Smith v. O’Neill, 2020 WL 369505 (N.Y. App. Div. 1st Dep’t, Jan. 23, 2020)

Smith v. O’Neill
NYPD Evidence Collection Team members may be entitled to Detective status and compensation. 

{5 minutes to read}  The New York City Police Department (“NYPD”) has a long history of attempting to use non-Detective police officers to perform Detective-level work in order to curtail costs. In one of our cases, Smith v. O’Neill,[1] a case currently pending in New York State Supreme Court, members of the NYPD’s Evidence Collection Team (“ECT”) challenge this practice and assert their statutory rights to recognition as Detectives (and the associated compensation) once they have performed Detective-level work for at least 18 months. If the ECT members prevail, they will be entitled to recognition as Detectives and the increased compensation and benefits corresponding to that rank.

Background of the Dispute: Prior to 1990, the NYPD frequently “designat[ed] police officers to perform detective duties for indefinite periods of time without designating them as detectives, with the accompanying salary and benefits.” [2] By doing so, the NYPD benefited from additional Detective level labor while paying those performing the work lower, non-Detective wages. This practice led to serious inequity and morale problems within the police force.

In 1990, following repeated calls for reform, the New York City Council enacted § 14-103(b)(2) of the New York City Administrative Code (the “Code”) to combat this “widespread abuse.” [3] The statute is intended to ensure that those officers who perform detective work are paid accordingly. Under the Code, NYPD police officers who “perform the duties of a detective” for more than 18 months are entitled to Detective status and the associated compensation and benefits.

After it was enacted, the NYPD immediately resisted the requirements of the Code, determining that certain police officers fell outside of its scope and denying them Detective status and compensation. NYPD’s actions were challenged in a lawsuit, Scotto v. Dinkins, where the NYPD argued that the Police Commissioner retained discretion to interpret which police duties fell within the confines of the Code. The New York State Court of Appeals rejected NYPD’s argument, holding that the statute was intended “to eliminate the very discretion which the Commissioner now seeks to reclaim.” [4] The Court explained that the proper inquiry for determining whether a police officer is entitled to Detective status is whether the officer has performed the duties of a detective, not whether the Commissioner has classified the officer’s position as being a Detective-track position.

Following Dinkins, the NYPD attempted to circumvent the Code’s requirements by asking police officers to sign waivers foregoing the Detective level pay required by the Code. When this practice was challenged in the matter of Scotto v. Giuliani, the Court invalidated NYPD’s waiver program, noting that the waivers were unlikely to be truly voluntary and that they undermined the purpose of the Code.[5]I

In a lawsuit brought in 2006, Brown v Kerik, ECT members claimed that they were entitled to Detective status and pay because they performed duties equivalent to those of the Crime Scene Unit (“CSU”) Detectives. The Court disagreed, finding that CSU members’ duties differed in 4 important ways: CSU detectives received more training, used more sophisticated equipment, investigated more serious crimes, and coordinated more extensively with the DA’s office to prosecute crimes.[6]

Since Kerik was decided, the duties of ECT members have changed, and the NYPD indicated that it was willing to recognize them as Detectives. When the NYPD failed to follow through, ECT members filed a union grievance, and the NYPD refused to grant them Detective status. 

The ECT members filed a new lawsuit in response, alleging that they should be recognized as Detectives under the Code once they have performed their duties for more than 18 months because they now receive more extensive training, use more sophisticated equipment, investigate the most serious of crimes, and work directly with the DA’s office. In short, the ECT members argue that the Kerik court’s rationale for denying them Detective status and pay no longer applies. 

In response, the NYPD contends that the ECT members’ duties have remained essentially unchanged since the Kerik case. To resolve this factual dispute, the court will conduct a hearing to determine what duties are performed by ECT members and whether those duties are comparable to those performed by other NYPD detectives.

If you are an NYPD officer and have been performing work comparable to that of Detectives for more than 18 months, and believe that you are entitled to Detective status and compensation, you may wish to consult with the attorneys at Valli Kane & Vagnini LLP to determine your rights.


[1] Smith v. O’Neill, 2020 WL 369505 (N.Y. App. Div. 1st Dep’t, Jan. 23, 2020). 

[2] See Matter of Scotto v. Dinkins, 194 A.D.2d 415, 416 (1st Dep’t 1993).

[3] Id.

[4] Matter of Scotto v. Dinkins, 85 N.Y.2d 209, 212-13 (1995).

[5] Scotto v. Giuliani, 243 A.D.2d 388, 389 (1st Dep’t 1997). 

[6] See Matter of Brown v. Kerik, 29 A.D.3d 478 (1st Dep’t 2006).


James A. Vagnini

Rape Trauma Syndrome and Common Rape Myths

{5 minutes to read}  In January, former Hollywood movie producer Harvey Weinstein faced trial in New York Supreme Court. Weinstein, who has been accused of sexual assault and harassment by at least 80 women in the past few years, faced several charges including rape, sexual abuse, sexual misconduct, and predatory sexual assault. Ultimately, the jury returned a guilty verdict on two charges — criminal sex act in the first degree and rape in the third degree. Weinstein was acquitted of predatory sexual assault and first degree rape. Currently awaiting sentencing, he faces a minimum sentence of five years and a maximum sentence of 25 years.

As a central part of their strategy, Weinstein’s defense team argued that several of his accusers continued to remain in contact with him well after their alleged attacks. The defense pointed to “friendly communications” between Weinstein and the women, business meetings, continued employment, and even trips. This tactic was an effort to discredit the victims, and convince the jury that his encounters with his accusers were, in fact, consensual sexual relationships. However, expert testimony from psychiatrists in the field can shed light into the complex coping mechanisms of sexual assault victims that counter such a strategy.

There are many commonly believed notions regarding the behaviors of rape and sexual assault victims following an attack. However, the truth is that the reactions of victims can manifest in ways which often seem atypical to those looking from the outside in. These presupposed “rape myths” perpetuate false beliefs, namely that victims distance themselves from their attackers following an assault, and that victims report the attack to law enforcement officials. Expert testimony can be used to educate the jury on rape trauma syndrome and common rape myths.

Rape trauma syndrome (RTS) is a post-traumatic stress disorder — specifically related to sexual assault — that is accompanied by certain physical or psychological responses. Most victims of rape and sexual assault experience some form of RTS. Courts have regularly held that properly admitted expert testimony can be used to provide an explanation for victim behavior which is inconsistent with a claim of rape. Expert testimony on RTS can help the jury in resolving frequent misconceptions that often stem from social attitudes regarding sexual assault, consent, and culpability.

Reporting the Attack

In the Weinstein case, the prosecution called on Dr. Barbara Ziv, a forensic psychiatrist, to testify on rape myths and explain the complexities of rape trauma to the jury. Dr. Ziv testified that it is “very rare” for victims to immediately disclose incidents of assault to those around them and even less common for victims to report the assault to law enforcement, especially when they have been assaulted by someone they actually know. 

Similar to Dr. Ziv, experts in the field explain that it is common for victims to decide not to report attacks to the police in an effort to move past their experience. Survivors tend to feel re-victimized by the criminal justice system and decide to cope in other ways. 

Additionally, statistics show that reporting is far less likely when a victim has an established relationship with the offender — whether they are intimate partners, former intimate partners, friends, or acquaintances. 

Reasons victims decide not to report incidents of sexual assault include: 


•Fear of a lack of evidence,

•Belief the attack was a personal matter, and

•Uncertainty of the offender’s intent.

Distancing From the Attacker

Dr. Ziv also provided testimony on victims distancing themselves from their attackers — another classic rape myth. In response to their assault, a victim may decide to continue their relationship with the offender in an effort to regain control after an attack. Victims may also try to convince themselves an encounter was consensual by maintaining the status quo with their offender. This form of deflection helps victims to cope with the serious trauma they suffered at the hand of their offender and is their attempt to maintain normalcy.

In the Weinstein case, Dr. Ziv explained that the reasons for continuing communication with an offender can be complex. A victim may be fearful of losing out on job opportunities and ruining their reputation, and decide to put their experience “in a box.” These fears, coupled with threats from their offender, lead victims to deny their experiences and stay involved with offenders even after being assaulted.

James A. Vagnini