Preview
FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023
EXHIBIT “K”
FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023
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0s- POLICE DEPARTMENT
^Newlork^
x
In the Matter of the Disciplinary Proceedings
- against - FINAL
Police Officer Josue Torres ORDER
Tax Registry No. 960031 OF
Housing PSA 4 DISMISSAL
x
Police Officer Josue Torres, Tax Registry No. 960031, having been served with written
notice, has been tried on written Charges and Specifications numbered 2020-22300 and 2022-
27204. as set forth on form P.D. 468-121, dated July 6. 2020 (amended on January 26. 2023),
and October 3. 2022. respectively, and after a review of the entire record. Respondent is found
Guilty.
Now therefore, pursuant to the powers vested in me by Section 14-115 of the
Administrative Code of the City of New York. I hereby DISMISS Police Officer Josue Torres
from the Police Service of the City of New York. z-.
POLICE COMMISSIONER
EFFECTIVE 3
COURTESY • PROFESSIONALISM • RESPECT
Website: http://nyc.gov/nypd
PO IM-16J (Hjr 12-on
FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023
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POLICE DEPARTMENT
flUe
Qtyr
^Newlork^
May 9. 2023
x
In the Matter of the Charges and Specifications Case Nos.
- against - 2020-22300
Police Officer Josue Torres 2022-27204
Tax Registry No. 960031
Housing PSA 4
x
At: Police Headquarters
One Police Plaza
New York. NY 10038
Before: Honorable Paul M. Gamble
Assistant Deputy Commissioner Trials
APPEARANCES:
For the Department: Christine McGrath, Esq.
Department Advocate's Office
One Police Plaza
New York. NY 10038
For the Respondent: Roger Blank, Esq.
136 Madison Avenue, 6th Floor
New York. NY 10016
To:
HONORABLE KEECH ANT L. SEWELL
POLICE COMMISSIONER
ONE POLICE PLAZA
NEW' YORK. NY 10038
COURTESY • PROFESSIONALISM • RESPECT
Website: http://nyc.gov/nypd
po (Rw 'j-an
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POLICE OFFICER JOSUE TORRES 2
CHARGES AND SPECIFICATIONS
Disciplinary Case No. 2020-22300
1. Police Officer Josue Torres, while assigned to the 34th Precinct, on or about July 1, 2020,
while off-duty, in Bronx County, New York, wrongfully engaged in conduct prejudicial
to the good order, efficiency, or discipline of the Department, to wit: said Police Officer
wrongfully engaged in a physical altercation with another person.
P.G. 203-10, Page 1, Paragraph 5 PUBLIC CONTACT –
PROHIBITED CONDUCT
2. Police Officer Josue Torres, while assigned to the 34th Precinct, on or about July 1, 2020,
while off-duty, in Bronx County, New York, wrongfully engaged in conduct prejudicial
to the good order, efficiency, or discipline of the Department, in that said Police Officer
knowingly acted in a manner likely to be injurious to the physical, mental, or moral
welfare of a child less than seventeen (17) years old.
P.G. 203-10, Page 1, Paragraph 5 PUBLIC CONTACT –
PROHIBITED CONDUCT
3. Police Officer Josue Torres, while assigned to the 34th Precinct, on or about and between
February 1, 2020, and July 1, 2020, wrongfully failed and neglected to follow
Department procedures for a change of his residential address.
P.G. 203-18, Page 1, Paragraph 2 RESIDENCE REQUIREMENTS
4. Police Officer Josue Torres, while assigned to the 34th Precinct, on or about June 14,
2020, intentionally damaged the property of an individual known to the Department
without permission or authority to do so. (As added and amended)
Penal Law § 145.00 CRIMINAL MISCHIEF IN THE
FOURTH DEGREE
Disciplinary Case No. 2022-27204
1. Police Officer Josue Torres, while assigned to the Queens Court Section on or about and
between September 22, 2022, and September 27, 2022, engaged in conduct prejudicial to
the good order, efficiency, and or discipline of the Department to wit: said Police Officer
Torres violated an active Criminal Court and Family Court Order of Protection by
sending electronic messages to an individual known to the Department which were
outside the scope of what is permitted in the Orders of Protection.
A.G. 304-06, Page 1, Paragraph 1 PROHIBITED CONDUCT
Penal Law § 215.50 (3) CRIMINAL CONTEMPT IN THE
SECOND DEGREE
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POLICE OFFICER JOSUE TORRES 3
REPORT AND RECOMMENDATION
The above-named member of the Department appeared before me on March 7 and 8,
2023. Respondent, through his counsel, entered a plea of Not Guilty to the subject charges. The
Department called Complainant 1 and Sergeant Barry Driscoll as witnesses. Respondent called
Lissette Torres and testified on his own behalf. A stenographic transcript of the trial record has
been prepared and is available for the Police Commissioner’s review. Having evaluated all of
the evidence in this matter, the Tribunal finds Respondent Guilty of the charged misconduct and
recommends that he be terminated.
ANALYSIS
Respondent's former girlfriend, with whom he shares two children, is Complainant in
these matters. They met in 2015 and began an on-again, off-again romantic relationship (T. 23-
25). Complainant testified that when her older son was six months old, she became pregnant
with their second son, and she noticed that Respondent’s attitude began to change. At the same
time, they were experiencing stress in their relationship caused by Respondent’s mother.
According to Complainant, Respondent became angrier, physically aggressive, and verbally and
emotionally abusive toward her (T. 24-25).
They moved into an apartment together in 2016 and cohabitated until September 2018,
when Respondent moved out because of his alleged infidelity; he returned after a few months to
assist Complainant with their sons, and they resumed living together until February 2020 (T. 25-
27, 171). Even after he moved out of the apartment for the second time, Respondent maintained
1
Complainant’s identity is known to the Tribunal. As a victim of alleged domestic violence, her name is omitted
from this memorandum.
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POLICE OFFICER JOSUE TORRES 4
keys to the apartment; his stepfather, however, had changed one of the locks after Respondent
became physically aggressive with Complainant (Id.).
Disciplinary Case No. 2020-22300
Complainant
Complainant testified that on or about June 14, 2020, Respondent called her so that he
could see his sons. He brought his stepfather with him to Complainant’s apartment, and they
took the boys back to his stepfather’s apartment in the same apartment complex. Respondent
then returned to Complainant’s apartment (T. 28-29).
Complainant testified that when Respondent returned to her apartment door, she did not
open it fully because she was afraid of him; she kept the chain on and spoke with him through
the opening. Respondent wanted to discuss the state of their relationship and his desire to move
back in. When she tried to shut the door, Respondent pushed against it, causing Complainant to
step back so it did not hit her face (T. 29-32).
Complainant testified that Respondent kicked in the door and chased her through the
apartment. She ran into the bathroom, closed the door, and pushed herself against it as he tried
to force himself in (T. 32-33). She stated that she called 911 and put the phone on speaker but
then hung up once Respondent stopped pushing on the door; she terminated the call because she
did not want to get him in trouble (T. 33-34). When she left the bathroom, she observed that the
apartment had been trashed; there was also a small dent in the door, and the chain had been
broken (T. 35; Dept. Ex. 1).
Complainant testified further that on July 1, 2020, she was at home with her sons when
Respondent arrived unannounced and requested to see the children. She was uncomfortable with
Respondent being there, so she did not open the door and called Respondent's stepfather (T. 39-
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40). Respondent returned with his stepfather and began arguing with Complainant about a
Facebook post he believed she had created; according to Respondent, the post mocked their
breakup and suggested she was seeing other men.
Complainant began to video record Respondent during their argument (Dept. Exs. 2A,
2B, and 2C). Complainant explained there are two separate recordings because she stopped
twice to call the police (T. 45-48). She testified that at the end of the second recording, she
Googled the nearest precinct and called that number – rather than 911 – because she wanted
Respondent to leave (T. 88-89).
During the argument, Complainant confronted him with kicking in her apartment door on
June 14, 2020; he responded, “Nobody was at the door” (Dept. Ex. 2C, p. 6). He later, in the
same conversation, apologized for kicking the door 2 (Id. at 31).
Complainant told Respondent that she asked him to call before visiting because, “You
don’t live here,” to which Respondent replied, “I’m not gonna give you the – I’m not gonna give
you, I’m not giving you – I’m not gonna give you shit” and “You owe me” (Id. at 33).
Respondent repeatedly told Complainant that “one of us will have to go;” Complainant
testified that because of this statement, she “felt threatened,” and she told him she “would never
leave [her] children” (T. 87). Respondent then told her, “Don't worry about it. I'll take care of
it.” 3 Complainant stated she “took it as a threat” (T. 88; Dept. Ex. 2C, p. 80-81).
Complainant testified that she called the 46th Precinct 4 from her bedroom, and when she
came out of her room, she saw Respondent had left the apartment (T. 89-90). Respondent's
2
Respondent denied in his testimony that he broke the chain on the door by kicking in the door, stating that he only
apologized to “pacify her” (T. 336-39).
3
Respondent testified that this statement meant one of them would have to be in charge of the children because he
thought he was “the better parent” (T. 340, 378).
4
I take judicial notice that Complainant’s residence is located in the 52nd Precinct.
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stepfather offered to take the boys; he ultimately went with Complainant’s older son, leaving the
younger son at the apartment with Complainant (T. 90).
Complainant testified that five or ten minutes after they left, she heard keys at her front
door and felt it was Respondent (T. 90-91). She explained she “jumped up to try to lock the door
before he was able to enter, [but she] didn’t make it” (T. 92). Complainant testified that
Respondent entered the apartment, began screaming that she had called the police and was going
to get him “jammed up,” and then grabbed her right wrist (Id.). She attempted to pull away from
him, but Respondent pulled her up by her arm, then threw her on the floor (T. 93). She stated
she was “terrified because of the look on his face,” and described Respondent as “a statue. There
was like nothing. It was like he checked out. It was spooky” (T. 94). She testified that while
she was on the ground, Respondent “slam[med] [her] on to the floor three times”: the first two
times, her back hit the floor first, and the third time, she “must have twisted in some way, and
[she] hit the left side of [her] face” (Id.).
Complainant testified that their younger son was in the same room during this altercation;
she knew he was to the left of her because he started screaming (T. 94-95). She stated that
Respondent “maybe … snapped back to reality” when their son began screaming; as Respondent
walked toward their son, Complainant seized the opportunity to get away (T. 95). She ran
toward the couch, where her phone was charging, but, before she could reach it, Respondent
grabbed her by her right wrist again, spun her around, and began to slam her into the couch (Id.).
She testified that Respondent held both of her wrists in his hands and began to use her own hands
to “pound down on [her]” (T. 96). One of her fists punched her in the mouth, bursting her lip; as
this occurred, their son was on the other side of the couch cushion screaming (Id.).
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Complainant testified that Respondent let her go when he received a phone call from his
mother, and she started to scream for help when she realized that it was her on the phone (T. 96-
97). She testified that Respondent then grabbed her by her face, covered her mouth, and told her
to “shut the fuck up” several times (T. 97). She heard him receive a second phone call, then
heard him walk away and the apartment door slam (Id.). Complainant remained on the floor
until police arrived, while her son attempted to comfort her (T. 98). She explained she felt
“shocked” and “terrified” about what happened (Id.).
As a result of the altercation with Respondent, Complainant had swelling to the left side
of her face, a burst lip, bruises around her neck, two “giant circular bruises on [her] chest,” and
an injury to her left hand (T. 109; Dept. Exs. 4A-4E, 5A-5F, 7). That same day, she sought
medical treatment at St. Barnabas Hospital, where she underwent medical testing, including an
MRI, a CAT scan, and an X-ray on her left hand (T. 126; Dept. Ex. 8).
Complainant testified that approximately two or three weeks later, her younger son was
showing signs of aggressive behavior and was observed by her mother to take his “life-sized doll
and punch it and hit it on the floor” (T. 135). Complainant stated that she watched him a few
days later take that same toy, straddle it, slam it into the floor, and hit it (Id.).
Sergeant Barry Driscoll
Sergeant Barry Driscoll testified that on July 1, 2020, he was the Patrol Supervisor in the
52nd Precinct (T. 275-76). He testified that he responded to Complainant’s residence at the
request of the two responding police officers, Police Officers Astraya and Campoverde (T. 276).
When he arrived there, he observed an adult assuming care for Complainant’s son so that she
could be interviewed without the child present (T. 277).
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Sergeant Driscoll testified that Complainant told him Respondent, her ex-boyfriend, had
been at her apartment earlier that morning. They had an argument in which Respondent shouted
at her and threatened her. Respondent's stepfather witnessed this interaction. Respondent
eventually left the apartment, and Complainant called the precinct to make a complaint for
harassment. Respondent then returned to the apartment and was upset that Complainant had
called the police (T. 277).
Complainant informed Sergeant Driscoll that Respondent grabbed Complaint by her
arms, forced her to the ground, and struck her face and neck with her own hands; he was also
slamming her body and the back of her head on the floor. Complainant stated that one of her
children was present during this altercation and that when she attempted to call 911, Respondent
again grabbed her by her arms and shook her while she was on the floor (T. 278).
Sergeant Driscoll testified that Complainant was upset and short of breath as she related
these events to him; she also told him that she did not feel safe and that she “didn’t want to do
this anymore” (T. 278). He testified that he observed injuries to the left side of her neck and the
lower part of her face (T. 279). He testified that Department’s Exhibits 4A through 4E were fair
and accurate representations of the injuries he observed when he first saw Complainant on July
1, 2020 (Id.). Sergeant Driscoll also testified that he interviewed Respondent at the apartment;
according to Driscoll, Respondent asked him if he could “tell his side of the story” (T. 279-80).
Respondent then told Sergeant Driscoll that he and Complainant had argued that
morning, that he had gone to her apartment straight from work and had not been drinking. He
explained further that Complainant felt safer with his stepfather present, although he and his
stepfather “do not communicate well.” Respondent stated that the argument escalated and that
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he eventually returned to the apartment, confronting Complainant about why she called the
police, knowing that it could affect his job (T. 280).
During this interaction, Sergeant Driscoll testified that Respondent’s demeanor was
primarily calm but that he seemed somewhat upset. He did not observe any physical injuries on
Respondent, and Respondent did not complain of any injuries. After speaking with Respondent,
Sergeant Driscoll re-interviewed Complainant and directed the responding police officers to take
photographs of her injuries. He then placed Respondent under arrest for Assault in the Third
Degree; Sergeant Driscoll and his operator, Police Officer McCormack, transported him to the
precinct for arrest processing (T. 281-82).
Hospital Records
The hospital records admitted in evidence show that the triage nurse observed “right side
of upper lip abrasion and ecchymosis on left side of neck; abrasion on inside right upper lip.” In
the narrative section of the intake report, Complainant stated, "I was attacked." The report noted,
“Ex-boyfriend assaulted her in her apartment and used her own hands to hit her, and she
remembers hitting her head and face on the ground/wall at least three times.”
The report further documented the “Chief complaint: per EMS, s/p assault by ex-
boyfriend with pain in her left chin, back of the head and scratch to neck.”
The Emergency Department evaluation noted,
“s/p assault with left facial pain. Was assaulted by ex-boyfriend, states, ‘He used my
head like a basketball,’ and hit her in the head several times with her own hands, forced
her on the ground, and hit her left side of the face onto the ground. Pain mostly at the left
side of face, non-radiating, achy, worse with palpation and opening/closing of mouth, has
not tried anything for it. Admits to some pain of eyes when light is shined in it. Admits
to diffuse headache, non-radiating, not worse or better with anything. Denies any vision
changes, no n/v 5, no abdominal pain, no numbness/tingling/weakness, no cp 6, no sob 7”
5
Nausea vomiting.
6
Chest pain
7
Shortness of breath
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POLICE OFFICER JOSUE TORRES 10
The hospital records also detailed the physical examination which was performed on
Complainant:
“Physical exam Head: noted edema and tenderness of the L mandibular region, TTP
(thrombotic thrombocytopenia purpura), no obvious deformities, no battle signs b/l, no
raccoon eyes b/l. Ext: No clubbing, edema, cyanosis. Noted TTP of the L wrist, no
obvious ecchymosis/erythema/obvious deformities.”
The medical diagnosis and treatment plan were also detailed in the records:
“Initial impression and E.D. action plan: 36 yo F without reported pmhx 8 presenting s/p
assault. VSS 9 currently. Physical exam shows TTP of left mandible, ecchymosis in
pattern described above, concern for maxfac fracture, and TTP of the L wrist, concern for
wrist fracture. Does not meet criteria for Head CT at this time by the Canadian Head CT
criteria. Plan: maxfac C.T., L hand/wrist x-ray, Tylenol, Robaxin 10, reassess.”
(Dept. Ex. 8).
Lisette Torres
Lisette Torres testified that she is Respondent's mother and a retired Member of Service.
She called him twice on July 1, 2020 (T. 325). In the first call, she asked Respondent if he was
okay, and he responded, “She's going crazy; I don't know what's wrong with her” (T. 326).
Torres recalled hearing Complainant's voice yelling in the background (T. 326-327). According
to Torres, Respondent asked Complainant, “Why are you yelling?” (T. 327). The call lasted less
than a minute before she hung up (T. 328).
Torres denied that she had any video conversation with Complainant that day and did not
see her until Complainant returned from the hospital (Id.).
Torres testified that she had a second telephone conversation with Respondent to
determine if “the police were there.” She advised him to return to Complainant’s apartment
8
Past medical history.
9
Vital signs stable.
10
Robaxin is a muscle relaxer.
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POLICE OFFICER JOSUE TORRES 11
because if he did not return, he could be disciplined for leaving the scene of an incident (T. 324-
25).
Respondent
Respondent testified that he went to Complainant’s apartment on July 1, 2020, to see his
sons, but she refused to permit him to enter because she did not feel safe and wanted to wait until
his stepfather arrived (T. 334). He acknowledged that once his stepfather came, he entered the
apartment with him, and the three adults had a conversation (T. 335-36).
While he further acknowledged hearing himself on Department’s Exhibit 2A apologize
for kicking in Complainant's door on June 14, 2020, he claimed that he never kicked the door in,
and he only apologized to placate Complainant (T. 336, 339). He further explained that when he
said, “one of us has to go,” he meant that someone would have to be in charge of the children
because he “was the primary caretaker. At the time, I did everything with the boys. I took them
to school; I paid for everything. I paid for their education, groceries and, you know, took them to
doctor’s appointments, and unfortunately, we – no matter how hard I tried, we just could not
come to any sort of agreement as far as anything pertaining to the boys” (T. 340).
Respondent testified that he overheard Complainant calling someone and stating, “It’s not
an emergency,” which led him to suspect she had called the police (Id. at 393). He testified
further that while he did not recall Complainant asking him to leave her apartment, his stepfather
suggested that he leave, and he did so (T. 341, 393). Once he left the building, he called his
mother, related to what had transpired in the apartment, and shared his concern that Complainant
had called the police (T. 341-42). According to Respondent, his mother told him that if the
police had been called, he should return to the apartment (T. 342).
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Respondent testified that he returned to the apartment and let himself in with his key;
when he saw Complainant, he asked her if his stepfather was there (Id.). According to
Respondent, Complainant “kind of speed walk[ed] toward [him]” and became “extremely
belligerent, erratic” (T. 343, 383). He stated that he tried to calm her down, and she started
swinging her arms, so he tried to restrain her, and he believed she hit herself in the face (T. 343,
383). He claimed he restrained her by grabbing her wrists (T. 384). Respondent testified that his
son was in the room with them as this incident was happening and that he was crying (Id.). He
stated that he received a phone call from his mother and that Complainant began screaming, so
he asked her, “Yo, why you screaming?” (T. 345).
He testified on cross-examination that he was holding his son while on the phone; he then
put his son down and left him in the apartment with Complainant when he heard the bell ring
before going to open the door to the building for the police (T. 386).
Credibility
In credibility assessments, the trier of fact should consider a wide range of factors,
including, but not limited to, witness demeanor, corroborating evidence, the consistency of a
witness account both at trial and over time, the degree to which the witness is interested in the
outcome of a case, the potential prejudice or bias of the witness, and perhaps most basically the
degree to which the witness accounts are logical and comport with common sense and general
human experience.
An overlay to this dynamic is the complexity of assessing allegations of assaults by an
intimate partner. However, the finder of fact must always weigh the emotional complications of
bringing such charges against Respondent's due process right to have all evidence suggesting that
the incident did not occur fairly evaluated and considered. The most crucial factor for the
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Tribunal to consider is the individual motivations of the parties to provide truthful information.
When placed in proper context, the behaviors of the parties before and after the incident in
question may also reveal evidence relevant to a credibility assessment.
Sergeant Barry Driscoll is a credible, disinterested witness who testified as an
investigator and collector of evidence.
Based upon the totality of the circumstances, I find Complainant’s testimony credible.
I had the opportunity to observe her demeanor as she testified before this Tribunal over the better
part of a trial day. It is my judgment that she was logical, forthcoming, and consistent.
As the mother of two of Respondent’s children, she has an arguable interest in the
outcome of this proceeding, as it could well affect Respondent’s ability to provide financial
support. In this case, however, the accusatory nature of her allegations operates against such
interest, which is indicia of her veracity.
Counsel for Respondent attempted to diminish Complainant’s credibility by highlighting
her profession as an actor, suggesting that she could feign emotion during her testimony and in
the statements she made to police immediately after the alleged assault. He also argued that
Complainant was making a false accusation against Respondent to have his parental rights
terminated so that she could relocate to California, where the bulk of her family resides. Finally,
counsel confronted Complainant with allegedly false statements she made on a housing
application, which he contended mischaracterized her relationship with Respondent.
I have considered the above issues and factored them into my credibility assessment. In
the view of this Tribunal, any concerns counsel raised about Complainant’s credibility were
allayed by: (1) the extensive corroboration of her injuries, as documented in Department’s
Exhibits 4A-4E and 8, and Sergeant Driscoll’s testimony; (2) her demeanor before and after the
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POLICE OFFICER JOSUE TORRES 14
alleged assault on July 1, 2020, as captured in Department’s Exhibits 2A, 2B and 3A; (3)
Respondent’s demeanor and language immediately before the July 1, 2020, alleged assault, as
captured on Department’s Exhibits 2A and 2B; and (4) the evidence of Respondent’s violent acts
on June 14, 2020, as described in her testimony and Department’s Exhibit 1.
In contrast, Respondent’s testimony before this Tribunal was self-serving, illogical, and
unworthy of belief. At times, he attempted to reframe some of his actions on July 1, 2020, in a
manner later undermined by independent evidence. On other occasions, he was evasive when
the answer to a question might tend to undercut his position at trial.
For example, Respondent testified that after his altercation with Complainant, he left the
apartment and went downstairs to let the police into the building because the buzzer for the front
door was usually broken (T. 345). The video evidence in Department’s Exhibit 3A shows Police
Officer Astraya and others being buzzed into the building, then encountering Respondent
standing in the lobby. Respondent allowed the police officers to walk past him without
identifying himself, then entered the elevator with them. The video shows that only after he
learned which floor they were going to did he identify himself as a police officer (Dept. Ex. 3A,
T. 387-91).
Respondent also denied having any recollection of speaking to the police officers outside
Complainant’s apartment (T. 399-400). I note that he was cross-examined on this point after
Sergeant Driscoll, who was one of the police officers who responded to her apartment, testified
on the Department’s direct case (T. 280-81). Driscoll testified credibly that Respondent
approached him and asked to “tell his side of the story” (T. 280). After being confronted with
Department’s Exhibit 3C, Respondent conceded that he admitted to the police officers that he
“had not been nice” to Complainant (T. 402).
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POLICE OFFICER JOSUE TORRES 15
I further find that his testimony regarding the manner in which Complainant sustained her
injuries was a false narrative designed to avoid responsibility for the injuries which the credible,
relevant evidence establishes overwhelmingly that he caused.
Lisette Torres has a presumptive bias as Respondent’s mother; her relationship with
Complainant may provide a secondary, but related, basis to scrutinize her testimony for potential
bias. Despite these concerns, she offered some testimonial evidence that was logical and
corroborative of the Department Advocate's case. The issues for which Respondent’s counsel
offered her testimony (i.e., to deny that she and Respondent were estranged at the time of the
July 1, 2020, incident; and to deny that she had engaged in a supposed video call with Torres on
July 1), were tangential to the material issues in this case.
Specification 1: Wrongfully Engaged in a Physical Altercation
I find that the Department has met its burden by a preponderance of the credible, relevant
evidence that Respondent engaged in a physical altercation with Complainant.
As stated above, the Tribunal credits Complainant’s testimony regarding the events on
July 1, 2020. The testimonial evidence, audio recordings, photographs of the injuries, and
medical records, establish that Complainant was the victim of physical violence at the hands of
Respondent.
Complainant made a prompt outcry immediately after the assault. The video evidence
shows that she was visibly upset when she answered her door and immediately told the police
officers, “He came back and attacked me,” pointed at Respondent, and stated, “That's the father
of my kids” (Dept. Ex. 3A at 03:29-03:36). This declaration qualifies as an excited utterance, a
firmly-rooted exception to the hearsay rule, which, by its nature, is deemed trustworthy. All of
the surrounding circumstances support a finding that Complainant spoke spontaneously while
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POLICE OFFICER JOSUE TORRES 16
under the influence of a startling event and did not have time for reflection or design.
Complainant’s subsequent statements to Sergeant Driscoll, the hospital staff, and her testimony
before this Tribunal, were all consistent with this excited utterance. As discussed above in the
credibility analysis, independent evidence extensively corroborates Complainant's testimony.
In contrast, Respondent’s account of the events was illogical and self-serving.
Nevertheless, his testimony contained admissions that further corroborated Complainant's
testimony.
He admitted that during the altercation, he had Complainant’s wrists in his hands,
corroborating her assertion that he held her in that manner. He conceded that Complainant was
punched in the face with her own hands, although he denied that he used her hands to hit her,
instead claiming that the punches were self-inflicted. He also admitted that he received a
telephone call from his mother during the altercation and that during the call, Complainant was
screaming. This admission corroborates Complainant’s testimony regarding the call from his
mother.
His characterization of Complainant’s demeanor as erratic and belligerent is a more
appropriate description of his own demeanor, beginning with his initial verbal altercation with
Complainant on July 1, 2020. I find that Respondent was angry at Complainant during the
argument which preceded the assault and was told by Complainant and his stepfather several
times to stop yelling (See Dept. Exs. 2A, 2B).
For example, after Complainant told Respondent that she did not want to be with him,
Respondent stated, “One of us has to fucking go . . . One of us will go . . . I am not going to raise
my kids separate.” When Complainant replies that she will never lose her children, Respondent
answers, “Okay.” When Complainant asks, “Okay, what?” Respondent states, “Don’t worry
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POLICE OFFICER JOSUE TORRES 17
about it” (Dept. Ex. 2C, p. 80). Later on in the same recording, Complainant told Respondent he
was being “controlling” and that he “cannot do nothing by force,” to which Respondent stated, “I
am not going to accept that” (Dept. Ex. 2C, p. 109).
I find that these statements are objectively threatening and indicate Respondent’s refusal
to accept that Complainant did not want a relationship with him. He also made unequivocal
statements that he intended to secure custody of his children even if that meant that she would
somehow cease to be a consideration in the custody arrangement, whatever that portended.
Respondent's aggrieved but inflexible state of mind is circumstantial evidence supporting a
finding that he later re-entered Complainant’s apartment by force and physically assaulted her.
Respondent’s other claims that Complainant punched herself in the face and that he was
trying to restrain her strain credulity and are contrary to common sense. Complainant’s
testimony that Respondent took her hands into his own, then punched her in her face, using her
own hands, is too bizarre to be the result of her fabrication. Furthermore, if Respondent honestly
thought Complainant was “erratic and belligerent” and that he never touched her, it does not
make sense that he would leave his son alone with her if she attempted to injure herself in his
presence, as he claimed.
I further find that Respondent’s actions were prejudicial to this Department’s good order,
efficiency, and discipline. The evidence, in this case, establishes convincingly that Respondent’s
actions on July 1, 2020, were motivated by his anger at Complainant for having the audacity to
refuse his request to resume a relationship with him and for calling the police.
First, Complainant had the right to decline a relationship with Respondent, especially one
in which she had reason to feel unsafe. The tenor of his comments recorded in Department’s
Exhibit 1 communicates to any objective listener that he had no concern for what Complainant
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POLICE OFFICER JOSUE TORRES 18
wanted and that, in his mind, his desires were paramount. This mindset is incompatible with
providing the selfless service members of this Department are called upon to render daily.
Second, Respondent later physically attacked Complainant, enraged that she had called
the police. This Department stands ready 24 hours a day to assist citizens in distress; it is
shocking that a Member of Service administered a retributive beating to Complainant for
reaching out to the agency, of which he is a part, tasked with assisting in such difficult
circumstances.
Accordingly, I find Respondent Guilty of Specification 1.
Specification 2: Endangering the Welfare of a Child
I find that the Department has met its burden by a preponderance of the credible, relevant
evidence that Respondent wrongfully engaged in conduct prejudicial to the good order,
efficiency, or discipline of the Department, in that said Police Officer knowingly acted in a
manner likely to be injurious to the physical, mental, or moral welfare of a child less than
seventeen (17) years old.
It is not in dispute that the Respondent’s younger son, who was days from turning three,
was present during the July 1, 2020, physical altercation with Complainant. Respondent
admitted in his trial testimony that he was in the apartment with Complainant and their younger
son when she supposedly initiated a confrontation. As outlined in the analysis of Specification 1,
I have found that it was he who initiated a physical altercation with Complainant and assaulted
her in front of their son. In Department’s Exhibit 3A, the son is seen with Complainant at the
door of her apartment while she is speaking with the police after the incident. Finally, I find that
assaulting a child’s mother in that child’s presence is likely detrimental to his mental welfare.
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POLICE OFFICER JOSUE TORRES 19
While I permitted Complainant to testify that she observed her younger son displaying
aggressive behavior toward a stuffed animal sometime after the assault, I did not consider that as
evidence that the child had suffered mental harm.
Accordingly, I find Respondent Guilty of Specification 2.
Specification 3: Failure to Change Address
I find that the Department has met its burden by a preponderance of the
Preview
FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 EXHIBIT “K” FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 0s- POLICE DEPARTMENT ^Newlork^ x In the Matter of the Disciplinary Proceedings - against - FINAL Police Officer Josue Torres ORDER Tax Registry No. 960031 OF Housing PSA 4 DISMISSAL x Police Officer Josue Torres, Tax Registry No. 960031, having been served with written notice, has been tried on written Charges and Specifications numbered 2020-22300 and 2022- 27204. as set forth on form P.D. 468-121, dated July 6. 2020 (amended on January 26. 2023), and October 3. 2022. respectively, and after a review of the entire record. Respondent is found Guilty. Now therefore, pursuant to the powers vested in me by Section 14-115 of the Administrative Code of the City of New York. I hereby DISMISS Police Officer Josue Torres from the Police Service of the City of New York. z-. POLICE COMMISSIONER EFFECTIVE 3 COURTESY • PROFESSIONALISM • RESPECT Website: http://nyc.gov/nypd PO IM-16J (Hjr 12-on FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE DEPARTMENT flUe Qtyr ^Newlork^ May 9. 2023 x In the Matter of the Charges and Specifications Case Nos. - against - 2020-22300 Police Officer Josue Torres 2022-27204 Tax Registry No. 960031 Housing PSA 4 x At: Police Headquarters One Police Plaza New York. NY 10038 Before: Honorable Paul M. Gamble Assistant Deputy Commissioner Trials APPEARANCES: For the Department: Christine McGrath, Esq. Department Advocate's Office One Police Plaza New York. NY 10038 For the Respondent: Roger Blank, Esq. 136 Madison Avenue, 6th Floor New York. NY 10016 To: HONORABLE KEECH ANT L. SEWELL POLICE COMMISSIONER ONE POLICE PLAZA NEW' YORK. NY 10038 COURTESY • PROFESSIONALISM • RESPECT Website: http://nyc.gov/nypd po (Rw 'j-an FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 2 CHARGES AND SPECIFICATIONS Disciplinary Case No. 2020-22300 1. Police Officer Josue Torres, while assigned to the 34th Precinct, on or about July 1, 2020, while off-duty, in Bronx County, New York, wrongfully engaged in conduct prejudicial to the good order, efficiency, or discipline of the Department, to wit: said Police Officer wrongfully engaged in a physical altercation with another person. P.G. 203-10, Page 1, Paragraph 5 PUBLIC CONTACT – PROHIBITED CONDUCT 2. Police Officer Josue Torres, while assigned to the 34th Precinct, on or about July 1, 2020, while off-duty, in Bronx County, New York, wrongfully engaged in conduct prejudicial to the good order, efficiency, or discipline of the Department, in that said Police Officer knowingly acted in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen (17) years old. P.G. 203-10, Page 1, Paragraph 5 PUBLIC CONTACT – PROHIBITED CONDUCT 3. Police Officer Josue Torres, while assigned to the 34th Precinct, on or about and between February 1, 2020, and July 1, 2020, wrongfully failed and neglected to follow Department procedures for a change of his residential address. P.G. 203-18, Page 1, Paragraph 2 RESIDENCE REQUIREMENTS 4. Police Officer Josue Torres, while assigned to the 34th Precinct, on or about June 14, 2020, intentionally damaged the property of an individual known to the Department without permission or authority to do so. (As added and amended) Penal Law § 145.00 CRIMINAL MISCHIEF IN THE FOURTH DEGREE Disciplinary Case No. 2022-27204 1. Police Officer Josue Torres, while assigned to the Queens Court Section on or about and between September 22, 2022, and September 27, 2022, engaged in conduct prejudicial to the good order, efficiency, and or discipline of the Department to wit: said Police Officer Torres violated an active Criminal Court and Family Court Order of Protection by sending electronic messages to an individual known to the Department which were outside the scope of what is permitted in the Orders of Protection. A.G. 304-06, Page 1, Paragraph 1 PROHIBITED CONDUCT Penal Law § 215.50 (3) CRIMINAL CONTEMPT IN THE SECOND DEGREE FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 3 REPORT AND RECOMMENDATION The above-named member of the Department appeared before me on March 7 and 8, 2023. Respondent, through his counsel, entered a plea of Not Guilty to the subject charges. The Department called Complainant 1 and Sergeant Barry Driscoll as witnesses. Respondent called Lissette Torres and testified on his own behalf. A stenographic transcript of the trial record has been prepared and is available for the Police Commissioner’s review. Having evaluated all of the evidence in this matter, the Tribunal finds Respondent Guilty of the charged misconduct and recommends that he be terminated. ANALYSIS Respondent's former girlfriend, with whom he shares two children, is Complainant in these matters. They met in 2015 and began an on-again, off-again romantic relationship (T. 23- 25). Complainant testified that when her older son was six months old, she became pregnant with their second son, and she noticed that Respondent’s attitude began to change. At the same time, they were experiencing stress in their relationship caused by Respondent’s mother. According to Complainant, Respondent became angrier, physically aggressive, and verbally and emotionally abusive toward her (T. 24-25). They moved into an apartment together in 2016 and cohabitated until September 2018, when Respondent moved out because of his alleged infidelity; he returned after a few months to assist Complainant with their sons, and they resumed living together until February 2020 (T. 25- 27, 171). Even after he moved out of the apartment for the second time, Respondent maintained 1 Complainant’s identity is known to the Tribunal. As a victim of alleged domestic violence, her name is omitted from this memorandum. FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 4 keys to the apartment; his stepfather, however, had changed one of the locks after Respondent became physically aggressive with Complainant (Id.). Disciplinary Case No. 2020-22300 Complainant Complainant testified that on or about June 14, 2020, Respondent called her so that he could see his sons. He brought his stepfather with him to Complainant’s apartment, and they took the boys back to his stepfather’s apartment in the same apartment complex. Respondent then returned to Complainant’s apartment (T. 28-29). Complainant testified that when Respondent returned to her apartment door, she did not open it fully because she was afraid of him; she kept the chain on and spoke with him through the opening. Respondent wanted to discuss the state of their relationship and his desire to move back in. When she tried to shut the door, Respondent pushed against it, causing Complainant to step back so it did not hit her face (T. 29-32). Complainant testified that Respondent kicked in the door and chased her through the apartment. She ran into the bathroom, closed the door, and pushed herself against it as he tried to force himself in (T. 32-33). She stated that she called 911 and put the phone on speaker but then hung up once Respondent stopped pushing on the door; she terminated the call because she did not want to get him in trouble (T. 33-34). When she left the bathroom, she observed that the apartment had been trashed; there was also a small dent in the door, and the chain had been broken (T. 35; Dept. Ex. 1). Complainant testified further that on July 1, 2020, she was at home with her sons when Respondent arrived unannounced and requested to see the children. She was uncomfortable with Respondent being there, so she did not open the door and called Respondent's stepfather (T. 39- FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 5 40). Respondent returned with his stepfather and began arguing with Complainant about a Facebook post he believed she had created; according to Respondent, the post mocked their breakup and suggested she was seeing other men. Complainant began to video record Respondent during their argument (Dept. Exs. 2A, 2B, and 2C). Complainant explained there are two separate recordings because she stopped twice to call the police (T. 45-48). She testified that at the end of the second recording, she Googled the nearest precinct and called that number – rather than 911 – because she wanted Respondent to leave (T. 88-89). During the argument, Complainant confronted him with kicking in her apartment door on June 14, 2020; he responded, “Nobody was at the door” (Dept. Ex. 2C, p. 6). He later, in the same conversation, apologized for kicking the door 2 (Id. at 31). Complainant told Respondent that she asked him to call before visiting because, “You don’t live here,” to which Respondent replied, “I’m not gonna give you the – I’m not gonna give you, I’m not giving you – I’m not gonna give you shit” and “You owe me” (Id. at 33). Respondent repeatedly told Complainant that “one of us will have to go;” Complainant testified that because of this statement, she “felt threatened,” and she told him she “would never leave [her] children” (T. 87). Respondent then told her, “Don't worry about it. I'll take care of it.” 3 Complainant stated she “took it as a threat” (T. 88; Dept. Ex. 2C, p. 80-81). Complainant testified that she called the 46th Precinct 4 from her bedroom, and when she came out of her room, she saw Respondent had left the apartment (T. 89-90). Respondent's 2 Respondent denied in his testimony that he broke the chain on the door by kicking in the door, stating that he only apologized to “pacify her” (T. 336-39). 3 Respondent testified that this statement meant one of them would have to be in charge of the children because he thought he was “the better parent” (T. 340, 378). 4 I take judicial notice that Complainant’s residence is located in the 52nd Precinct. FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 6 stepfather offered to take the boys; he ultimately went with Complainant’s older son, leaving the younger son at the apartment with Complainant (T. 90). Complainant testified that five or ten minutes after they left, she heard keys at her front door and felt it was Respondent (T. 90-91). She explained she “jumped up to try to lock the door before he was able to enter, [but she] didn’t make it” (T. 92). Complainant testified that Respondent entered the apartment, began screaming that she had called the police and was going to get him “jammed up,” and then grabbed her right wrist (Id.). She attempted to pull away from him, but Respondent pulled her up by her arm, then threw her on the floor (T. 93). She stated she was “terrified because of the look on his face,” and described Respondent as “a statue. There was like nothing. It was like he checked out. It was spooky” (T. 94). She testified that while she was on the ground, Respondent “slam[med] [her] on to the floor three times”: the first two times, her back hit the floor first, and the third time, she “must have twisted in some way, and [she] hit the left side of [her] face” (Id.). Complainant testified that their younger son was in the same room during this altercation; she knew he was to the left of her because he started screaming (T. 94-95). She stated that Respondent “maybe … snapped back to reality” when their son began screaming; as Respondent walked toward their son, Complainant seized the opportunity to get away (T. 95). She ran toward the couch, where her phone was charging, but, before she could reach it, Respondent grabbed her by her right wrist again, spun her around, and began to slam her into the couch (Id.). She testified that Respondent held both of her wrists in his hands and began to use her own hands to “pound down on [her]” (T. 96). One of her fists punched her in the mouth, bursting her lip; as this occurred, their son was on the other side of the couch cushion screaming (Id.). FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 7 Complainant testified that Respondent let her go when he received a phone call from his mother, and she started to scream for help when she realized that it was her on the phone (T. 96- 97). She testified that Respondent then grabbed her by her face, covered her mouth, and told her to “shut the fuck up” several times (T. 97). She heard him receive a second phone call, then heard him walk away and the apartment door slam (Id.). Complainant remained on the floor until police arrived, while her son attempted to comfort her (T. 98). She explained she felt “shocked” and “terrified” about what happened (Id.). As a result of the altercation with Respondent, Complainant had swelling to the left side of her face, a burst lip, bruises around her neck, two “giant circular bruises on [her] chest,” and an injury to her left hand (T. 109; Dept. Exs. 4A-4E, 5A-5F, 7). That same day, she sought medical treatment at St. Barnabas Hospital, where she underwent medical testing, including an MRI, a CAT scan, and an X-ray on her left hand (T. 126; Dept. Ex. 8). Complainant testified that approximately two or three weeks later, her younger son was showing signs of aggressive behavior and was observed by her mother to take his “life-sized doll and punch it and hit it on the floor” (T. 135). Complainant stated that she watched him a few days later take that same toy, straddle it, slam it into the floor, and hit it (Id.). Sergeant Barry Driscoll Sergeant Barry Driscoll testified that on July 1, 2020, he was the Patrol Supervisor in the 52nd Precinct (T. 275-76). He testified that he responded to Complainant’s residence at the request of the two responding police officers, Police Officers Astraya and Campoverde (T. 276). When he arrived there, he observed an adult assuming care for Complainant’s son so that she could be interviewed without the child present (T. 277). FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 8 Sergeant Driscoll testified that Complainant told him Respondent, her ex-boyfriend, had been at her apartment earlier that morning. They had an argument in which Respondent shouted at her and threatened her. Respondent's stepfather witnessed this interaction. Respondent eventually left the apartment, and Complainant called the precinct to make a complaint for harassment. Respondent then returned to the apartment and was upset that Complainant had called the police (T. 277). Complainant informed Sergeant Driscoll that Respondent grabbed Complaint by her arms, forced her to the ground, and struck her face and neck with her own hands; he was also slamming her body and the back of her head on the floor. Complainant stated that one of her children was present during this altercation and that when she attempted to call 911, Respondent again grabbed her by her arms and shook her while she was on the floor (T. 278). Sergeant Driscoll testified that Complainant was upset and short of breath as she related these events to him; she also told him that she did not feel safe and that she “didn’t want to do this anymore” (T. 278). He testified that he observed injuries to the left side of her neck and the lower part of her face (T. 279). He testified that Department’s Exhibits 4A through 4E were fair and accurate representations of the injuries he observed when he first saw Complainant on July 1, 2020 (Id.). Sergeant Driscoll also testified that he interviewed Respondent at the apartment; according to Driscoll, Respondent asked him if he could “tell his side of the story” (T. 279-80). Respondent then told Sergeant Driscoll that he and Complainant had argued that morning, that he had gone to her apartment straight from work and had not been drinking. He explained further that Complainant felt safer with his stepfather present, although he and his stepfather “do not communicate well.” Respondent stated that the argument escalated and that FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 9 he eventually returned to the apartment, confronting Complainant about why she called the police, knowing that it could affect his job (T. 280). During this interaction, Sergeant Driscoll testified that Respondent’s demeanor was primarily calm but that he seemed somewhat upset. He did not observe any physical injuries on Respondent, and Respondent did not complain of any injuries. After speaking with Respondent, Sergeant Driscoll re-interviewed Complainant and directed the responding police officers to take photographs of her injuries. He then placed Respondent under arrest for Assault in the Third Degree; Sergeant Driscoll and his operator, Police Officer McCormack, transported him to the precinct for arrest processing (T. 281-82). Hospital Records The hospital records admitted in evidence show that the triage nurse observed “right side of upper lip abrasion and ecchymosis on left side of neck; abrasion on inside right upper lip.” In the narrative section of the intake report, Complainant stated, "I was attacked." The report noted, “Ex-boyfriend assaulted her in her apartment and used her own hands to hit her, and she remembers hitting her head and face on the ground/wall at least three times.” The report further documented the “Chief complaint: per EMS, s/p assault by ex- boyfriend with pain in her left chin, back of the head and scratch to neck.” The Emergency Department evaluation noted, “s/p assault with left facial pain. Was assaulted by ex-boyfriend, states, ‘He used my head like a basketball,’ and hit her in the head several times with her own hands, forced her on the ground, and hit her left side of the face onto the ground. Pain mostly at the left side of face, non-radiating, achy, worse with palpation and opening/closing of mouth, has not tried anything for it. Admits to some pain of eyes when light is shined in it. Admits to diffuse headache, non-radiating, not worse or better with anything. Denies any vision changes, no n/v 5, no abdominal pain, no numbness/tingling/weakness, no cp 6, no sob 7” 5 Nausea vomiting. 6 Chest pain 7 Shortness of breath FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 10 The hospital records also detailed the physical examination which was performed on Complainant: “Physical exam Head: noted edema and tenderness of the L mandibular region, TTP (thrombotic thrombocytopenia purpura), no obvious deformities, no battle signs b/l, no raccoon eyes b/l. Ext: No clubbing, edema, cyanosis. Noted TTP of the L wrist, no obvious ecchymosis/erythema/obvious deformities.” The medical diagnosis and treatment plan were also detailed in the records: “Initial impression and E.D. action plan: 36 yo F without reported pmhx 8 presenting s/p assault. VSS 9 currently. Physical exam shows TTP of left mandible, ecchymosis in pattern described above, concern for maxfac fracture, and TTP of the L wrist, concern for wrist fracture. Does not meet criteria for Head CT at this time by the Canadian Head CT criteria. Plan: maxfac C.T., L hand/wrist x-ray, Tylenol, Robaxin 10, reassess.” (Dept. Ex. 8). Lisette Torres Lisette Torres testified that she is Respondent's mother and a retired Member of Service. She called him twice on July 1, 2020 (T. 325). In the first call, she asked Respondent if he was okay, and he responded, “She's going crazy; I don't know what's wrong with her” (T. 326). Torres recalled hearing Complainant's voice yelling in the background (T. 326-327). According to Torres, Respondent asked Complainant, “Why are you yelling?” (T. 327). The call lasted less than a minute before she hung up (T. 328). Torres denied that she had any video conversation with Complainant that day and did not see her until Complainant returned from the hospital (Id.). Torres testified that she had a second telephone conversation with Respondent to determine if “the police were there.” She advised him to return to Complainant’s apartment 8 Past medical history. 9 Vital signs stable. 10 Robaxin is a muscle relaxer. FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 11 because if he did not return, he could be disciplined for leaving the scene of an incident (T. 324- 25). Respondent Respondent testified that he went to Complainant’s apartment on July 1, 2020, to see his sons, but she refused to permit him to enter because she did not feel safe and wanted to wait until his stepfather arrived (T. 334). He acknowledged that once his stepfather came, he entered the apartment with him, and the three adults had a conversation (T. 335-36). While he further acknowledged hearing himself on Department’s Exhibit 2A apologize for kicking in Complainant's door on June 14, 2020, he claimed that he never kicked the door in, and he only apologized to placate Complainant (T. 336, 339). He further explained that when he said, “one of us has to go,” he meant that someone would have to be in charge of the children because he “was the primary caretaker. At the time, I did everything with the boys. I took them to school; I paid for everything. I paid for their education, groceries and, you know, took them to doctor’s appointments, and unfortunately, we – no matter how hard I tried, we just could not come to any sort of agreement as far as anything pertaining to the boys” (T. 340). Respondent testified that he overheard Complainant calling someone and stating, “It’s not an emergency,” which led him to suspect she had called the police (Id. at 393). He testified further that while he did not recall Complainant asking him to leave her apartment, his stepfather suggested that he leave, and he did so (T. 341, 393). Once he left the building, he called his mother, related to what had transpired in the apartment, and shared his concern that Complainant had called the police (T. 341-42). According to Respondent, his mother told him that if the police had been called, he should return to the apartment (T. 342). FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 12 Respondent testified that he returned to the apartment and let himself in with his key; when he saw Complainant, he asked her if his stepfather was there (Id.). According to Respondent, Complainant “kind of speed walk[ed] toward [him]” and became “extremely belligerent, erratic” (T. 343, 383). He stated that he tried to calm her down, and she started swinging her arms, so he tried to restrain her, and he believed she hit herself in the face (T. 343, 383). He claimed he restrained her by grabbing her wrists (T. 384). Respondent testified that his son was in the room with them as this incident was happening and that he was crying (Id.). He stated that he received a phone call from his mother and that Complainant began screaming, so he asked her, “Yo, why you screaming?” (T. 345). He testified on cross-examination that he was holding his son while on the phone; he then put his son down and left him in the apartment with Complainant when he heard the bell ring before going to open the door to the building for the police (T. 386). Credibility In credibility assessments, the trier of fact should consider a wide range of factors, including, but not limited to, witness demeanor, corroborating evidence, the consistency of a witness account both at trial and over time, the degree to which the witness is interested in the outcome of a case, the potential prejudice or bias of the witness, and perhaps most basically the degree to which the witness accounts are logical and comport with common sense and general human experience. An overlay to this dynamic is the complexity of assessing allegations of assaults by an intimate partner. However, the finder of fact must always weigh the emotional complications of bringing such charges against Respondent's due process right to have all evidence suggesting that the incident did not occur fairly evaluated and considered. The most crucial factor for the FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 13 Tribunal to consider is the individual motivations of the parties to provide truthful information. When placed in proper context, the behaviors of the parties before and after the incident in question may also reveal evidence relevant to a credibility assessment. Sergeant Barry Driscoll is a credible, disinterested witness who testified as an investigator and collector of evidence. Based upon the totality of the circumstances, I find Complainant’s testimony credible. I had the opportunity to observe her demeanor as she testified before this Tribunal over the better part of a trial day. It is my judgment that she was logical, forthcoming, and consistent. As the mother of two of Respondent’s children, she has an arguable interest in the outcome of this proceeding, as it could well affect Respondent’s ability to provide financial support. In this case, however, the accusatory nature of her allegations operates against such interest, which is indicia of her veracity. Counsel for Respondent attempted to diminish Complainant’s credibility by highlighting her profession as an actor, suggesting that she could feign emotion during her testimony and in the statements she made to police immediately after the alleged assault. He also argued that Complainant was making a false accusation against Respondent to have his parental rights terminated so that she could relocate to California, where the bulk of her family resides. Finally, counsel confronted Complainant with allegedly false statements she made on a housing application, which he contended mischaracterized her relationship with Respondent. I have considered the above issues and factored them into my credibility assessment. In the view of this Tribunal, any concerns counsel raised about Complainant’s credibility were allayed by: (1) the extensive corroboration of her injuries, as documented in Department’s Exhibits 4A-4E and 8, and Sergeant Driscoll’s testimony; (2) her demeanor before and after the FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 14 alleged assault on July 1, 2020, as captured in Department’s Exhibits 2A, 2B and 3A; (3) Respondent’s demeanor and language immediately before the July 1, 2020, alleged assault, as captured on Department’s Exhibits 2A and 2B; and (4) the evidence of Respondent’s violent acts on June 14, 2020, as described in her testimony and Department’s Exhibit 1. In contrast, Respondent’s testimony before this Tribunal was self-serving, illogical, and unworthy of belief. At times, he attempted to reframe some of his actions on July 1, 2020, in a manner later undermined by independent evidence. On other occasions, he was evasive when the answer to a question might tend to undercut his position at trial. For example, Respondent testified that after his altercation with Complainant, he left the apartment and went downstairs to let the police into the building because the buzzer for the front door was usually broken (T. 345). The video evidence in Department’s Exhibit 3A shows Police Officer Astraya and others being buzzed into the building, then encountering Respondent standing in the lobby. Respondent allowed the police officers to walk past him without identifying himself, then entered the elevator with them. The video shows that only after he learned which floor they were going to did he identify himself as a police officer (Dept. Ex. 3A, T. 387-91). Respondent also denied having any recollection of speaking to the police officers outside Complainant’s apartment (T. 399-400). I note that he was cross-examined on this point after Sergeant Driscoll, who was one of the police officers who responded to her apartment, testified on the Department’s direct case (T. 280-81). Driscoll testified credibly that Respondent approached him and asked to “tell his side of the story” (T. 280). After being confronted with Department’s Exhibit 3C, Respondent conceded that he admitted to the police officers that he “had not been nice” to Complainant (T. 402). FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 15 I further find that his testimony regarding the manner in which Complainant sustained her injuries was a false narrative designed to avoid responsibility for the injuries which the credible, relevant evidence establishes overwhelmingly that he caused. Lisette Torres has a presumptive bias as Respondent’s mother; her relationship with Complainant may provide a secondary, but related, basis to scrutinize her testimony for potential bias. Despite these concerns, she offered some testimonial evidence that was logical and corroborative of the Department Advocate's case. The issues for which Respondent’s counsel offered her testimony (i.e., to deny that she and Respondent were estranged at the time of the July 1, 2020, incident; and to deny that she had engaged in a supposed video call with Torres on July 1), were tangential to the material issues in this case. Specification 1: Wrongfully Engaged in a Physical Altercation I find that the Department has met its burden by a preponderance of the credible, relevant evidence that Respondent engaged in a physical altercation with Complainant. As stated above, the Tribunal credits Complainant’s testimony regarding the events on July 1, 2020. The testimonial evidence, audio recordings, photographs of the injuries, and medical records, establish that Complainant was the victim of physical violence at the hands of Respondent. Complainant made a prompt outcry immediately after the assault. The video evidence shows that she was visibly upset when she answered her door and immediately told the police officers, “He came back and attacked me,” pointed at Respondent, and stated, “That's the father of my kids” (Dept. Ex. 3A at 03:29-03:36). This declaration qualifies as an excited utterance, a firmly-rooted exception to the hearsay rule, which, by its nature, is deemed trustworthy. All of the surrounding circumstances support a finding that Complainant spoke spontaneously while FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 16 under the influence of a startling event and did not have time for reflection or design. Complainant’s subsequent statements to Sergeant Driscoll, the hospital staff, and her testimony before this Tribunal, were all consistent with this excited utterance. As discussed above in the credibility analysis, independent evidence extensively corroborates Complainant's testimony. In contrast, Respondent’s account of the events was illogical and self-serving. Nevertheless, his testimony contained admissions that further corroborated Complainant's testimony. He admitted that during the altercation, he had Complainant’s wrists in his hands, corroborating her assertion that he held her in that manner. He conceded that Complainant was punched in the face with her own hands, although he denied that he used her hands to hit her, instead claiming that the punches were self-inflicted. He also admitted that he received a telephone call from his mother during the altercation and that during the call, Complainant was screaming. This admission corroborates Complainant’s testimony regarding the call from his mother. His characterization of Complainant’s demeanor as erratic and belligerent is a more appropriate description of his own demeanor, beginning with his initial verbal altercation with Complainant on July 1, 2020. I find that Respondent was angry at Complainant during the argument which preceded the assault and was told by Complainant and his stepfather several times to stop yelling (See Dept. Exs. 2A, 2B). For example, after Complainant told Respondent that she did not want to be with him, Respondent stated, “One of us has to fucking go . . . One of us will go . . . I am not going to raise my kids separate.” When Complainant replies that she will never lose her children, Respondent answers, “Okay.” When Complainant asks, “Okay, what?” Respondent states, “Don’t worry FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 17 about it” (Dept. Ex. 2C, p. 80). Later on in the same recording, Complainant told Respondent he was being “controlling” and that he “cannot do nothing by force,” to which Respondent stated, “I am not going to accept that” (Dept. Ex. 2C, p. 109). I find that these statements are objectively threatening and indicate Respondent’s refusal to accept that Complainant did not want a relationship with him. He also made unequivocal statements that he intended to secure custody of his children even if that meant that she would somehow cease to be a consideration in the custody arrangement, whatever that portended. Respondent's aggrieved but inflexible state of mind is circumstantial evidence supporting a finding that he later re-entered Complainant’s apartment by force and physically assaulted her. Respondent’s other claims that Complainant punched herself in the face and that he was trying to restrain her strain credulity and are contrary to common sense. Complainant’s testimony that Respondent took her hands into his own, then punched her in her face, using her own hands, is too bizarre to be the result of her fabrication. Furthermore, if Respondent honestly thought Complainant was “erratic and belligerent” and that he never touched her, it does not make sense that he would leave his son alone with her if she attempted to injure herself in his presence, as he claimed. I further find that Respondent’s actions were prejudicial to this Department’s good order, efficiency, and discipline. The evidence, in this case, establishes convincingly that Respondent’s actions on July 1, 2020, were motivated by his anger at Complainant for having the audacity to refuse his request to resume a relationship with him and for calling the police. First, Complainant had the right to decline a relationship with Respondent, especially one in which she had reason to feel unsafe. The tenor of his comments recorded in Department’s Exhibit 1 communicates to any objective listener that he had no concern for what Complainant FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 18 wanted and that, in his mind, his desires were paramount. This mindset is incompatible with providing the selfless service members of this Department are called upon to render daily. Second, Respondent later physically attacked Complainant, enraged that she had called the police. This Department stands ready 24 hours a day to assist citizens in distress; it is shocking that a Member of Service administered a retributive beating to Complainant for reaching out to the agency, of which he is a part, tasked with assisting in such difficult circumstances. Accordingly, I find Respondent Guilty of Specification 1. Specification 2: Endangering the Welfare of a Child I find that the Department has met its burden by a preponderance of the credible, relevant evidence that Respondent wrongfully engaged in conduct prejudicial to the good order, efficiency, or discipline of the Department, in that said Police Officer knowingly acted in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen (17) years old. It is not in dispute that the Respondent’s younger son, who was days from turning three, was present during the July 1, 2020, physical altercation with Complainant. Respondent admitted in his trial testimony that he was in the apartment with Complainant and their younger son when she supposedly initiated a confrontation. As outlined in the analysis of Specification 1, I have found that it was he who initiated a physical altercation with Complainant and assaulted her in front of their son. In Department’s Exhibit 3A, the son is seen with Complainant at the door of her apartment while she is speaking with the police after the incident. Finally, I find that assaulting a child’s mother in that child’s presence is likely detrimental to his mental welfare. FILED: NEW YORK COUNTY CLERK 10/19/2023 11:30 AM INDEX NO. 160195/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 10/19/2023 POLICE OFFICER JOSUE TORRES 19 While I permitted Complainant to testify that she observed her younger son displaying aggressive behavior toward a stuffed animal sometime after the assault, I did not consider that as evidence that the child had suffered mental harm. Accordingly, I find Respondent Guilty of Specification 2. Specification 3: Failure to Change Address I find that the Department has met its burden by a preponderance of the