Disposition of Cases

RCNY tit. 38-A, ch. 1, subch. D

in effect

38-A RCNY § 1-31 Assignment of Cases.

§ 1-31 Assignment of Cases. (a) The Chair or the Executive Director will assign to a panel consisting of at least three Board members, or may assign to the Full Board for review, all Cases which have been fully investigated, and such other Cases or categories of Cases as the Board may determine by resolution. (b) Pursuant to Chapter 18-A, Section 440(c)(2) of the Charter, no panel will consist exclusively of members designated by the Police Commissioner or appointed by the Mayor or the City Council. Panel membership will be determined by the Chair, but each panel will consist of at least one member appointed by City Council, at least one designated by the Police Commissioner, and at least one appointed by the Mayor; unless such a panel composition would interfere with or unreasonably delay the Civilian Complaint Review Board's operations. Panel membership will be rotated on a regular basis. (c) Due to the special characteristics of their respective offices and appointments, the Public Advocate Appointee and the Chair may participate on a panel as either a Mayoral Appointee or a City Council Appointee. (d) If the Chair or the Executive Director determines that circumstances require it, the Chair or the Executive Director may reassign a Case to a new panel. (Amended City Record 1/2/2018, eff. 2/1/2018; amended City Record 2/24/2021, eff. 3/26/2021)

38-A RCNY § 1-32 Panel or Board Review of Cases.

§ 1-32 Panel or Board Review of Cases. (a) The panel or the Full Board will review the investigatory materials for each assigned Case, and report its findings and recommendations in writing. (b) The panel or the Full Board may, if it deems appropriate, return a Case to investigative staff for further investigation. A panel may conduct additional fact-finding, including interviews, in accordance with the provisions of 38-A RCNY § 1-24. (c) Panel findings and recommendations are deemed to be the findings and recommendations of the Board. However, upon request of a member of the panel, or upon the direction of the Chair at the request of any member of the Board, the Case will be referred to the Full Board for its consideration. (d) If a Case has been referred to the Full Board, the Full Board may take such action as it deems appropriate, including, but not limited to: making its own findings and recommendations, remanding the Case to a referring panel for further consideration or action, or remanding the Case for further investigation. (e) If a case has been referred to a panel, a majority vote of panel members present shall be required to take action. (Amended City Record 1/2/2018, eff. 2/1/2018; amended City Record 2/24/2021, eff. 3/26/2021)

38-A RCNY § 1-33 Case Dispositions.

§ 1-33 Case Dispositions. (a) Pursuant to Chapter 18-A, Section 440(c)(1) of the Charter, no finding or recommendation shall be based solely upon an unsworn complaint or statement, nor shall prior unable to determine, unfounded or withdrawn complaints be the basis for any such finding or recommendation. (b) Panels or the Full Board will employ a "preponderance of the evidence" standard of proof in evaluating Cases. (c) The findings and recommendations with respect to each Case reviewed by the Board will be submitted to the Police Commissioner. (d) Where the disposition of one or more allegations is "Substantiated," as defined in Subdivision (e) of this section, the Board's findings and recommendations will be forwarded in writing to the Police Commissioner within five business days and include appropriate pedigree information regarding the subject officer, the Case number and any other control or serial number assigned to the Case, and a summary of the pertinent facts. Based on its findings, the Board may recommend penalties of Charges, command discipline, formalized training, instructions, or any combination of these. However, if the Board or panel recommends Charges for any Case allegation against a subject officer, all substantiated allegations against that officer will be included as part of that recommendation. (e) The following categories of Case investigation dispositions will be used in reports to the Police Commissioner: (1) Substantiated: there was a preponderance of evidence that the acts alleged occurred and constituted misconduct. (2) Unable to Determine: there was insufficient evidence to establish whether or not there was an act of misconduct. (3) Within NYPD Guidelines: there was a preponderance of the evidence that the acts alleged occurred but did not constitute misconduct. (4) Unfounded: there was a preponderance of the evidence that the acts alleged did not occur. (5) Complaint Withdrawn: the Complainant withdrew the complaint. (6) Unable to Investigate: the Complainant could not be reached or located, or the Alleged Victim could not be reached or located, the participation of the Complainant was insufficient to enable the Board to conduct a full investigation, the participation of the Alleged Victim was insufficient to enable the Board to conduct a full investigation, the Board could not identify the Alleged Victim and therefore was unable to conduct a full investigation. (7) Closed – Pending Litigation: the Complainant or Victim chose not to cooperate with the investigation on the advice of counsel. (8) Officer Unidentified: the Board was unable to identify the officer who was the subject of the allegation. (9) Referral: the complaint was referred to another governmental entity. (10) No Jurisdiction: the complaint does not fall within the jurisdiction of the Board. (11) Other Possible Misconduct Noted: the Board found evidence during its investigation that an officer committed misconduct not traditionally investigated by the Board, but about which the Police Department should be aware. (12) Mediated: the parties to the mediation agreed that the complaint should be considered as having been resolved through mediation. (13) Mediation Attempted: the parties agreed to mediate the complaint but the civilian subsequently did not participate in the mediation. (14) Miscellaneous: the subject of the complaint is not currently employed by the Police Department as a police officer. (15) Administrative Closure: the Case was referred to the Board by another agency, not by a member of the public, and the Board was unable to conduct a full investigation. (Amended City Record 1/2/2018, eff. 2/1/2018; amended City Record 2/24/2021, eff. 3/26/2021; amended City Record 9/22/2022, eff. 10/22/2022)

38-A RCNY § 1-34 Cases Closed without a Full Investigation.

§ 1-34 Cases Closed without a Full Investigation. (a) The Full Board, a panel, or the Executive Director may close without conducting a full investigation any Case falling within categories (5) through (15) of 38-A RCNY § 1-33(e). (b) No Case(s) falling within categories (5) through (15) of 38-A RCNY § 1-33(e) will be closed by the Executive Director until copies have first been provided to any member of the Full Board who has asked to review copies of said Case(s). (c) The Executive Director must from time to time conduct an audit of Cases closed pursuant to this rule. After an audit of the aforementioned sample of Cases, the Executive Director will report his or her review of those Cases to the Full Board. (Amended City Record 1/2/2018, eff. 2/1/2018; amended City Record 2/24/2021, eff. 3/26/2021; amended City Record 9/22/2022, eff. 10/22/2022)

38-A RCNY § 1-35 Communications with and Notifications to Complainants, Alleged Victims, and Reporting Non-Witnesses Regarding Status of Complaints.

§ 1-35 Communications with and Notifications to Complainants, Alleged Victims, and Reporting Non-Witnesses Regarding Status of Complaints. (a) Within seven business days of the receipt of a complaint, the Board will notify a Complainant, Alleged Victim, and/or Reporting Non-Witness by telephone or letter that the Civilian Complaint Review Board has received the complaint, and must identify the Case number and Agency Staff assigned to investigate the Case. (b) The Civilian Complaint Review Board will, within seven business days of a final decision of the Board, write to the Complainant and/or Alleged Victim with such findings and recommendations. (c) If an allegation is substantiated and Charges are recommended by a panel or the Full Board, the Civilian Complaint Review Board will, as soon as it is determined under 38-A RCNY § 1-42, advise the Complainant and/or Alleged Victim in writing whether such allegation will be prosecuted and, if it will, whether the Board or the Police Department Advocate will be responsible for prosecuting it. (d) The Civilian Complaint Review Board will within seven business days of the Civilian Complaint Review Board's receipt of the Police Commissioner's final disciplinary determination notify the Complainant and/or Alleged Victim by letter of the final action taken by the Police Commissioner. (Amended City Record 1/2/2018, eff. 2/1/2018; amended City Record 9/22/2022, eff. 10/22/2022)

38-A RCNY § 1-36 Reconsideration or Reopening of Cases.

§ 1-36 Reconsideration or Reopening of Cases. (a) Upon receipt of a written request to reconsider or reopen a Case from a Complainant, Alleged Victim, Victim or subject police officer, a panel, Chair, or Executive Director may: (1) Reopen any Case previously closed without a full investigation; or (2) Agree to reconsider any Case previously closed with a full investigation if i. New evidence becomes available which could reasonably lead to a different finding or recommendation in the Case; or ii. A previously unavailable or uncooperative witness becomes available which could reasonably lead to a different finding or recommendation in the Case; or iii. If reopening or reconsidering the Case serves the interests of justice. (b) Upon receipt of a written request sent by the Police Department Advocate requesting the reconsideration of a previously fully investigated Case with panel findings and recommendations, a panel, the Chair, or the Full Board may agree to reconsider the penalty and/or disposition of an allegation if: (1) The penalty recommended for the Case by the deciding panel or Full Board against any subject officer is found by the deciding panel or Full Board to be inappropriate or excessive; or (2) There exists new facts or evidence that were not previously known by the deciding panel or Full Board which could reasonably lead to a different finding or recommendation in the Case; or (3) There are matters of fact or law which are found to have been overlooked or misapprehended by the deciding panel or Full Board or if reconsidering the case serves the interests of justice. In considering requests from the Police Department Advocate, any such request must be made to the Chair, Executive Director, deciding panel, or Full Board, addressed to the Executive Director, within 30 days from receipt of the Civilian Complaint Review Board's initial findings and recommendations of a Case, absent good cause for any such delay beyond 30 days. (c) The Full Board, Chair, a panel, or Executive Director considering a request to reopen or reconsider a Case will have full discretion in making a determination, and may properly consider all relevant circumstances, including, but not limited to: any delays on the part of the person requesting that the Case be reopened; new, material information as to the Complainant, Alleged Victim, Victim, the subject officer, or any civilian or police witness; and the practicability of conducting a full investigation of the allegations contained in the Case within any applicable limitation period. (d) If a previously closed Case is reopened or reconsidered: (1) If all members of the previously deciding panel are presently members of the Board and available to meet, then that previously deciding panel will be reconvened to reconsider the Case. (2) If any member of the previously deciding panel is no longer a member of the Board or is unavailable to meet such that their unavailability will interfere with or unreasonably delay the case, then the remaining members of the previously deciding panel will be reconvened with a replacement panel member designated by the Chair as required by 38-A RCNY § 1-31(b) to reconsider the Case. (3) If all members of the previously deciding panel are no longer members of the Board, the Chair will select a panel will be convened to reconsider the Case pursuant to 38-A RCNY § 1-32. (Added City Record 1/2/2018, eff. 2/1/2018; amended City Record 2/24/2021, eff. 3/26/2021; amended City Record 9/22/2022, eff. 10/22/2022)

38-A RCNY § 1-37 Board Notifications and Final Determinations Pursuant to Chapter 18-A, Section 441 of the NYC Charter.

§ 1-37 Board Notifications and Final Determinations Pursuant to Chapter 18-A, Section 441 of the NYC Charter. (a) Within 10 days after the Board initiates an investigation into a member of the Police Department's past professional conduct, the Board shall provide written notice to the member being investigated and to the relevant covered entity. (b) Within 10 days after the completion of an investigation into past professional conduct, the Board shall provide a written statement of final determination to the member being investigated. Such statement shall include (i) the investigation's details, when it was initiated and concluded, the identity of its subject and a summary of the materials reviewed by the Board during the investigation; (ii) the Board's investigative findings, including the identification of any threat to the safety of an individual or the public and whether the Board found evidence of any additional past acts of bias committed in the course of performance of official duties; (iii) if applicable, any recommendations of the Board for remedial action, including, but not limited to, training, discipline, where consistent with section 75 of the civil service law, or both; and (iv) if applicable, a statement that the Board has determined to terminate the investigation and an explanation why. (c) The member of the Police Department being investigated shall have 30 days from receipt of the Board's written statement of final determination to answer in writing any of the findings or recommendations contained therein. If such member timely submits such an answer, the Board shall consider it and determine whether to revise any such findings or recommendations in response. (d) Within 10 days after (i) receiving the member of the Police Department's written answer or, if no answer is provided, (ii) the expiration of the 30-day deadline for the member to submit a written answer, the Board shall submit its written statement of final determination to the Police Commissioner, any other parties to whom notice was sent pursuant to paragraph (a), and any other appropriate agency or official as determined by the Board. (Added City Record 9/22/2022, eff. 10/22/2022)

Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-134619Fetched: 10/24/2026