December 8, 2021

The Hearing Officer conducting an administrative disciplinary action was free to credit the testimony of witnesses corroborating an infant's statements concerning the event underlying the disciplinary action

The petitioner [Plaintiff] in this CPLR Article 78 action challenged the New York City Police Commissioner's decision to terminate Plaintiff's employment with the New York City Police Department [NYPD] upon findings Plaintiff guilty of, among other things, engaging "in conduct prejudicial to the good order, efficiency, and discipline" of the NYPD.

The Appellate Division unanimously confirmed the Police Commissioner's decision, finding that testimony provided in the course of the disciplinary hearing constituted substantial evidence to support the finding that Plaintiff "struck a three-year-old child on the chest." 

Citing Matter of Freeman v Ward, 162 AD2d 127, leave to appeal denied 76 NY2d 706, the court explained that the Hearing Officer was free to credit the witnesses' testimony corroborating the child's statements, since weighing the evidence and choosing between conflicting accounts was solely within the province of the administrative agency."

In addition, the Appellate Division opined that substantial evidence supported a finding that Plaintiff was guilty of making "misleading statements regarding the incident to an NYPD investigator during an official interview," as Plaintiff's statements to the investigator contradicted credible evidence of the alleged conduct.

As to the penalty imposed, termination, the court said that the penalty of dismissal does not shock the conscience, citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222."

The Appellate Division also noted that "Where police discipline is at issue, [judicial review] must allow 'great leeway' to the Commissioner's determinations regarding the appropriate punishment" to be imposed and, citing Matter of Kelly v Safir, 96 NY2d 32, observed that it is for "... the Commissioner, not the courts, who is accountable to the public for the integrity of the Department" to determine the disciplinary penalty to be imposed.

Click HERE to access the full text of the Appellate Division's decision.

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