Imposing a greater penalty than that recommended by a disciplinary hearing officer

Imposing a greater penalty than that recommended by a disciplinary hearing officer
2012 NY Slip Op 08219, Appellate Division, Third Department

Disciplinary charges were filed against a correction corporal [P] alleging that P struck an inmate across the face with an open hand fracturing the inmate's nose while the inmate allegedly was handcuffed and apparently intoxicated.

In the course of the disciplinary hearing P admitted that he struck the inmate and a surveillance video that recorded the incident was admitted into evidence. The Hearing Officer sustained the charges and imposed as penalty a 30-day suspension without pay.

The Ulster County Sheriff adopted the findings of the Hearing Officer as to P’s guilt but concluded that the appropriate penalty was termination of P's employment with the Sheriff's Department.

Supreme Court dismissed P’s Article 78 petition seeing to vacate his dismissal notwithstanding his “unblemished record of employment with the Department” and P appealed.

The Appellate Division sustained the lower court’s ruling, indicated that its review of the penalty imposed was "limited to whether the penalty is so disproportionate as to be shocking to one's sense of fairness" – the so-called Pell Doctrine [Pell v Board of Education, 34 NY2d 222].

Concluding the P’s dismissal was not shocking to one's sense of fairness given the supervisory nature of his position in the Department and the fact that when this incident occurred, the inmate was handcuffed and under restraint, the court explained that the Sheriff had the right, in determining the penalty to be imposed, to take into account that P did not fully disclose what transpired in the Department's official report, including the fact that he had struck the inmate while he was under restraint.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08219.htm

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