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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

January 3, 2011

Evaluating the credibility of a witness in a disciplinary action

Evaluating the credibility of a witness in a disciplinary action
Jackson v McMahon, 275 AD2d 546

The Appellate Division upheld the disciplinary determinations and penalties imposed by the Commissioner of State Police on four troopers who were found guilty of misconduct and neglect of duty after being found sleeping in their patrol cars while on duty at about 3:30 in the morning.

The troopers had stopped the two patrol cars in which they were riding to set up radar surveillance during the early morning and were found asleep during a random check by their supervisor. The Disciplinary Board found them guilty of charges of misconduct and neglect of duty and recommended penalties ranging from suspension without pay for ten days and censure to suspension for twenty days and censure for this misconduct. The Superintendent adopted the Board’s findings and recommendations.

The troopers appealed their being found guilty of the charges and the penalties imposed, alleging that Disciplinary Board’s determinations were not supported by substantial evidence.

The Appellate Division rejected their claims, holding that its review of the record indicated that the supervisor gave detailed testimony concerning his observations of troopers that indicated that the four were asleep while performing his supervisory check.

True, said the court, the troopers denied that they were sleeping when approached by the supervisor. True, said the court, the troopers submitted testimony casting doubt on the accuracy of the supervisor’s observations. This, however, presented a question of credibility, which the Board was free to resolve against troopers and the court declined to substitute its judgment for that of the Board and the Superintendent.

The Appellate Division said that the test applied [i]n assessing whether an administrative decision is supported by substantial evidence is whether the finding is supported by the type of evidence that a reasonable mind might accept as adequate to support the conclusion reached, citing Doolittle v McMahon, 245 AD2d 736. Under these standards, the court said that it could not say that the supervisor’s testimony did not support the findings of guilt and declined to disturb the Board’s determinations.

As to the penalties imposed, the court said that much deference is to be afforded to an agency’s determination regarding a sanction, especially in situations where, as here, matters of internal discipline in a law enforcement organization are concerned, quoting from Santos v Chesworth, 133 AD2d 1001. Considering the particular circumstances presented in this case, the court said that it did not find the penalties imposed upon troopers so disproportionate to the offense as to shock one’s sense of fairness.

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