and frisk?
Is
They may have, sir.
That is always a concern and a complaint in any
Q.
So from time to time community leaders, community members
We have a dialogue about it and see
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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932
Marino - redirect
1
II
2
II mistakes and sometimes the community is mistaken.
3
II
4
II what happened, they actually go:
5
II good job.
6 II
if they were right or wrong, you know -- sometimes people make
they come in and complain about it.
Q.
Oh,
Sometimes
When I explain to them
you guys actually did a
Would you agree with me that communities like East New York
7
II
and Bed-Stuy and Crown Heights where there may be high
8
II
incidents of crime, that people in those communi ties want
9
II
officers deployed there to deal with those crime conditions?
10
II A.
Of course they do.
11
II Q.
And from time to time the police department sends extra
12
II
officers into those areas to deal with those crime conditions,
13
II
correct?
14
II A.
I don't know what you--
15
THE COURT:
16
THE WITNESS:
17
Sometimes police presence is increased.
They assign more police officers to the
precinct?
18
THE COURT:
19
THE WITNESS:
That's what he's asking.
Yes.
20
II
21
II time.
22
II A.
Oh,
23
II
And that -- and so members of the community want that to
24
II happen, correct?
25
II A.
Q.
Q.
Or to deal with a spike in conditions,
Yes,
yes,
sir,
say, to impact over
sir.
I believe they do.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3m9flo3
Marino - redirect
93 3
1
II
Q.
From your experience?
2
II
A.
I believe they do, yes, sir.
3
II
Q.
They don't want those officers to go into the community and
4
II do suspicionless stops and frisks though, do they?
5
II A.
I'm sorry?
6
II
Q.
They don't want those officers who they want deployed to
7
II
the community to come there and disregard the rights of the
8
II
people in that community with regard to stop and frisk,
9
II
They don't want that?
10
II
A.
11
II Q.
12
II
they don't want the officers coming in and stopping and
13
II
frisking every young black or Hispanic male, correct?
14
II
A.
right?
Nobody wants illegality, sir.
So even though they may not -- they may want more officers,
No.
15
That's correct.
MS. GROSSMAN:
Your Honor, it looks like there are a
16
II
few more questions.
17
II
THE COURT:
I have no trouble hearing him.
18
II
MR. MOORE:
Do you want me to stand
19
II
THE COURT:
No, you're doing fine.
Maybe Mr. Moore wants to take the podium.
Actually finishing would be good.
20
21
II
Q.
22
II
to the 75th precinct that the numbers were very low,
23
II
A.
Yes,
24
II
Q.
From time to time you see in precincts low numbers,
25
II
correct?
You also testified just now that you thought when you got
correct?
sir.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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D3m9flo3
Marino - redirect
93 4
1
II A.
I don't know about other precincts, sir.
2
II Q.
We'll speak about the 75th.
3
II
4
II placed within the precinct to increase those numbers?
5
II A.
I wouldn't call it pressure, sir, no.
6
II
What would you call it?
7
II A.
8
II weren't doing their jobs.
9
II Q.
So what would you call it?
10
II A.
I suggested to them that their efforts were not enough to
11
II
12
II needed to do more proactive policing to stop the crime.
13
II
14
II these numbers up or you're going to go to a different precinct
15
II
16
II A.
17
II
consequences.
18
II
Q.
19
II A.
That's right.
20
II
So pressure was put on officers to get their numbers up,
21
II right?
22
II A.
I don't know if you could call that pressure.
23
II
Q.
Well if you're a police officer and a deputy chief is
24
II
saying or an inspector is saying --
25
II A.
So, if you see low numbers is there not then pressure
Q.
Those numbers were so low they were almost stopped.
They
serve that community like they were being paid to and that they
Q.
You didn't just suggest that.
You said essentially get
or there's going to be changes, right?
Q.
I set a standard that said do your jobs or suffer the
That's right.
Or suffer the consequences, right?
The number.
SOUTHERN DISTRICT REPORTERS, P.C.
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1
II
2
II A.
The number I set was so low that I could do it in one day.
3
II
Okay.
4
II A.
5
II
anybody.
6
II
Q.
Q.
Q.
-- or deputy inspector is saying
And reasonably do it without hurting anybody or picking on
And did you do that when you went around for these months,
7 II did you make stops?
8
II A.
Yes,
9
II Q.
Did you make arrests?
10
II A.
Yes,
11
II
So if you saw the numbers were so low, you then made it
12
II very clear to the members of that precinct that they had to get
13
II
14
II A.
They had to do their jobs, yes.
15
II Q.
And that's when you began to set higher numerical goals,
16
II
17
II A.
Yes.
18
II
Now, you talked about CompStat.
19
II time when in your experience of CompStat that assembled members
20
II
of the police department have discussed whether in a particular
21
II
instance an officer had reasonable suspicion to stop somebody
22
II
or not?
23
II A.
24
II unreasonable or unnecessary or, you know, doing things just for
25
II numbers.
Q.
I did.
I did.
their numbers up,
correct?
correct?
Q.
Have there ever been a
Had that ever been discussed in your experience?
CompStat, yeah, they do discuss stopping -- not making
And that has been discussed, yes.
SOUTHERN DISTRICT REPORTERS, P.C.
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936
1
II Q.
But you've never done it with an actual 250 there,
2
II A.
Not that I recall, no.
3
II
Q.
And the focus -- would you agree with me that at CompStat
4
II
one of the things that's discussed when the focus is on a
5
II precinct is the number of arrests that are being done, correct,
6
II
7
II A.
8
Q.
9
correct?
in a period of time?
No.
Not just in the context for the number of arrests, no.
I'm not putting it in context.
I'm saying is there a
II discussion at CompStat about the number of arrests in a
10
II precinct?
11
II A.
In certain instances, yes.
12
II
And there's a discussion about the number of summonses as
13
II well, correct?
14
II A.
In certain instances, yes.
15
II
Have you ever been present when they talked about 250s,
16
Q.
Q.
saying
In certain instances?
comparing last year's numbers to this year's numbers
17
II to see if there's an increase or a decrease?
18
II A.
No.
19
II
That's never happened?
20
II A.
No.
21
II Q.
Now you talked about -- you answered some questions about
22
II
23
II arbitration, correct?
24
II A.
Yeah,
25
II
And you testified as a representative of the New York City
Q.
this arbitration, this grievance.
Q.
You testified at that
I did.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
II
2
II A.
Yes.
3
II
Q.
And the arbitrator ruled against the New York City Police
4
II
Department, correct?
5
II A.
Yes and no.
6
II
Q.
Well the arbitrator found that there was a quota system in
7
II
the 75th precinct?
8
II A.
Yes and no.
9
II
What do you mean yes or no?
Police Department, correct?
Q.
10
II A.
What makes a quota illegal is somebody being --
11
II
I'm not asking about illegal.
12
II A.
What makes
13
II
Q.
Arbitrator found that a quota system in the 75th precinct,
14
II
correct?
15
II A.
No.
16
II
I'll accept a yes and no.
Q.
Q.
17
I'm saying was there
Yes and no.
Did the city appeal that arbitration decision?
18
II A.
Didn't have to.
19
II
Did the city appeal that arbitration
Q.
THE COURT:
20
21
II
I guess the -- does that mean the answer
is no?
THE WITNESS:
22
No.
23
II
Q.
24
II
were setting their own quotas,
25
II A.
Now you said when you got to the 75th precinct the officers
it appeared to you, correct?
Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
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1
II
2
II A.
Yes.
3
II Q.
And that included what?
4
II A.
Movers, parkers, quality of life summonses.
5
II
How long had that quota system been in place in the 75th
6
II precinct?
7
II A.
I have no idea.
8
II Q.
For a long time though, correct?
9
II A.
I have no idea.
10
II Q.
Did you know whether the supervisors in the 75th precinct
11
II were aware of that quota system?
12
II A.
I have no idea.
13
II
Q.
Did you ask the departing CO whether -- anything about that
14
II
officer-imposed quota?
15
II A.
Nope.
16
II Q.
Did you ask -- did you discuss it with anybody in the 75th
17
II precinct?
18
II A.
They weren't open to discussion.
19
II Q.
Well, it's not likely that the officers could have a
20
II self-imposed five-a-month quota without their supervisors
21
II
22
II A.
One would assume.
23
II Q.
All you have to do is look at the reports, right?
24
II A.
One would assume.
25
II
If a commanding officer said that in an evaluation of a
Q.
Q.
Five a month?
knowing about it,
Q.
correct?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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employee
1
939
of an officer, that 50 percent of your evaluation
2
II
3
II would not be proper, would it?
4
II
A.
5
II
put a percentage on it.
is based on your numbers of arrests, summonses and 250s, that
It's part of the evaluation process.
6 II
Q.
50 percent.
7
II
A.
What's the officer doing?
8
II know.
9
II
I don't know if you
Q.
That wouldn't be proper, right?
What's his assignment?
I don't
He's a patrol officer.
10
II A.
11
II
12
II
evaluation.
13
II
Q.
14
II A.
I don't know.
15
II
Have you ever imposed a 50 percent rule when evaluating
16
II officers?
17
II A.
It's a large part.
What an officer does everyday is a large part of his
Q.
Is it 50 percent?
No.
No.
18
MR. MOORE:
19
I just want to go back to Exhibit 299.
Judge, I think that's all I have.
There was a
20
II
21
II of notice to the City of New York, that the city had notice of
22
II the entirety of the contents of Exhibit 299.
23
II think it goes to the issue of notice of the city as to the
24
II plaintiffs' Monell claim, I think it should be admitted into
25
II evidence.
stipulation made with the city, and this goes to the question
And because I
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
MS. GROSSMAN:
2
II
3
940
That's not what our agreement was but
II questions so that's.
the witness has testified that the NYPD asked him these
4
5
THE COURT:
that purpose, to look at what the city knew at that time.
II Because notice is an issue.
8
9
10
But he's saying the whole
II transcript is what constitutes notice, and I should read it for
6 II
7
Right.
MS. GROSSMAN:
That's not relevant, the whole
II transcript -- whatever it is that the witness has testified
II
to --
11
THE COURT:
It was only used here for impeachment.
Do
12
II you remember being asked this question and giving this answer?
13
II That's when I said it can't be admitted because we don't do
14
II that.
15
II record.
16
II
17
II
city is receiving this transcript at a certain time which shows
18
II
notice.
Now there's an different argument entirely, that the
MS. GROSSMAN:
19
20
We just have the question and answer read into the
It's not that we received it.
The
II police department asked the questions.
21
THE COURT:
Same idea.
Whatever it is, he's saying
22
II everything in that transcript is proof of notice of what the
23
II
24
II the Monell issues, when the city knew certain things.
25
city knew at a certain point in time.
MR. MOORE:
And that's important to
And they stipulated to it.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
That's why we
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9 41
1
II
redacted the whole thing and agreed to this whole procedure of
2
II
taking something out.
3
II
don't say they stipulated to it because I thought that's what
4
II
they stipulated to.
I'm quite shocked to hear that they
5
MS. GROSSMAN:
6
THE COURT:
What do you think they stipulated to
MR. MOORE:
That the entirety of the transcript would
7
II
again?
8
9
II
be admitted --
10
MS. GROSSMAN:
11
MR. MOORE:
12
II
THE COURT:
II
I've looked at it.
MS. BORCHETTA:
18
THE COURT:
II
It's very heavily
redacted.
17
19
Your Honor, it's the redacted version
of the transcript that's Exhibit 299.
15
16
With respect to the city having notice of
MS. BORCHETTA:
II
It was all for impeachment.
the entirety of the transcript.
13
14
That's definitely not what --
It's the entirety of that.
Where is this stipulation?
Is it in
e-mails or letters?
MS. BORCHETTA:
20
Your Honor, during the pre-- the
21
II
conference that we had right before the trial began about
22
II
various objections that the city had to our documents.
23
II court will remember, we had a break where we were able to talk.
THE COURT:
24
25
That's right.
You said we have nothing
II further.
SOUTHERN DISTRICT REPORTERS, P.C.
(212)
As the
805-0300
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D3m9flo3
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1
MS. BORCHETTA:
Yes.
942
We spoke with the city and
2
II agreed to make additional redactions to Exhibit 299 based on
3
II
the city's representation that they would agree to stipulate
4
II
that the city had notice on the date of the interview of the
5
II entirety of the unredacted contents of that interview.
6
MS. GROSSMAN:
7
THE COURT:
8
II problem.
9
II
That is not what was agreed to.
Well I wasn't there.
This is a real
What am I supposed to do, figure out who said what
and who I believe?
I don't want to do that.
10
Who were you negotiating with?
11
MS. BORCHETTA:
12
II
Your Honor,
I spoke with Ms. Grossman
about this.
13
THE COURT:
14
The city, obviously, had notice of anything in the
15
That's a very awkward thing.
transcript because as you said the city was
it's a city
16
II transcript.
17
II
18
II moment in time.
19
II when I said I wouldn't take it because I usually don't take if
20
II for impeachment.
21
22
The city was there.
limited purpose then of notice, what the city knew at that
It's a different purpose than a moment ago
MS. GROSSMAN:
II
Just so that the court notes, that this
is an ongoing matter, and it's related to another proceeding.
THE COURT:
23
So I'll take it for the
Be it as it may,
I'm only taking it for
24
II the limited purpose of notice; just what they're saying, as of
25
II
a certain date, the date of the transcript which is August 30,
SOUTHERN DISTRICT REPORTERS, P.C.
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1
II
2010, the city knew whatever it is in there that i t says,
2
II
the redacted transcript.
3
4
MS. GROSSMAN:
II
THE COURT:
II
So there
is no need to actually offer the transcript.
5
6
We would stipulate to that.
in
of.
I have to know what it is they had notice
It's in the transcript.
7
MS. GROSSMAN:
8
THE COURT:
No.
What was just discussed.
It's not just those questions and
9
II
answers.
10
II
they say makes up the notice.
11
II
purpose.
12
II
about impeachment.
13
II
guess so.
14
II
that limited purpose.
15
II
Are we done with the witness?
16
II
(Plaintiffs' Exhibit 299 received in evidence)
It's everything in the unredacted transcript that
I have to take it for that
It's completely different than the earlier argument
Okay.
I wouldn't have taken that.
All right.
17
THE COURT:
18
MS. PUBLICKER:
19
THE COURT:
But anyway.
I
So it's received as redacted for
Recross.
Actually just briefly.
Whatever it is.
20
II
RECROSS EXAMINATION
21
II
BY MS. PUBLICKER:
22
II
Q.
23
II Mr. Moore's statements about the arbitrator's decision?
24
II A.
25
II quota, was suffering a police officer to -- causing a police
Chief Marino, what did you mean by yes and no to
Reading the quota law what made a quota a quota,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
an illegal
Case 1:08-cv-01 034-SAS-HBP Document 288 Filed 05/30/13 Page 116 of 235
D3m9flo3
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'
944
1
officer to suffer a loss for failure to meet suddenly required
2
amount of moving or parking summonses within a specified
3
timeframe.
4
makes it illegal.
5
6
That's what makes a quota a quota.
None of the transfers were rescinded.
evaluations were changed.
7
That's what
None of the
Nothing happened as a result.
So because the arbitrator felt that while I set
8
numbers -- I did set specific numbers, and I did, and I
9
admitted that -- that nobody was punished or suffered any loss
10
as a result failure to meet those numbers or stating a quota
11
law.
12
effort.
But rather it was on a conglomeration of their entire
13
So the transfers were upheld.
No evaluation was
14
changed.
15
the judge said don't set numbers anymore.
16
17
And the legal bureau put something out right
afterwards, or deputy commissioner --
18
19
MR. MOORE:
I'm going to object to what the legal
bureau did, Judge.
20
21
Nothing happened as a result other than the fact that
THE WITNESS:
information.
Maybe the deputy commissioner of public
I'm sorry, counselor.
22
MR. MOORE:
23
THE WITNESS:
All right.
Fine.
That they felt that the fact that
24
nothing was taken back, it kind of flew in the face of illegal
25
quotas.
If it was illegal, something would have been remedied.
SOUTHERN DISTRICT REPORTERS, P.C.
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9 45
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D3m9flo3
1
II
2
II performance standard or they wouldn't be doing their job.
It wasn't.
And that commanders are expected to set a
MS. PUBLICKER:
3
Thank you,
Chief Marino.
4 II REDIRECT EXAMINATION
5
II BY MR. MOORE:
6
II
7
II testimony from you and several police officers, correct?
8
II A.
Yes,
9
II
And the arbitrator found that there was a quota in the 75th
Q.
Q.
Not to beat a dead horse.
But the arbitrator heard the
sir.
10
II precinct, yes or no?
11
II A.
But nobody was punished
12
II
The arbitrator found
Q.
13
THE COURT:
14
THE WITNESS:
15
THE COURT:
Yes or no.
Yes.
We're done.
16
II
17
Thank you.
II don't want to lose the time.
I know we won't do much of the next witness but I
18
MR. CHARNEY:
19
THE COURT:
I believe it's Captain Mascol.
We aren't going to get more than five
20
II minutes, but we'll do it.
21
II
22
II
called as a witness by the Plaintiffs,
23
II
having been duly sworn, testified as follows:
24
II
RAFAEL MASCOL,
(Continued on next page)
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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