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June 9, 2014

Imposing the penalty of dismissal held reasonable under the circumstances



Imposing the penalty of dismissal held reasonable under the circumstances
2014 NY Slip Op 03064, Appellate Division, Fourth Department

A former New York State Trooper [Former], commenced a CPLR Article 78 proceeding seeking to annul the Superintendent's determination finding him guilty of misconduct or, in the alternative, to vacate the penalty of dismissal. Former contended that the determination is not supported by substantial evidence and that the penalty is shocking to one's sense of fairness.

The charges against Former alleged that he knew of certain illegal activities and did not take proper police action to stop them; that he knowingly frequented an establishment where violations of the law existed; that he provided false information during the internal investigation; and that, by his conduct, he brought discredit to the Division of State Police.

The Hearing Board found Former guilty of all of the charges filed against him but one. The Superintendent accepted the findings and recommendations of the Hearing Board and dismissed Former from the Division of State Police.

The standard of review for the Appellate Divisions and the Court of Appeals in such cases is whether there was substantial evidence to support the Hearing Officer's decision" Rejecting Former’s contention to the contrary, the Appellate Division concluded that, we conclude that the Superintendent’s determination was supported by substantial evidence.

Although Former denied having any knowledge of the illegal activities alleged, there was substantial evidence establishing the contrary, i.e., that he was aware of those activities. Further, said the court, Former gave numerous inconsistent statements regarding whether he knew certain facts and evaded answering basic questions. The Appellate Division concluded that the Hearing Board properly determined that such evidence is indicative of a consciousness of guilt.

The Appellate Division explained that although a different finding would not have been unreasonable, "where [, as here,] substantial evidence exists' to support a decision being reviewed by the courts, that determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions' "

Turning to the penalty imposed, dismissal from the Division, the court said that it did not agree with Former that the penalty of dismissal is shocking to one's sense of fairness. "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law . . . and a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

Further, said the court, "[i]n matters concerning police discipline, great leeway' must be accorded to the [Superintendent's] determinations concerning the appropriate punishment, for it is the [Superintendent], not the courts, who is accountable to the public for the integrity of the [Division of State Police]," citing Kelly, 96 NY2d 32 among other decisions.

Given the nature of the offenses, the "higher standard of fitness and character [that] pertains to police officers," Former's evasive conduct and his refusal to accept any responsibility for his conduct, the Appellate Division concluded that the penalty of dismissal does not shock one's sense of fairness.

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