POLICE DEPARTMENT

------------------------------------------------------------------------x
In the Matter of the Charges and Specifications : Case No.
- against - : 2023-28440
Lieutenant Jonathan Rivera :
Tax Registry No. 949550 :
Bronx Auto Larceny Unit :
------------------------------------------------------------------------x

At: Police Headquarters

One Police Plaza
New York, NY 10038

Before: Honorable Rosemarie Maldonado

Deputy Commissioner Trials

APPEARANCES:
For the CCRB: Deanna Everett-Johnson & Amanda Rodriguez, Esq.
Civilian Complaint Review Board
100 Church Street, 10th Floor
New York, NY 10007

For the Respondent: Philip Karasyk & James Moschella, Esqs.

Karasyk & Moschella, LLP
233 Broadway, Suite 2340
New York, NY 10279

To:

HONORABLE JESSICA S. TISCH

POLICE COMMISSIONER
ONE POLICE PLAZA
NEW YORK, NY 10038
LIEUTENANT JONATHAN RIVERA 2

CHARGES AND SPECIFICATIONS

1. Lieutenant Jonathan Rivera, on or about October 17, 2019, at approximately 1453 hours,
while assigned to the 52 Precinct and on duty, in the vicinity of Bainbridge Avenue and
East 211th Street, Bronx County, used force without police necessity in that, with the
intent to cause serious physical injury, he intentionally fired a shot from his firearm at
causing serious physical injury.
§ 87(2)(b)

P.G. 221-01 FORCE GUIDELINES

P.G. 221-02 USE OF FORCE
New York Penal Law §120.10(1) ASSAULT IN THE FIRST
DEGREE

2. Lieutenant Jonathan Rivera, on or about October 17, 2019, at approximately 1453 hours,
while assigned to the 52 Precinct and on duty, in the vicinity of Bainbridge Avenue and
East 211th Street, Bronx County, abused his authority as a member of the New York City
Police Department, in that he intentionally placed or attempted to place in
§ 87(2)(b)

reasonable fear of serious physical injury or death by pointing his firearm at

§ 87(2)(b)

and threatening to shoot without police necessity.

§ 87(2)(b)

P.G. 203-10, Page 1, Paragraph 5 PUBLIC CONTACT–

(now encompassed by A.G. 304-06, PROHIBITED CONDUCT
Page 1, Paragraph 1)

New York Penal Law §120.14(1) MENACING IN THE

SECOND DEGREE

Procedural History

The central issue in this disciplinary proceeding is whether Sergeant Jonathan Rivera 1

engaged in sanctionable misconduct when, on October 17, 2019, he fatally shot Mr.
§ 87(2)(b)

during a car stop. Also at issue is whether Respondent menaced during the encounter.
§ 87(2)(b)

In an administrative disciplinary hearing of this nature, this tribunal would typically be

required to determine whether police officers followed the Department’s rules and regulations as

1
Respondent was promoted to the rank of lieutenant on September 30, 2022.
LIEUTENANT JONATHAN RIVERA 3

they handled an encounter. Here, however, CCRB failed to preserve the statute of limitations

(“SOL”) and then served Respondent 30 months after the extended COVID SOL2 had expired.

As reflected in the record:

 October 17, 2019: Date of incident

 January 24, 2020: Department released segments of BWC footage to general public
 September 2020: Attorney General Report released 3
 April 17, 2021: 18-month SOL expired
 June 11, 2021: Force Investigation Division (“FID”) Report issued 4
 December 2, 2021: 26-month Extended COVID SOL expired
 December 8, 2021: CCRB received FID file
 May 10, 2022: CCRB received additional BWC footage
 May 10, 2023: CCRB Board voted to substantiate charges
 June 4, 2024: Respondent was served with charges

The tribunal is troubled by this timeline and the apparent failure of multiple entities to

adhere to statutory deadlines, particularly in a case involving a fatal police shooting. 5 In most

instances, the law prohibits the commencement of a disciplinary case where the service date is

missed. An exception to this statutory deadline is permitted pursuant to the Civil Service Law

where the misconduct “complained of and described in the charges would, if proved in a court of

2 Due to the COVID-19 pandemic, Gubernatorial Executive Order 202.8 tolled the statute of limitations for all court proceedings
in New York, including administrative trials. This gave all litigants, including CCRB, an additional seven months to serve the
charges.
3 The New York Attorney General’s Office Special Investigations and Prosecutions Unit (SIPU) investigated the matter and

concluded that they could not bring criminal charges because “the use of deadly force could not be proven to be unjustified
beyond a reasonable doubt.” (CCRB Ex. 6) § 87(2)(b)
§ 87(2)(b)

4 FID’s finding was that Respondent’s “application of force was consistent with existing law and values of the Department.” FID

did find a number of tactical violations, including when “the sergeant leaned over the front passenger leaving him in a tactically
unsafe situation as the equipment secured on his gunbelt was left exposed.” (CCRB Ex. 7 at 61)
5 The tribunal notes that the CCRB Board voted to substantiate the charges approximately 17 months after the expiration of the

extended SOL. The charges were then served 30 months after the expiration of the extended SOL. Although CCRB’s Brief states
that FID produced its official investigatory file about a week after the extended statute of limitations expired, significant
information had already been released to the public prior to that date. For example, the Department published relevant segments
of the BWC footage capturing the shooting on January 24, 2020. In addition, the Attorney General’s Report, which also included
links to relevant BWC footage, was released to the public in September 2020. Both were available at least 15 months before the
expiration of the extended SOL. Even though the production of FID’s official investigatory file was delayed, with the
information already obtained, and which in fact was entered into evidence at this hearing, efforts could have been made to
preserve the statute of limitations and then amend the pleadings if additional information was later produced.
LIEUTENANT JONATHAN RIVERA 4

appropriate jurisdiction, constitute a crime.” 6 Relying on this crime exception to the limitations

period, however, frequently results in a greater evidentiary burden for the administrative

prosecutor. Unlike disciplinary cases where charges are timely served, when the crime exception

clause is invoked it may be insufficient to prove misconduct by establishing that an officer

violated Department rules. Instead, the administrative prosecutor must establish, by a

preponderance of the evidence, the specific elements of each crime charged as set forth in the

New York State Penal Law. 7 In sum, when charges are not served by the mandated deadline, an

NYPD disciplinary hearing is distorted into a quasi-criminal proceeding. See Disciplinary Case

Nos. 2021-23558 & 23559 (April 12, 2024)

More importantly, the general laxity in compliance demonstrated here deprived this

tribunal, and the Department, of the opportunity to evaluate this member of service’s compliance

with tactical guidelines and Department rules. In fact, as taught in the Police Academy, NYPD

guidelines often impose a greater level of professional accountability than the Penal Law. 8

Unfortunately, this is not the first time a CCRB case has come before this tribunal in this

compromised procedural posture. See id.; Disciplinary Case No. 2018-19274 (Aug. 19, 2019) It

is this tribunal’s expectation that it be the last. Institutional efforts must be made to remedy this

dereliction of duty by all parties involved.

6
New York Civil Service Law Section 75(4)
7 See Disciplinary Case No. 2018-19274 (Aug. 19, 2019), citing Aronsky v. Bd. of Ed., 75 N.Y.2d 997, 1000 (1990)
8 Police Student Guide, Ch. 4, Use of Force p. 5 (Oct. 2019)
LIEUTENANT JONATHAN RIVERA 5

Introduction
The above-named member of the Department appeared before me on November 12 and

13, 2024. Respondent, through his counsel, entered a plea of Not Guilty to the subject charges.

The CCRB called Dr. Marc Brown 9 as a witness and entered into evidence documents and

videos of the incident, including Body-Worn Camera footage. Respondent called Detectives

Michelle Almanzar and Edward Barrett as witnesses, and testified on his own behalf. The

parties also submitted post-trial legal briefs on December 11 and 12, 2024, respectively. 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, I find Respondent

Guilty of Specification 1 and recommend that he be terminated from his employment with the

Department. Specification 2 is dismissed as untimely.

ANALYSIS

1. Summary of Facts

On October 17, 2019, Police Officers Michelle Almanzar and Edward Barrett 10 were

working as Neighborhood Coordination Officers (“NCO”) assigned to the 52 Precinct in the

Bronx. Respondent was the supervising Neighborhood Coordination Sergeant. The primary

goal of NCOs is to lead community engagement efforts and develop crime strategies that address

9 The tribunal listened to and considered the testimony of Dr. Marc Brown, who was qualified at trial as an expert in police use of
force and police training, tactics, and procedures. (Tr. 41, 49; CCRB Ex. 9) The purpose of an expert witness is to provide the
factfinder with information it does not have or aid the court in its understanding of the issues at bar. The weight to be given such
testimony lies within the judge’s sole discretion. See People v. Cronin, 60 N.Y.2d 430 (1983); Enu v. Sobol,171 A.D.2d 302 (3d
Dept. 1991) After careful consideration of the trial record in its entirety, the tribunal based its findings, not on the expert’s
testimony or opinions, which focused on police tactics, but on the video evidence, exhibits and testimony of the fact witnesses.

10 Barrett and Almanzar have since been promoted to the rank of detective.
LIEUTENANT JONATHAN RIVERA 6

community concerns. That morning, Police Officers Almanzar and Barrett started their tour of

duty participating in the Coffee with a Cop program – an NYPD initiative aimed at giving

neighborhood residents an opportunity to interact with police officers and raise concerns. (Tr.

140, 171-72, 223; CCRB Ex. 7 [FID Report] at 23, 27)

At approximately 1100 hours, Officers Almanzar and Barrett resumed their patrol duties

in a marked RMP. Respondent, their NCO supervisor for the day, joined them on patrol later

that afternoon. P.O. Barrett was the RMP operator, Respondent was positioned in the front

passenger seat and P.O. Almanzar was in the rear. All were in uniform. (Tr. 141, 152, 184, 223-

24; CCRB Ex. 7 at 23, 27)

At approximately 1449 hours, as the RMP traveled eastbound on East 211th Street, it

passed a 2018 Volkswagen Atlas with Virginia plates traveling in the opposite direction. P.O.

Barrett indicated to Respondent and P.O. Almanzar that the driver was not wearing a seatbelt.

P.O. Barrett made a U-turn and pulled up next to the driver side of the vehicle, which had

stopped at a traffic light on the corner of Bainbridge Avenue. P.O. Barrett then activated the

RMP’s lights and sirens. According to Respondent, the driver appeared to look “confused,” so

he pointed, indicating for the driver to stop. The Volkswagen Atlas turned onto Bainbridge

Avenue and pulled over. P.O. Barrett parked the RMP behind the Volkswagen. The vehicle had

two occupants: the driver, and the front passenger, . (Tr.

§ 87(2)(b)
§ 87(2)(b) § 87(2)(b)

152, 173-74, 185, 223-24; CCRB Ex. 7 at 14-15, 20, 28)

Before exiting the RMP, all three uniformed members of service activated their body-

worn cameras (“BWC”). Much of the ensuing interaction between the officers and the vehicle

occupants was recorded and is not in dispute. (CCRB Ex. 7 at 21, 24, 28; CCRB Exs. 1 [Resp.

BWC], 2 [Barrett BWC], 3 [Almanzar BWC])

LIEUTENANT JONATHAN RIVERA 7

Body-worn camera footage captures Police Officers Barrett and Almanzar approaching

the driver side of the Volkswagen Atlas as Respondent positions himself by the passenger door.

and P.O. Barrett politely greet each other. Upon request, hands over
§ 87(2)(b) § 87(2)(b)

documentation and indicates that the Volkswagen Atlas “is a rental.” When P.O. Barrett

requests his driver’s license a second time, produces one. P.O. Barrett then informs
§ 87(2)(b)

him that he was stopped for not wearing a seatbelt. interjects that both he and his
§ 87(2)(b)

passenger always fasten their seatbelts because he had previously been ticketed for that exact

violation. P.O. Barrett acknowledges that the vehicle occupants have their seatbelts on and

replies that, “it looked like” they were not wearing seatbelts, maybe “[be]cause it’s black on

black” – apparently referring to the color of the seatbelt and shirt. Respondent seems
§ 87(2)(b)

to speculate that the officer may have thought that “because the seat is low….” (Tr. 143, 153-54,

174, 186-88, 224-25, 259; CCRB Ex. 1 at 0:35-1:08; CCRB Ex. 2 at 0:32-1:09)

P.O. Barrett then asks, “Where are you guys headed now?” explains that he left
§ 87(2)(b)

his girlfriend’s home to pick up his daughter in Washington Heights. complies with
§ 87(2)(b)

P.O. Barrett’s request to lower the vehicle’s rear windows. P.O. Almanzar moves the rear

window shade to look inside. (CCRB Ex. 1 at 1:09-1:25; CCRB Ex. 2 at 1:10-1:1:25)

The driver’s license produced was from Ohio and the name on it was
§ 87(2)(b) § 87(2)(b)

Unbeknownst to the officers, is brother. P.O. Barrett notes

§ 87(2)(b) § 87(2)(b)
§ 87(2)(b)

that the license is from Ohio. clarifies that he “just moved” and is awaiting “a new
§ 87(2)(b)

one.” When P.O. Barrett queries about the name and birthdate denoted therein,
§ 87(2)(b)

confirms both. (CCRB Ex. 2 at 1:28-1:43; CCRB Ex. 7 [FID Report] at 19; Tr. 154, 174-75)

As P.O. Barrett utilizes his Department cellphone to conduct a warrant search,

Respondent initiates a casual conversation about the vehicle, commenting on its size. Both 87(2)
§

(b)
LIEUTENANT JONATHAN RIVERA 8

and the passenger amiably report that the vehicle is “horrible.” When Respondent asks if it
§ 87(2)
(b)

is their first winter driving it, the passengers remind him that it is only “a rental.” (CCRB Ex. 1 at

1:49-2:15; Tr. 189, 258) During this casual conversation, P.O. Barrett’s database search yielded
11
multiple active warrants associated with At this point, P.O. Barrett leans to the left
§ 87(2)(b)

across the hood of the vehicle and says to Respondent, “Hey Sarge, he popped, so I’m just going

to talk to him real quick.” Respondent replies, “Alright cool.” (CCRB Ex. 1 at 2:15-2:18; CCRB

Ex. 7 at 15, 58; Tr. 154, 175, 191, 225, 259) 12

At approximately 1451 hours, Officer Barrett instructs to exit the vehicle,

§ 87(2)(b)

explaining, “I’m just gonna talk to you real quick.” immediately complies and stands
§ 87(2)(b)

between the vehicle and the open door. P.O. Barrett tells “You’re not in trouble man,
§ 87(2)(b)

but I just got to talk to you . . . come back here…You’re good. Just make sure your car is in

park.” P.O. Barrett then asks, “Do you have anything you’re not supposed to have?”
§ 87(2)(b)

responds, “Nah, I don’t have nothing.” P.O. Barrett again asks, “You sure?”
§ 87(2)(b)

immediately replies, “Positive.” (CCRB Ex. 1 at 2:18-2:33; CCRB Ex. 2 at 2:19-2:35; Tr. 244,

175-76, 192-93, 226; CCRB Ex. 7 at 15)

P.O. Barrett then explains that he is going to “pat [ down real quick.” As P.O.
§ 87(2)(b)

Barrett turns away from the driver to hand over the documentation to P.O. Almanzar,
§ 87(2)(b)

steps back into the vehicle, pulls the door, grabs the steering wheel and reaches for the gearshift.

Police Officers Barrett and Almanzar unsuccessfully attempt to pull out of the vehicle
§ 87(2)(b)

11 § 87(2)(b) § 87(2)(b) § 87(2)(b)

12 § 87(2)(b) § 87(2)(b)
§ 87(2)(b)
§ 87(2)(b)
LIEUTENANT JONATHAN RIVERA 9

as P.O. Almanzar yells, “What are you doing?” and “Put it in park, put it in park.” (CCRB Ex. 1

at 2:34-2:49; CCRB Ex. 2 at 2:36-2:50; Tr. 145, 176, 194-95, 226)

actively resists the officers’ attempt to take him into custody and an
§ 87(2)(b)

approximately 92-second struggle ensues. At approximately 1452 hours, Respondent leans into

the front passenger window and deploys his Taser at for four consecutive, five-second
§ 87(2)(b)

cycles. (CCRB Ex. 7 at 16, 32, 56, 59) screams as Respondent yells, “Pull him out.
§ 87(2)(b)

Pull him out.” The passenger raises his hands as this transpires. shouts, “Quítamelo”
§ 87(2)(b)

and removes the Taser prongs from his upper right chest. He then grasps the steering wheel with

his left hand and the gearshift with his right hand. (CCRB Ex. 1 at 2:41-2:55; CCRB Ex. 2 at

2:40-2:56; Tr. 159, 197-99, 227)

P.O. Barrett stands between the driver and the open door as he punches with his
§ 87(2)(b)

right fist and again attempts to pull him out. P.O. Almanzar yells, “Put it in park, put in in park,

Eddie.” who is 5’ 10” and weighs 246 lbs., braces himself and refuses to comply.
§ 87(2)(b)

(CCRB Ex. 3 at 2:55-3:05; CCRB Ex. 5 at 2) At approximately 1452 hours, Respondent opens

the front passenger door and climbs onto the passenger sitting in the front seat. Respondent then

transitions the Taser to his left hand, draws his service weapon with his right hand, points it

directly at and shouts, “Yo, if I have to end up fucking shooting you bro . . .Yo boss,
§ 87(2)(b)

I’m going to fucking shoot you.” With Respondent stretched out on top of him, the front-seat

passenger implores, “Take my seatbelt off. . . take my seatbelt off,” and then pleads, “Don’t

shoot me. Don’t shoot me….” P.O. Barrett grabs head and attempts to pull him out
§ 87(2)(b)

of the vehicle. Both police officers continue to yell, in sum and substance, “Put it in park. Put it

in park.” When that does not work, P.O. Barrett attempts to pull hands away from
§ 87(2)(b)
LIEUTENANT JONATHAN RIVERA 10

the steering wheel while again repeating, “Park. Park. Park.” Respondent answers, “It’s in park.”

(CCRB Ex. 1 at 2:56-3:22; Tr. 178, 203, 228-30, 271, 275)

Respondent then holsters his firearm and uses hand strikes against who
§ 87(2)(b)

questions, “Why you hitting me?” P.O. Barrett continues his efforts to remove as
§ 87(2)(b)

Respondent commands, “Get the fuck up.” P.O. Almanzar repeatedly shouts the order, “Get out

the car.” The passenger continues to repeat, “Don’t shoot me.” At approximately 1453 hours,

P.O. Almanzar calls for backup. Respondent, who is laid across the front seat passenger, strikes

near the head and neck area with the butt of the Taser. They continue struggling for
§ 87(2)(b)

control of the gearshift. P.O. Almanzar orders out of the vehicle and yells, “Yo Sarge,
§ 87(2)(b)

park, park, park.” Respondent’s BWC seems to fall off in the vehicle and is deactivated at

14:53:08 hours. (CCRB Ex. 1 at 3:23-3:36; CCRB Ex. 2 at 3:25-3:50; CCRB Ex. at 3:22-4:00;

CCRB Ex. 7 at 16; Tr. 146, 204, 230-31)

At about 14:53:47 hours, the vehicle’s engine revs and it surges forward several feet.

P.O. Almanzar shouts, “Oh my god.” When the vehicle abruptly stops, P.O. Almanzar grabs the

driver’s side door with her right hand. P.O. Barrett continues to struggle with At
§ 87(2)(b)

approximately 14:53:50 hours, the vehicle accelerates in reverse for several feet. This makes

P.O. Almanzar release the door and causes P.O. Barrett’s BWC to dislodge. P.O. Barrett is

pushed back by the vehicle door and spins away a few feet toward the rear of the Atlas. At

approximately 14:53:52 hours, the vehicle stops and the door slams shut. P.O. Almanzar yells,

“Sarge,” and P.O. Barrett immediately lunges back toward the driver side door. At

approximately 14:53:53 hours, P.O. Barrett stands beside the open driver side window as he

places his left hand on the front door handle. According to Respondent, at that moment the
LIEUTENANT JONATHAN RIVERA 11

vehicle’s gearshift is in park. (CCRB Ex. 2 at 3:47-4:11; CCRB Ex. 3 at 4:05-4:12; CCRB Ex. 4

[bystander video] at 00:01-00:21; CCRB Ex. 7 at 16; Tr. 147, 178-80, 205-08, 231-32, 288)

Also at 14:53:53 hours, and as P.O. Barrett stands by the open driver side window

grabbing the door handle, Respondent discharges one round from his service firearm into 87(2)
§

(b)

chest at point blank range. screams, “Ahh, he shot me.” (CCRB Ex. 3 at 4:12-
§ 87(2)(b)

4:16; CCRB Ex. 4 at 00:22-00:24; CCRB Ex. 7 at 17, 60; Tr. 180, 232-33, 287)

P.O. Barrett immediately pulls out of the car and handcuffs him. Although
§ 87(2)(b)

P.O. Barrett testified that he did not recall, P.O. Almanzar indicated that he immediately

administered CPR. At approximately 1454 hours, Respondent calls for an ambulance. At 1455

hours, Respondent crouches down and says, “start doing CPR.” P.O. Almanzar asks whether he

needs gloves. As Respondent continues crouching, he seems to put on the gloves and starts

administering CPR. Someone is heard saying, “Stay with me . . . stay with me, man.” At 1456

hours, the BWC footage captures Respondent standing up with bloodied gloves on his hands.

(CCRB Ex. 3 at 4:40-4:42, 5:41-5:56; CCRB Ex. 4 at 00:32-00:56; CCRB Ex. 4A; Tr. 149, 180-

81, 233; CCRB Ex. 7 at 17, 60) At approximately 1456 hours, EMS arrives to take over CPR. A

medic declares, “I have a pulse.” P.O. Almanzar utters, “Oh, thank God.” (CCRB Ex. 3 at 7:00-

7:34) While the EMT is performing CPR on Respondent mutters, “Fuck.” P.O.
§ 87(2)(b)

Almanzar states, “I called an 85, you were stuck in the car.” Respondent replies, “The engine

was on, man. I was fighting. My hand was getting tired.” (CCRB Ex. 3 at 07:52-08:03)
§ 87(2)(b) § 87(2)(b)

A nurse at the emergency

room recovered the following from pants pocket: (i) alleged narcotics packaged in a
§ 87(2)(b)
LIEUTENANT JONATHAN RIVERA 12

clear Ziploc bag; (ii) alleged ecstasy (MDMA) packaged in a green Ziploc bag; and (iii) alleged

narcotics wrapped in two bundles. The two Ziploc bags containing the alleged illegal narcotics

were sent to the Police Laboratory and tested positive for cocaine and methamphetamine. The

two bundles tested negative for controlled substances. (CCRB Ex. 7 at 17-18)
§ 87(2)(b)

§
87(2)
(b)

§ 87(2)(b)

2. Specification 1: Assault in the First Degree

CCRB seeks Respondent’s termination for the fatal shooting of As noted

§ 87(2)(b)

above, because Respondent was not served within the extended statute of limitations period, a

finding of misconduct cannot turn on whether Respondent’s actions violated tactics set forth in

the Patrol Guide. Due to this procedural irregularity, in place of using the Departmental

construct applied to most disciplinary hearings, CCRB has the burden of proving all elements of

Assault in the First Degree by a preponderance of the evidence. 13

Specification 1 mirrors New York Penal Law §120.10(1), which provides that “a person

is guilty of assault in the first degree when, with intent to cause serious physical injury… he

13 It is well-established law that although CCRB must prove the elements of a crime under the Penal Law, it must do so by a

preponderance of the evidence. This standard is a much lower than what is required in criminal court proceedings: that is, proof
beyond a reasonable doubt. See Disciplinary Case No. 2018-19274 (Aug. 19, 2019), citing Police Dept. v. Baksh, OATH Index
No. 1471/97 (Oct. 2, 1997); see also Dept. of Correction v. Salinas, OATH Index No. 1375/24 (May 17, 2024), aff’d, NYC Civ.
Serv. Comm’n Case No. 2024-0308 (Oct. 7, 2024); Dept. of Correction v. Blanc, OATH Index No. 2571/11 at 5 (Feb. 2, 2012);
Dept. of Correction v. Battle, OATH Index No. 1052/02 at 7-9 (Nov. 12, 2002), citing Aronsky v. Bd. of Education, 75 N.Y.2d
997, 1000 (1990)
LIEUTENANT JONATHAN RIVERA 13

causes such injury to such person by means of a deadly weapon or a dangerous instrument.”

Therefore, CCRB has the burden of proving that:

i. Respondent, with intent to cause serious physical injury to fired his

§ 87(2)(b)

service firearm: and,

ii. The firearm discharge caused serious physical injury.

Respondent admits that he shot but claims that he was legally justified in doing
§ 87(2)(b)

so. Specifically, the defense contends that the reason Respondent shot was because he
§ 87(2)(b)

reasonably feared for the immediate safety of P.O. Barrett. Since the defense of justification has

been interposed, CCRB has the additional burden of disproving, by a preponderance of the

evidence, Respondent’s asserted defense. See People v. Steele, 26 N.Y.2d 526, 528 (1970),

People v. Clark, 129 A.D.3d 1, 36 (2d Dept. 2015)

There is no dispute that Respondent intentionally put his firearm to chest and
§ 87(2)(b)

fired a single shot, fatally wounding Accordingly, the elements of Penal Law
§ 87(2)(b)

§120.10(1) were established.

In dispute is whether Respondent was legally justified in using deadly force as that

defense is defined in the Penal Law. Under New York Penal Law §35.15(2), “A person may not

use deadly physical force upon another person … unless: (a) the actor reasonably believes that

such other person is using or about to use deadly physical force.” The Penal Law further

provides that an individual may not use deadly physical force in self-defense if they can safely

retreat. Police officers, however, are exempt from this requirement if they are acting pursuant to

Penal Law §35.30, which states in relevant part:

(1) A police officer or a peace officer, in the course of effecting or attempting to effect an
arrest, or of preventing or attempting to prevent the escape from custody, of a person whom
he or she reasonably believes to have committed an offense, may use physical force when
and to the extent he or she reasonably believes such to be necessary to effect the arrest, or
to prevent the escape from custody, or in self-defense or to defend a third person from what
LIEUTENANT JONATHAN RIVERA 14

he or she reasonably believes to be the use or imminent use of physical force; except that
deadly physical force may be used for such purposes only when he or she reasonably
believes that . . . (c) Regardless of the particular offense which is the subject of the arrest
or attempted escape, the use of deadly physical force is necessary to defend the police
officer or peace officer or another person from what the officer reasonably believes to be
the use or imminent use of deadly physical force. [emphasis added]

It is uncontested that Respondent and his team had probable cause to lawfully arrest 87(2)
§

(b)

based on the active warrants issued to the person whose license he handed over to the

officers. 14 It is further uncontested that resisted arrest by ignoring numerous police

§ 87(2)(b)

orders, reentering his vehicle and actively struggling against the officers attempting to stop him

from escaping. Therefore, the issue before this tribunal is whether CCRB disproved that

Respondent’s use of deadly force was “necessary” to defend against what he “reasonably

believed” was the “imminent use of deadly physical force” by against P.O. Barrett.
§ 87(2)(b)

In New York State, the Court of Appeals has established that the standard for evaluating

whether a justification defense is disproved requires both a subjective and an objective analysis.

As the Court explained in People v. Goetz, 68 N.Y.2d 96 (1986):

Thus, consistent with most justification provisions, [the Penal Law] 15 permits the use of
deadly physical force only where requirements as to triggering conditions and the
necessity of a particular response are met…. As to the triggering conditions, the statute
requires that the actor “reasonably believes” that another person either is using or about
to use deadly force….. As to the need for the use of deadly physical force as a response,
the statute requires that the actor “reasonably believes” that such is necessary to avert the
perceived threat.

It is well-established law that in making such determinations, the “critical focus must be

placed on the particular defendant and the circumstances actually confronting him at the time of

14 At the time, the officers had no reason to suspect that the license § 87(2)(b) produced belonged to his brother.
15As noted in the Attorney General’s Report, the Court of Appeals has not directly defined the term “reasonably
believe” in Penal Law §35.30, but has instead defined this term within the context of analyzing a parallel justification statute,
Penal Law §35.15, which applies more broadly to all citizens invoking this defense. (CCRB Ex. 6 at 8-9)
LIEUTENANT JONATHAN RIVERA 15

the incident.” See People v. Douglas, 29 A.D.3d 47, 50 (1st Dept. 2006), quoting People v.

Wesley, 76 N.Y.2d 555, 559 (1990), citing Goetz, 68 N.Y.2d at 112-15. Courts are reluctant to

closely second guess the “split second decisions” of officers in difficult circumstances. Instead,

the emphasis must be on whether an officer's conduct was objectively reasonable. See Koeiman

v. City of N.Y., 36 A.D.3d 451 (1st Dept. 2007), citing Graham v. Connor, 490 U.S. 386, 396

(1989)

As such, determining whether Respondent “reasonably believed” deadly physical force to

be necessary to defend P.O. Barrett requires a two part analysis. First, Respondent must have

actually believed that was using or about to use deadly force against P.O. Barrett and
§ 87(2)(b)

that Respondent’s own use of deadly physical force was necessary to defend that officer from

imminent harm. Second, the tribunal must find that a reasonable person in Respondent’s

position would have believed that too.

a. Subjective Test

As noted above, the defense asserts that Respondent was justified in shooting
§ 87(2)(b)

because he believed it was necessary to protect P.O. Barrett from the imminent danger of being

crushed under the vehicle. Accordingly, the threshold inquiry focuses on Respondent’s

subjective belief. Specifically, this tribunal must decide whether, at the moment he shot 87(2)
§

(b)

Respondent actually believed that the threat of deadly physical force against P.O. Barrett

was imminent and that discharging his firearm was necessary to stop that peril. 16 See People v.

16 As noted above, the legal standard requires that this tribunal evaluate Respondent’s actual beliefs about what constituted

imminent danger warranting deadly force. At trial, Respondent specifically asserted that his decision to discharge his firearm was
based on an immediate fear for P.O. Barrett’s life. During cross-examination, he was asked whether he was “also concerned that
[he] might be injured.” Respondent answered, “That was also a concern. But my primary concern was Detective Barrett.” (Tr.
286) Respondent’s post-trial brief also recognized the generalized danger resulting from § 87(2)(b) resistance, however, it
underscored Respondent’s trial testimony that the immediacy which justified the shooting was his belief that “any further
movement of the car would seriously injure or kill Barrett. Discharging his firearm was the last resort and the only way to prevent
such injury or death.” (Respondent’s Post-Trial Brief at 7) Accordingly, this analysis focuses on the immediate danger to P.O
Barrett, as articulated by Respondent.
LIEUTENANT JONATHAN RIVERA 16

McClellan, 49 A.D.3d 1203, 1204 (4th Dept. 2008), quoting Wesley, 76 N.Y.2d at 559 (finder of

fact “must first determine whether defendant ‘actually believed that deadly physical force was

necessary’”) After careful review of the record in its entirety, this tribunal finds that the

preponderance of the credible evidence disproved that this was Respondent’s actual belief when

he discharged his firearm.

It is undisputed that after P.O. Barrett informed that he was going to “pat him
§ 87(2)(b)

down,” quickly reentered the Volkswagen Atlas. He then grabbed the steering wheel
§ 87(2)(b)

and gearshift and attempted to escape. P.O. Barrett instantly stepped between and the
§ 87(2)(b)

open driver side door and began pulling out of the vehicle. actively resisted
§ 87(2)(b) § 87(2)(b)

by bracing himself with the steering wheel. At trial, Respondent testified that because P.O.

Barrett was “interlocked” with he worried that if the vehicle moved, it “would hurt
§ 87(2)(b)

somebody.” (Tr. 227) As a result, Respondent deployed a Taser to momentarily immobilize 87(2)
§

(b)

and give P.O. Barrett and P.O Almanzar an opportunity to detain him.

When the Taser deployment failed, again engaged the gearshift, even as the
§ 87(2)(b)

police officers continued fighting to remove him. According to Respondent, he had “no other

option but to enter the vehicle... to try to stop him from using the drive shift to pull off and drag

Barrett.” (Tr. 229) At this point, P.O. Barrett was still “interlocked” with as he
§ 87(2)(b)

struggled to extract him. (Tr. 228) Respondent testified that he also attempted to gain

compliance by pointing his firearm at and threatening to shoot him. Respondent

§ 87(2)(b)

asserted that he holstered his firearm once he placed the gearshift in park.

On the one hand, the record supports a finding that active resistance during
§ 87(2)(b)

this encounter put all the members of service on the scene in a vulnerable position, particularly

when P.O. Barrett was standing between the driver’s seat and the open front door. The
LIEUTENANT JONATHAN RIVERA 17

dispositive question here, however, is whether, when Respondent pulled the trigger, he actually

believed that P.O. Barrett was in imminent danger of being crushed if the vehicle moved because

he had fallen under the vehicle.

It is undisputed that immediately before the shooting, the vehicle’s engine revved and it

abruptly surged forward several feet with P.O. Barrett still positioned between the driver and the

open door. Recognizing the risk, P.O. Almanzar cried out, “Oh my god.” When the vehicle

stopped, P.O. Almanzar grabbed the driver side door with her right hand as P.O. Barrett

continued to struggle with The vehicle suddenly accelerated in reverse and stopped
§ 87(2)(b)

after a few feet. This movement caused P.O. Almanzar to release the door and P.O. Barrett to be

pushed back. P.O. Barrett spun away from the driver side door as it closed and, still standing,

halted by the rear of the vehicle. P.O. Almanzar yelled, “Sarge,” 17 and P.O. Barrett immediately

lunged back to the driver side door, stood in front of its open window and placed his left hand on

the door handle. Respondent testified that the gearshift was in park at that time. (Tr. 272, 288)

Just as P.O. Barrett reappeared by the open driver side window, Respondent fired a

single shot, at point blank range, directly into the left side of chest. Approximately
§ 87(2)(b)

two seconds had elapsed between the moment P.O. Barrett stumbled as the car accelerated in

reverse and the moment Respondent discharged his firearm. According to Respondent, when the

vehicle accelerated in reverse:

[The] door hit Barrett and Barrett goes flying out of my sight out of my view. I couldn't
see him. And I feared the worst. I thought he was under the car. I thought…any
movement was going to crush Barrett. And I made the decision to shoot one shot to his --
to his chest to mitigate and stop the threat…. I feared Barrett was underneath vehicle. . . .
I thought … any movement was going to crush Barrett. [A]t that moment, I didn't feel
like I had any other option. (Tr. 231-32)

17 Respondent testified that he did not recall hearing P.O Almanzar call out to him. (Tr. 282-83)
LIEUTENANT JONATHAN RIVERA 18

Few things are more difficult, yet more fundamental to the role of a trier of fact, than the

task of attempting to reconstruct the most probable nature of a past event. While the law creates

a framework within which such a task is accomplished, the courts have established

that, “Resolution of questions of credibility and the weight of evidence is primarily the province

of the finder of fact, who has had the opportunity to see and hear the witnesses.” Matter of

Bennett v. Phillips, 175 A.D.2d 934 (2d Dept. 1991), citing People v. Gaimari, 176 N.Y. 84

(1903) (“The memory, motive, mental capacity, accuracy of observation and statement,

truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety

by those who see and hear than by those who simply read the printed narrative.”) In sum,

credibility assessments of trial witnesses remain the exclusive province of the fact finder.

This tribunal does not take this responsibility lightly. It is only after a meticulous review

of the complete record that it concludes that the preponderance of the credible evidence casts

serious doubt on, and ultimately disproves, Respondent’s assertion that when he fired the fatal

shot directly into chest, he actually believed it was necessary to protect P.O. Barrett
§ 87(2)(b)

from imminent deadly force. Indeed, several key factors convinced this tribunal that

Respondent’s testimony on this point was contrived.

First, Respondent’s reaction immediately after the shooting is not consistent with that of a

sergeant who had just shot a subject to protect his officer from being “crushed” under a vehicle.

For example, upon exiting the Volkswagen Atlas, Respondent does not inquire about P.O.

Barrett, does not express surprise or relief that he was uninjured, nor does he make any assertion

relating to that officer’s well-being or safety. Even making allowances for the shock of the

moment, if P.O. Barrett’s safety was the reason for shooting the subject, it stands to reason that

Respondent would have expressed that concern at the scene. His failure to do so does not
LIEUTENANT JONATHAN RIVERA 19

comport with logic, common sense or basic human nature. As if to underscore this point,

Respondent’s apparent indifference and silence in this regard contrasts sharply to P.O. Almanzar

and P.O. Barrett, who repeatedly ask Respondent himself, “Sarge, you good?” (CCRB Ex. 3 at

5:14-5:16)

Second, as EMS is treating Respondent mutters, “Fuck.” P.O. Almanzar

§ 87(2)(b)

responds, “I called an 85, you were stuck in the car.” Respondent explains, “The engine was on,

man. I was fighting. My hand was getting tired.” (CCRB Ex. at 7:58-8:02) Again, Respondent

makes no reference to his fears about P.O. Barrett’s safety.

Under New York State law, this type of excited utterance carries significant indicia of

reliability because it is deemed to have been made:

… under the immediate and uncontrolled domination of the senses, and during the brief
period when considerations of self-interest could not have been brought fully to bear by
reasoned reflection.… [T]he utterance may be taken as particularly trustworthy (or, at least,
as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of
the speaker’s belief as to the facts just observed by him. People v. Brown, 70 N.Y.2d 513,
518 (1987), quoting People v. Marks, 6 N.Y.2d 67, 71 (1959).

Respondent’s spontaneous statement, made less than four minutes after the shooting,

raises serious doubts about his subsequent assertions that he shot because he believed
§ 87(2)(b)

P.O. Barrett was in mortal danger. Instead, the logical inference is that his excited utterance

constituted an admission that Respondent discharged his firearm because he was not able to

control the subject and sought to terminate the encounter because, in his own words, he was

“tired.”

Third, although this tribunal recognizes that the intensity of the moments immediately

following a shooting likely left Respondent in a distressed state of mind, his trial testimony

supports a credibility finding that the plain meaning of his excited utterance warrants significant
LIEUTENANT JONATHAN RIVERA 20

probative weight. Specifically, this tribunal is highly skeptical of Respondent’s trial testimony

attempting to clarify what he meant when he told P.O. Almanzar that his “hand was getting

tired.”

During cross-examination, Respondent was asked, “And isn't it true that you said to

Detective Almanzar that your hand was tired from fighting?” [emphasis added] Respondent,

defensively, rejoined:

Not from fighting. You are…so when I was… now I remember. When I was doing CPR,
my hand got tired. And then part of CPR is to instruct other people to take over CPR for
you when your arms get tired. You add other word saying from fighting. (Tr. 304)

After being shown the BWC footage recording his statement, Respondent doubled down by

stubbornly asserting, “Right after the CPR, too. That’s right there. If you play it back more, I was

just doing CPR.” (Tr. 305)

When viewed within the context of his conversation with P.O. Almanzar, the explanation

Respondent provided at trial amounts to a non-sequitur. Put simply, it defies logic. P.O.

Almanzar is quite obviously referring to the struggle in the vehicle when mentioning the radio

call for backup. It is within this framework that Respondent answers that the “engine was on,”

he was “fighting” and his hand was “tired.” Neither witness made any reference that would

permit this tribunal to infer that they were discussing the administration of CPR. This tribunal

finds that Respondent’s insistence at trial that he was referring to the stress of administering CPR

when he said his hand was tired, is an after the fact fabrication created to conceal his actual

motivation for using deadly force. Adding to this tribunal’s suspicion that Respondent was not

forthright at trial is that he rendered aid for less than one minute and that he stopped, not because

he followed his training to “instruct other people” to take over, but because EMS arrived. These

facts make it even less likely that CPR was the actual cause of Respondent’s stated discomfort.
LIEUTENANT JONATHAN RIVERA 21

(Tr. 233, 304; CCRB Ex. 3 at 5:45-6:35) Rather, it is more likely that his hand was tired as a

result of his struggle with which was his focus, and that he chose to use maximum
§ 87(2)(b)

force to end it.

It is also revealing that from the outset of their efforts to detain Respondent
§ 87(2)(b)

verbalized his intent to shoot As he first stretched out over the front seat of the
§ 87(2)(b)

vehicle, Respondent drew his service firearm, pointed it directly at and shouted, “Yo, if
§ 87(2)(b)

I have to end up fucking shooting you bro . . .Yo boss, I’m going to fucking shoot you.”

Respondent articulated his mindset to use lethal force, and actually pointed his firearm directly at

even before the vehicle’s sudden acceleration and P.O. Barrett’s stumble. Indeed, it
§ 87(2)(b)

was only when P.O. Barrett was no longer at the door assisting with the extraction, that he

followed through on his threat.

In sum, Respondent’s carefully constructed departure from the truth could not be

reconciled with the totality of circumstances and fell apart under the weight of the credible

evidence. Respondent has an obvious interest in the outcome of this disciplinary hearing and a

strong motive to present a version of events that justifies his actions. Moreover, his unabashed

obstinacy on cross-examination raised serious questions about his credibility and

judgment. Thus, this tribunal concludes that critical portions of Respondent’s account were self-

serving statements fabricated to minimize his culpability. This undermined his credibility and

the truthfulness of his stated subjective belief that it was immediately necessary to discharge his

firearm to protect P.O. Barrett.

This finding alone is sufficient to disprove the justification defense. Accordingly, this

tribunal finds that the preponderance of the evidence disproved Respondent’s defense and that he

is guilty of the misconduct set forth in Specification 1.

LIEUTENANT JONATHAN RIVERA 22

b. Objective Test

Even if this tribunal had credited Respondent’s assertion that at the time of the shooting

he actually believed P.O. Barrett was under the vehicle and in imminent mortal danger, the law

would still require an assessment to determine whether that belief was objectively reasonable.

Indeed, this is because an honest belief, no matter how genuine, may still be unreasonable. A

careful review of the record has led this tribunal to conclude that, under these specific

circumstances, Respondent’s stated belief and subsequent actions were not objectively

reasonable. In short, the preponderance of the evidence disproved that a reasonable sergeant

under similar circumstances would have believed that the deadly force used was necessary to

avert imminent danger. See People v. Castillo, 2024 N.Y. Slip Op. 05817 (Nov. 21, 2024),

quoting People v. Collice, 41 N.Y.2d 906, 907 (1977); Goetz, 68 N.Y.2d at 115

Analyzing the reasonableness of a police officer’s actions “requires careful attention to

the facts and circumstances of each particular case.” This tribunal is mindful that it is often

“reasonable for police to move quickly if delay would gravely endanger their lives or the lives of

others,” and that this “is true even when, judged with the benefit of hindsight, the officers may

have made some mistakes.” See City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 612

(2015); Graham v. Connor, 490 U.S. 386, 396 (1989)

There are, however, limits to the deference given to police officers acting under these

circumstances. The critical focus must be on what a reasonable sergeant in these particular

circumstances and “having defendant's background and experiences would conclude.” See

Wesley, 76 N.Y.2d at 559; N.Y. Crim. Jury Instr. 2d Penal Law § 35.15 (2) Thus, mistakes or

errors of judgment while doing police work must not be so unreasonable as to be considered
LIEUTENANT JONATHAN RIVERA 23

negligent or careless. 18 The U.S. Supreme Court has recognized that, “Because many situations

which confront officers in the course of executing their duties are more or less ambiguous, room

must be allowed for some mistakes on their part. But the mistakes must be those of reasonable

men, acting on facts leading sensibly to their conclusions of probability.” Brinegar v. U.S., 338

U.S. 160, 176 (1949) [emphasis added] 19

As discussed in detail above, Respondent raised the defense that the shooting of
§ 87(2)(b)

was justified because he believed P.O. Barrett had fallen under the vehicle and that he was in

imminent danger of being “crushed” if the vehicle moved. The record, however, disproved that

this was an objectively reasonable belief at the moment Respondent discharged his firearm.

Instead, Respondent made an uninformed decision and reacted with maximum force to what

amounted to an assumed danger.

At trial, Respondent testified about this critical moment as follows: “I see the door hit

Barrett and he goes flying out of my sight out of my view. I couldn't see him. And I feared the

worst. I thought he was under the car. . . ,” and that “any movement was going to crush Barrett”

(Tr. 231-32) Inasmuch as Respondent was lying across the front seat of the vehicle at that time,

it is likely that P.O. Barrett could have been out of his line of sight, even if temporarily. No

doubt, this gave Respondent reason to be generally apprehensive about P.O. Barrett's safety.

However, P.O. Barrett falling under the vehicle was only one of many possible outcomes. For

deadly force to be justified under the Penal Law, it is critical that officers act upon more than a

18Within the disciplinary context, the degree of carelessness warranting sanction must be more than de minimis. See
Disciplinary Case No. 2012-7616 (March 28, 2017), citing Ryan v. N.Y.S. Liquor Auth., 273 A.D. 576, 581 (3d Dept. 1948);
Disciplinary Case No. 2015-13936 (Sept. 13, 2016), citing McGinigle v. Town of Greenburgh, 48 N.Y.2d 949 (1979)
19Although the Brinegar case involved a warrantless search, the tribunal found the "reasonableness test" articulated by the
United States Supreme Court to be instructive in setting forth a standard for determining the reasonableness of an officer's
actions.
LIEUTENANT JONATHAN RIVERA 24

mere possibility, particularly when there is no visual confirmation of the imagined danger.

Conjecture or speculation of imminent deadly harm falls far short of what the law requires to

justify an officer taking a life.

That P.O. Barrett stumbled, but did not fall, by itself, is insufficient to disprove the

justification defense. However, as noted above in Brinegar, 338 U.S. at 176, mistakes made by a

sergeant in the course of executing his duties “must be those of reasonable men, acting on facts

leading sensibly to their conclusions of probability.” In short, a reasonable belief should be

founded on more than fear, conjecture or assumptions.

Respondent’s decision to shoot directly into the left side of the subject’s chest, at point

blank range, required more than P.O. Barrett stumbling out of Respondent’s line of sight when

the vehicle jumped into reverse. To be clear, this record revealed no additional indicators that

the lethal threat he feared was imminent. Instead, what Respondent articulated was a mere

possibility, or an unfounded assumption, as the rationale for firing a fatal shot directly into the

subject’s chest. For example, not only did Respondent not see P.O. Barrett fall under the

vehicle, the record is devoid of any evidence that there was some sound suggesting that P.O.

Barrett was in that position. Moreover, there was no evidence that either police officer screamed

in distress or yelled out a warning concerning that danger. A scream, a specific noise indicating

impact, or a bump when the vehicle stopped, would have elevated the risk level and provided

some reasonable indication that the feared threat was immediate and unavoidable. At trial,

however, Respondent articulated none of these, nor any similar factors, as part of his risk

assessment. In sum, there were no objective indicators supporting Respondent’s purported belief

that P.O. Barrett was in immediate mortal danger.

LIEUTENANT JONATHAN RIVERA 25

This tribunal acknowledges that this was a quickly evolving and tumultuous car stop

involving a subject who was resisting and struggling for control of the vehicle. However, even

within this context, a reasonable sergeant confronting similar circumstances would have taken

some steps to confirm the actual position of his officers before firing a fatal shot. Here,

Respondent took no steps to verify his unfounded assumption that P.O. Barrett was in imminent

danger of being crushed under the vehicle before resorting to deadly force at point blank range.

It is especially disturbing that, even though the vehicle was in park at the time, Respondent did

not even call out to his officers to determine their positions or ascertain whether they were in

imminent danger. According to Respondent, “I'm not going to yell and scream -- and wait for a

response when I need to move and act quickly.” (Tr. 282-83) Respondent’s flippant and

dismissive demeanor at trial trivialized the need for a founded risk assessment and buttressed the

conclusion that his actions were not those of a reasonable sergeant.

Moreover, Respondent did not even assert during his direct testimony that he attempted

to look up to determine the actual position of his two officers prior to firing the fatal shot, even

though the vehicle gearshift was in park. Instead, he claimed that, “As soon as I -- I fired the

shot, Detective Barrett reappears in my line of sight. He opens the door.” (Tr. 232) Respondent’s

testimony that P.O. Barrett “reappears” only after he shoots, leads this tribunal to infer that, at

best, he assessed the risks without making any reasonable efforts to confirm his alleged fears.

The questionable nature of Respondent’s answers on cross-examination served to further

undermine the reliability of his defense that he acted reasonably. The following exchanges are

telling:

Q. When the car jerks back, you don't think to look up and see where your fellow
officers are?
LIEUTENANT JONATHAN RIVERA 26

A. I -- Barrett was on my left -- on the -- driver's side door and the doors closed and
he's not by the window or nothing like that.
Q. So prior to you discharging your firearm, you did not look, correct?
A. I did look. I did not see them.

At this point, Respondent views footage which shows P.O. Barrett at the driver side window as

the shot was fired. (CCRB Ex. 4)

Q. Now when you heard the shot, Barrett is standing in the window; isn't that right?
A. No. He's by the pillar.

Q. You would agree Barrett is not a small gentleman, correct?

A. Correct.

Q. Now, how is it that you can look up but still not see him at the time?
A. Didn't see him at the time. (Tr. 285-86)

This tribunal is highly skeptical of Respondent’s claim that he did not see P.O. Barrett

because he was behind the pillar separating the front and rear doors of the vehicle. To be clear,

missing P.O. Barrett’s reappearance unto itself is not sufficient to disprove that he acted

reasonably. What is troubling here is the attempt to convince this tribunal that P.O Barrett was

not at the window and was completely hidden from view. In this tribunal’s estimation, the pillar

separating the vehicle doors is approximately six to seven inches wide. While it may be accurate

to state that part of P.O. Barrett’s right shoulder was obscured behind the pillar, he was not

crouched behind it, his body was not bladed, and his face, and the entire left side of his torso,

were in front of the open driver side window. Respondent’s insistence that P.O. Barrett was

entirely concealed “by the [door] pillar” lacked the ring of truth and seemed designed to insulate

him from any criticism that he acted unreasonably by not looking sooner. In short, against the

weight of the evidence, Respondent contrived an after the fact story that he did look, but P.O.

Barrett was not visible.

LIEUTENANT JONATHAN RIVERA 27

It is also concerning that, at trial, P.O. Barrett reinforced Respondent’s misleading

statement by also testifying that he was not visible at the window when Respondent shot 87(2)
§

(b)

but at the vehicle’s door pillar. Below is the relevant exchange which took place at his

FID interview and which was read into the trial record:

Q. Okay. So then you repositioned yourself to get a good vantage point of the
discharge?
A. The door opens, the door is closed, it goes -- the car goes forward again to almost
where it was. I go to the car, I open the door. And at that point, I see Sergeant
Rivera. That's when he had the gun to his chest and he pulled the trigger and he
shot him. 20 (Tr. 210)
At trial, P.O. Barrett walked back this statement and claimed that he “didn't go far enough where

I could actually see” Respondent and that he could only observe the firearm before the shot. (Tr.

208-09) After being asked to watch BWC footage to confirm his position at that critical

moment, he is asked:

Q. Does that refresh your recollection as to where you were when the shot went off?
A. Yes.
Q. And where were you?
A. I was at the pillar, when you open the door. I'm not exactly sure what pillar that is.
But I'm not completely in front of the driver. I was right at that pillar. (Tr. 216)

P.O. Barrett’s contradictory statements support this tribunal’s finding that both witnesses

obfuscated the truth in an attempt to mislead the finder of fact by representing that P.O. Barrett

could not be seen by Respondent, even if he had tried to look for him. In sum, they

unsuccessfully attempted to cast Respondent’s actions in a more favorable light and establish

that Respondent acted reasonably under these particular circumstances.

20 Though the full transcript is not in evidence, Respondent’s counsel stipulated that this was P.O. Barrett’s transcribed response

to FID. (Tr. 210-11)

LIEUTENANT JONATHAN RIVERA 28

It is also important to underscore that a reasonable sergeant’s risk assessment would have

also been informed by his training. While this is not a case where the findings turn on tactical or

Patrol Guide violations, training cannot be ignored as a basis for assessing reasonable police

conduct. Although this is not the scenario that first comes to mind when reading the

Department's prohibition against discharging firearms at or from a moving vehicle, 21 the

message is clear: officers are trained to think differently about risks posed by subjects seeking to

flee in a vehicle in close proximity to them. In contrast to other threats which expressly justify

the use of deadly physical force, Department protocols explicitly forbid firing on operators who

present with this danger. Department directives on this point state the expectations: officers are

instructed to jump out of the path of the vehicle. 22 Respondent disregarded these directives in

his threat assessment of actions and the appropriate response to it.

§ 87(2)(b)

This tribunal also notes that Respondent bears some responsibility for placing himself in

a position where he forfeited his command and control of the scene and his ability to watch over

the officers he was supervising. Specifically, Respondent could have easily ascertained that P.O.

Barrett was not underneath the vehicle if he had not entered it himself, thereby compromising his

visual of the overall scene. That decision was not objectively reasonable for an experienced

sergeant.

In sum, the evidence disproved that, at the moment of the shooting, Respondent had an

objectively reasonable ground to believe that it was necessary to use deadly force against 87(2)
§

(b)

On the contrary, the record established that Respondent's threat assessment was

speculative and uncorroborated and should not have been met with the highest level of force; in

21
P.G. 221-01, Page 3, Prohibition (f) (CCRB Ex. 13)
22 CCRB Ex. 10 at 22-23
LIEUTENANT JONATHAN RIVERA 29

essence the firing of a "kill shot." Reasonable sergeants of his experience do not shoot at point

blank range into a subject’s chest based on what amounts to conjecture or speculative fear. To

be objectively reasonable under these particular circumstances requires at least some verification

that the use of deadly physical force is imminent.

Accordingly, this tribunal finds that the preponderance of the credible evidence

disproved that Respondent was justified in intentionally shooting As such, he is found

§ 87(2)(b)

Guilty of the misconduct set forth in Specification 1.

3. Specification 2: Menacing in the Second Degree

As noted above, because Respondent was not served within the extended statute of

limitations period, CCRB has the burden of proving, by a preponderance of the evidence, all

elements of Penal Law §120.14 (1), Menacing in the Second Degree. In short, the record must

establish that Respondent intentionally placed, or attempted to place, in reasonable fear

§ 87(2)(b)

of serious physical injury or death by pointing his firearm directly at him.

It is uncontested that during the struggle, Respondent opened the front passenger door

and climbed onto the passenger in the front seat. He then transitioned the Taser to his left hand,

drew his service weapon with his right hand, pointed it directly at and shouted, “Yo, if
§ 87(2)(b)

I have to end up fucking shooting you, bro . . .Yo boss, I’m going to fucking shoot you.”

Questions of whether Respondent’s actions conformed solely with Patrol Guide force

directives is not at issue here. Instead, the analysis must focus on whether Respondent's conduct

satisfies the Penal Law definition of menacing. was simultaneously engaged in a

§ 87(2)(b)

physical struggle with P.O. Barrett and Respondent while trying to drive away and avoid arrest.

In addition, did not comply with repeated orders from the officers to get out of the
§ 87(2)(b)

vehicle and less lethal force, including Taser discharges, were ineffective. Although this threat
LIEUTENANT JONATHAN RIVERA 30

of force may have violated certain standards set forth in the Patrol Guide, it did not rise to the

level of criminality. To hold otherwise would ignore the law enforcement context of these

actions. As such, this Penal Law section does not logically apply to this set of

circumstances. Accordingly, Specification 2 is dismissed as untimely.

PENALTY

In order to determine an appropriate penalty, this tribunal, guided by the Department’s

Disciplinary System Penalty Guidelines, considered all relevant facts and circumstances,

including potential aggravating and mitigating factors established in the record. Respondent’s

employment history also was examined. See 38 RCNY § 15-07. Information from his personnel

record that was considered in making this penalty recommendation is contained in an attached

memorandum.

Respondent, who was appointed to the Department on July 6, 2010, has one prior

adjudication from 2013 where he pled guilty to repeatedly contacting a female via telephone and

text messages, using profanity and derogatory language. As part of a negotiated settlement,

Respondent forfeited 30 suspension days without pay and cooperated with Department

counseling. Respondent also has one prior firearm discharge, from December 2013, which FID

classified as “Adversarial Within Guidelines.” (CCRB Ex. 7 at 5)

CCRB seeks Respondent’s termination for the fatal shooting of This tribunal
§ 87(2)(b)

agrees with that recommendation. The Department’s Disciplinary Guidelines are painstakingly

clear that there is only one appropriate penalty for misconduct of this nature. The presumptive

penalty for deadly physical force resulting in serious physical injury or death is termination; the

Guidelines do not allow for a mitigated penalty in these matters.

LIEUTENANT JONATHAN RIVERA 31

Termination is also consistent with the penalty in prior cases where an officer’s

misconduct resulted in civilian loss of life. Members of service, particularly supervisors like

Respondent, are entrusted with significant power and authority. At the same time, it is expected

that they will exercise reasonable, prudent judgment even when confronted with extraordinarily

stressful, sometimes frightening, situations. Here, Respondent’s actions fell far short of what the

Department expects from its members, and tragically, lost his life. As this
§ 87(2)(b)
§ 87(2)(b)

tribunal has previously stated, “there is only one appropriate penalty for the grave misconduct

that yielded an equally grave result,” Respondent can no longer serve as a member of the NYPD.

See Disciplinary Case No. 2018-19274 (Aug. 19, 2019); see also Disciplinary Case No. 2017-

17490 (Sept. 20, 2023); Disciplinary Case No. 2012-7616 (March 28, 2017) Accordingly, I

recommend that Respondent be dismissed from the New York City Police Department.

Respectfully submitted,

Rosemarie Maldonado
Deputy Commissioner Trials