A New York City police officer [Officer] was charged and found guilty of multiple New York City Police Department patrol guide violations that occurred in five separate incidents in course of a disciplinary hearing conducted by an assistant deputy commissioner [ADC]. The penalty recommended: a "one-year dismissal probation",* a 31 day suspension without pay which , the decision notes, had already been served, and the forfeiture of 20 vacation days.
Officer filed a CPLR Article 78 petition in Supreme Court challenging the disciplinary action taken against him. Supreme Court transferred Officer's petition to the Appellate Division, which court unanimously denied Officer's petition and dismissed the action.
The Appellate Division explained that all charges against Officer that were sustained by the ADC were supported by substantial evidence in the record. The court said it found no reason to overturn the ADC's credibility determinations, noting that such determinations are "largely unreviewable".**
As to Officer's allegation that hearsay evidence had been considered by the ADC in his arriving at his determination, the Appellate Division, citing Matter of Rosa v New York City Hous. Auth., Straus Houses, 160 AD3d 499, said "hearsay evidence may be the basis for an administrative determination and — if sufficiently relevant and probative — may constitute substantial evidence alone".
Addressing Officer's objection to the disciplinary penalty imposed on him, the Appellate Division, applying the so-called Pell standard***, opined that it did not find such penalty to be so disproportionate to the offences for which Officer had been found guilty as to shock one's sense of fairness.
* No specific condition or reason is identified in the court's decision with respect an act or omission that would trigger the appointing authority's power to terminate Officer without notice and hearing while Officer was serving as a probationary employee [see Taylor v Cass, 122 A.D.2d 885].
** Berenhaus v Ward, 70 NY2d 436.
*** Pell v Board of Education, 31 NY2d 222.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_03075.htm
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A Reasonable Disciplinary Penalty Under the Circumstances
Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
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