The Court has considered the following submissions on the fully submitted petition with answers, opposition and objections in point of law, together with Petitioner's motion to amend the petition:

1. Notice of Petition, Petition with Exhibits A-M, Affirmation in Support

2. Answer and Objections in Point of Law with Memorandum of Law and Affirmation of DCJS with Exhibits A through J of Respondent New York State Division of Criminal Justice Services

3. Answer and Objections in Point of Law with Memorandum of Law and Hertman Affidavit with Exhibits A through N;

4. Reply Affirmation and Memorandum of Law;

5. Petitioner's Notice of Motion to Amend with Affirmation in Support and Exhibit A with Memorandum of Law;

6. Frank Affirmation in Opposition;

7. Sandford Affirmation in Opposition;

8. Reply Affirmation

Petitioner was a police officer with the Town of Wallkill. In January of 2021, the Orange County District Attorney charged the Petitioner with two different counts of Assault in the Third Degree and one count of Official Misconduct following an alleged excessive use of force captured on video camera resulting in the injury of a handcuffed detainee. These criminal charges resulted in the subsequent, additional filing of five disciplinary charges by the Town of Wallkill Police Department in January of 2021 concerning the same, which resulted in the Petitioner's suspension with pay.

Upon the District Attorney's request, the Wallkill Police Department held its disciplinary charges in abeyance pending disposition of the criminal charges.

In June of 2023, the Petitioner accepted an offer of Adjournment in Contemplation of Dismissal pursuant to a plea agreement with the District Attorney. Pursuant thereto, Petitioner agreed to irrevocably resign his position with the Town of Wallkill Police Department by June 23, 2023, and not seek police employment in Orange County for five years, waiving the sealing of the criminal file and plea agreement.

Following the plea agreement, the Petitioner entered a Stipulation of Settlement with the Town of Wallkill Police Department in which the Department accepted a plea of "no contest" to Charge III (failing to be courteous to the public) in full satisfaction of all five disciplinary charges relating to the alleged misconduct. Pursuant to the Stipulation, the penalty imposed was forfeiture of five days of accrued vacation time and express waiver of rights to a Civil Service Law Section 75 and Chapter 42, Article II Wallkill Town Code disciplinary hearing. Resignation was not required pursuant to the Stipulation.

In furtherance of the plea agreement with the Orange County District Attorney, the Petitioner tendered his letter of resignation to the Wallkill Police Department effective June 23, 2023.

The Wallkill Police Department is required by law to report the circumstances of employment termination to the New York State Division of Criminal Justice Services (hereinafter "DCJS"). Initially, the Wallkill Police Department reported Petitioner's termination as a "resignation" in 2023.

For reasons that are not fully explained, Wallkill Police Department Chief Hertman subsequently spoke with an official from DCJS concerning the Petitioner's resignation and was ultimately advised by DCJS that his initial report of a "resignation" was improper under the regulations in effect at the time and, instead, he was required to report Petitioner's termination of employment as a "removal for cause." (See Hertman Affd.). Therefore, Chief Hertman changed [*2]Petitioner's termination report to DCJS from "resignation" to "removal for cause."

Approximately one year later, in June 2024, Petitioner received a letter from DCJS indicating that Wallkill updated its report to the DCJS as a "removal for cause," which permanently invalidated the Petitioner's basic training certification.

Petitioner contested the description of his termination and the invalidation of his basic training certificate with DCJS, which triggered a DCJS review process pursuant to regulation (9 NYCRR § 6056.7). Although Petitioner commenced this proceeding prior to the DCJS' completion of its review, the DCJS ultimately concluded that there was no inaccuracy in the Wallkill Police Department's reporting the Petitioner's termination as a "removal for cause" under the applicable regulations. (See DCJS Ex. J).

Petitioner filed an alleged hybrid action/special proceeding for the following causes: (1) breach of contract against the Town of Wallkill concerning the Stipulation and Petitioner's understanding that he would resign in good standing; (2) Article 78 proceeding against the Town of Wallkill alleging that the Town acted arbitrarily or contrary to law when the Town subsequently changed its report to DCJS from resignation to removal for cause; (3) Article 78 proceeding against DCJS for invalidating Petitioner's basic training certificate in an arbitrary manner or contrary to law; (4) Violation of due process rights as against DCJS; (5) Violation of the State Administrative Procedures Act as against DCJS.

Acknowledging that the declaratory causes of action had been improperly commenced without a summons, Petitioner subsequently filed a motion to amend his pleadings to include a summons.

Pursuant to 9 NYCRR § 6056.4(d), when a police officer leaves employment, the employer shall immediately notify DCJS and provide the reason for the separation, which shall include one of the following: (1) leave of absence, (2) resignation, (3) removal, (4) removal for cause as defined in 9 NYCRR § 6056.2[h] or (5) removal during a probationary period as defined in 9 NYCRR § 6056.2[i].

Pursuant to 9 NYCRR § 6056.2[h], removal for cause "means when an officer has an interruption in service as defined in paragraph (2) of this subdivision [including resignation, retirement or after waiver of hearing rights] subsequent to and in connection with allegations of misconduct" as defined in subparagraph (h)(1). Pursuant to 9 NYCRR § 6056.2(h)(1), misconduct includes, among other things, use of excessive force [9 NYCRR § 6056.2(h)(1)(c)], criminal activity, whether charged or prosecuted or not, including assault [9 NYCRR 6056.2(h)(1)(a)(vi)] and official misconduct [9 NYCRR § 6056.2(h)(1)(a)(iv)].

Pursuant to 9 NYCRR § 6056.2(g)(2), a police officer's basic training certificate as set forth in General Municipal Law § 209-q(1) "shall immediately be deemed invalid when an officer ceases to serve pursuant to subdivision (d)(4) [removal for cause]" and, pursuant to § [*3]6056.4(f), may be permanently invalidated and the officer may be ineligible for future certification.

Here, the Petitioner was criminally charged with two different counts of assault and one count of official misconduct, along with five disciplinary employment charges stemming therefrom. When Petitioner resigned from employment subsequent and pursuant to his plea agreement with the District Attorney's office in 2023 his separation from employment constituted a removal for cause as defined in 9 NYCRR § 6065.2(h), as a matter of law, notwithstanding parties' possible ignorance of that fact.

Although the Petitioner and the Town of Wallkill resolved the disciplinary charges by stipulation, the stipulation did not speak as to how the Petitioner's separation would be described or reported (nor could it, under the regulations), nor did the stipulation even expressly contemplate or require Petitioner's resignation in its terms. (See Exhibit B to Petition). As a result, upon the documentary evidence and the law presented, there is no breach of contract between the Town and the Petitioner as a matter of law.

An analogous scenario was examined by the Tompkins County Supreme Court in its Decision, Order and Judgment dated November 15, 2023, as follows:

Petitioner's argument that DCJS overrode the intent of the parties by disregarding their agreement providing for withdrawal of the disciplinary charges is likewise unavailing. In connection with the implementation of the New York State Professional Policing Act of 2021 (L. 2021, Ch. 59, Part BBB), the regulations pertaining to the DCJS's central state registry were amended to "redefine removal for cause and establish a process for the [DCJS] to correct any material inaccuracy reported by a law enforcement agency which affects the certification standing of an officer" (NY St. Reg., November 2, 2022 at 1) [footnote omitted]. Under the prior regulations, reporting of a removal for cause could be avoided by voluntary dismissal of disciplinary charges prior to separation from service (see e.g. Matter of Kitto v. City of Albany, NY Dept. of Police, 231 AD3d at 1170). In such cases, an officer who had been the subject of disciplinary proceedings could be hired by another department "in relative anonymity with respect to the misconduct leading to their prior separation" (NY St. Reg., November 2, 2022 at 1). The amendments were intended to close this loophole (see NY St. Reg., November 2, 2022 at 1). The amended regulations define removal for cause as "an interruption in service . . . subsequent to and in connection with allegations of misconduct" (9 NYCRR 6056.2[h][emphasis added]. An "interruption in service" includes 'separation . . . by an employee's resignation or retirement' or . . . after an employee's waiver of any rights available pursuant [to a collective bargaining agreement]" (9 NYCRR 6056.2[h][2][b], [c]). Petitioner retired subsequent to, and in connection with, allegations of misconduct and after she waived her right to challenge the merits of the misconduct charges in arbitration pursuant to the applicable collective bargaining agreement, notwithstanding the intervening dismissal of the charges. This is the very situation the amendments were intended to address. Accordingly, DCJS's determination that petitioner's retirement was a removal for cause was neither arbitrary nor an abuse of discretion.

[*4]Barksdale v. State of New York Division of Criminal Justice Services, et al, Sup. Ct. Tompkins County, Index No. EF2023-0057, Decision, Order and Judgment dated November 15, 2023 (Maser, A.J.S.C.).

Both the Town of Wallkill and the DCJS' qualification of Petitioner's separation as a removal for cause was based upon the Petitioner's resolution of the criminal charges with the Orange County District Attorney and, thereafter, the resolution of the disciplinary charges with the Town. Given the charges at issue and the Petitioner's related and direct resignation following the resolution of those charges, neither the Town's nor the DCJS' qualifications of Petitioner's separation were arbitrary, an abuse of discretion or contrary to law; instead, they were correctly and compulsorily made pursuant to the applicable regulations in effect. Accordingly, the Article 78 causes of action should be dismissed.

Regarding Petitioner's constitutional due process claim (42 USC § 1983), there is no case authority establishing that a police officer has a constitutional property interest in a basic training certificate separate and apart from a property interest in employment as a police officer. See, e.g., Barksdale v. State of New York Division of Criminal Justice Services, et al, Sup. Ct. Tompkins County, Index No. EF2023-0057, Decision, Order and Judgment dated November 15, 2023 (Maser, A.J.S.C.). Even assuming that the Petitioner was deprived of a property interest upon the invalidation of his basic training certificate, such invalidation was the legal result of Petitioner's choice to not rebut the assault and misconduct charges. The Petitioner received due process regarding the criminal proceeding and disciplinary proceeding against him, he was entitled to a full trial or hearing in those proceedings by law and he expressly waived those rights by resigning in response to those charges to avoid adjudication. See, Wilson v. Jackson, 161 AD2d 652 (2d Dept. 1990).

Petitioner's claim for violation of the New York Administrative Procedures Act in this context (i.e., for the invalidation of the Petitioner's basic training certificate) is without authority or merit. First, no authority has been presented to support the argument that Petitioner's basic training certificate is a "license" for purposes of NYAPA. See NYAPA §§ 102, 401. Instead, the training certification is a prerequisite and condition of employment (as opposed to a license to "practice policing" or to open a police station). See GML § 209-q. Significantly, GML § 209-q(b-1) expressly provides that the certificate "may be permanently invalidated upon an officer's removal for cause in accordance with subdivisions two and three of section eight hundred forty-five of the executive law." In turn, Executive Law § 845 provides the police officer with an opportunity to be heard concerning how the separation from service has been classified and recorded. See Exec. Law §§ 845(2), (3). In this case, Petitioner, through counsel, availed himself of this opportunity to be heard, after which the DCJS confirmed the appropriateness of the separation status of having been recorded as "removed for cause."

Given the nature of Petitioner's motion to amend the pleadings merely to add a summons to the pleadings and to specifically name the Commissioner of DJCS, Petitioner's motion to amend must be denied since is, as discussed above, the causes of action/requests for relief, which are repeated in the proposed amended pleadings, are devoid of merit. Ruland v. Leibowitz, 209 AD3d 1051 (2d Dept. 2022).

For the above-stated reasons, it is hereby

ORDERED that the petition herein is dismissed as a matter of law; and it further

ORDERED that Petitioner's motion for leave to amend the pleadings herein is denied.

This constitutes the Decision, Order and Judgment of the Court.