Where there is a conflict in the testimony offered in the course of a disciplinary hearing and either of two inferences may be drawn, the duty of choosing between the inferences is the agency's, and the courts may not reject the agency's choice

 

Matter of Henn v Sewell

2024 NY Slip Op 02984

Decided on May 30, 2024

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.

Decided and Entered: May 30, 2024
Before: Moulton, J.P., Scarpulla, Shulman, Higgitt, O'Neill Levy, JJ.

Index No. 152739/23 Appeal No. 2401 Case No. 2023-05125

[*1]In the Matter of Brian Henn, Petitioner,

v

Keechant L. Sewell etc., et al., Respondents.

Worth, London & Martinez, LLP, New York (Stuart Gold of counsel), for petitioner.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Geoffrey E. Curfman of counsel), for respondents.

        Determination of respondent Police Commissioner, dated November 29, 2022, which, to the extent appealed from as limited by the briefs, found petitioner guilty of two charges of inappropriate statements and one charge of inaccurate statements during an investigation, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order, Supreme Court, New York County [Kathleen Waterman-Marshall, J.], entered October 5, 2023), dismissed, without costs.

The determination is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180 [1978]). The New York City Police Department (NYPD) carefully weighed the evidence before it, discussing in detail the strengths and weaknesses of the testimonial and documentary evidence. Based on this analysis, the NYPD determined that petitioner had made inappropriate statements motivated by ethnicity and perceived religious affiliation. The Commissioner also had a rational basis for finding that petitioner provided an inaccurate statement during the investigation regarding his inability to recall sending offensive images by text to another officer, given the memorable nature of the images and that petitioner testified that he did not send the images to anyone else. Moreover, petitioner later testified at the hearing that he did recall sending the images to the officer. "[W]here there is a conflict in the testimony and either of two inferences may be drawn, the duty of choosing between the inferences is the agency's, and the courts may not reject the agency's choice" (Matter of Fields v New York State Off. of Children & Family Servs., 198 AD3d 454, 455 [1st Dept 2021]).

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: May 30, 2024