Failing to take lawful action against an individual in exchange for a benefit
2014 NY Slip Op 01663, Appellate Division, First Department
A New York City police officer [Officer] was terminated from his position after being found guilty of failing to take lawful police action against an individual who was driving without a license in exchange for that individual agreeing to provide a benefit to Officer, -- “installing sheetrock at [Officer’s] home.”
The Appellate Division sustained the Commissioner’s termination of Officer, noting that substantial evidence supported the determination. Further, said the court, “The penalty of termination does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.
The Appellate Division also considered the fact that “one of the two main witnesses relied upon by the hearing officer in reaching his conclusion had recanted his testimony” some two years later.
The Commissioner, however, had denied Officer’s request for a new hearing based on “this new evidence.” The court said that the recantation raised issues that were addressed by the Commissioner, who considered the submissions by Officer and reviewed of all the evidence.*
The Appellate Division decided that “Under the circumstances, including the sufficiency of the other evidence, the witness's recantation did not warrant a further hearing.”
* The Appellate Division, citing Douglaston Civic Assn. v Galvin, 36 NY2d 1, noted that the Commissioner’s 2013 decision denying Officer's request for a new hearing based on such “new evidence” could not reviewed in the instant proceeding as a separately brought petition was required.
The decision is posted on the Internet at: