The
|
Matter of Santos
v Sewell |
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2024 NY Slip Op
03556 |
|
Decided on |
|
Appellate Division,
First Department |
|
Published by New York State Law Reporting
Bureau pursuant to Judiciary Law § 431. |
|
This opinion is uncorrected and subject to revision before
publication in the Official Reports. |
Index No. 151966/23 Appeal No. 2573 Case No.
2023-04620
[*1]In the Matter of Helder
v
Keechant L. Sewell etc., et al., Respondents-Respondents.
Worth,
Sylvia O.
Hinds-Radix, Corporation Counsel,
Judgment (denominated an order) Supreme Court, New York County
(Frank P. Nervo, J.), entered August 18, 2023, which, to the extent appealed as
limited by the briefs, denied the petition to annul respondents' November 3,
2022 determination terminating petitioner's employment as a police officer and
dismissed the proceeding brought pursuant to CPLR article 78, unanimously
affirmed, without costs.
The penalty of
dismissal from employment as a police officer for use of cocaine does not shock
the conscience and is not disproportionate to the misconduct (Matter of
Gordon v Brown, 84 NY2d 574, 580 [1994]). This Court has upheld this
penalty numerous times over the years in similar situations (see Matter of Quire v City of New York, 189 AD3d 467,
468 [1st Dept 2020]; Matter of Lumezi v Bratton, 147 AD3d 566 [1st
Dept 2017]; Matter of Jones v Kelly, 111 AD3d 415 [1st Dept
2013]).
Petitioner contends
that respondents and the court did not consider the harmful effect on his
family of termination of his employment and loss of pension benefits under
circumstances where he asserts the drug test results were in doubt. However,
the Police Commissioner found that there was no reasonable dispute concerning
the test results and in matters of police discipline, great leeway is accorded
the Police Commissioner's determination concerning appropriate punishment
because, the Commissioner, not the courts, are accountable to the public for
the integrity of the police force (Trotta v Ward, 77 NY2d 827,
828 [1991]). Moreover, the NYPD Disciplinary System Penalty Guidelines provide
for termination from employment as the presumptive penalty for a positive drug
test for cocaine and ingestion of a banned substance. The Police Commissioner
expressly stated that she had considered the totality of the circumstances and
issues in making her determination, contrary to petitioner's claim.
We have considered
petitioner's remaining arguments and find them unavailing.
THIS CONSTITUTES
THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST
DEPARTMENT.
ENTERED:
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