Opinion
5284 Index 100055/16
12-28-2017
In re Nicholas AMATULLI, Petitioner, v. William J. BRATTON, etc., et al., Respondents.
Tanner & Ortega, LLP, New York (Hugo Ortega of counsel), for petitioner. Zachary W. Carter, Corporation Counsel, New York (Aaron Bloom of counsel), for respondents.
Tanner & Ortega, LLP, New York (Hugo Ortega of counsel), for petitioner.
Zachary W. Carter, Corporation Counsel, New York (Aaron Bloom of counsel), for respondents.
Acosta, P.J., Richter, Mazzarelli, Andrias, Gesmer, JJ.
Determination of respondents, dated September 18, 2015, which, after a hearing, found petitioner guilty of accessing, downloading, and possessing child pornography, and terminated his employment as a police officer, 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 [Barbara Jaffee, J.], entered June 2, 2016), dismissed, without costs.
The determination that petitioner was guilty of downloading and possessing child pornography is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v. State Div. Of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). As for the downloading specification, respondents showed that 148 child pornography files were shared and downloaded to petitioner's IP address between January 26, 2013 and March 31, 2013. The dates on which these files were detected corresponded to dates on which petitioner had taken leave or a day off from work. As for the possession of child pornography specification, respondents established that the WD external hard drive found in petitioner's basement contained at least five nondeleted, graphic, child pornography videos in a "hidden" folder. Petitioner's behavior during the execution of the search warrant, during which he was found locked in the basement where he was allegedly filing comic books, and told officers there was no tower computer in the basement, even though one was later found there, provided circumstantial evidence of his guilt as to both charges (see Matter ofS & R Lake Lounge v. New York State Liq. Auth., 87 N.Y.2d 206, 209, 638 N.Y.S.2d 575, 661 N.E.2d 1355 [1995] ). The Hearing Officer was entitled to take petitioner's demeanor during his testimony into account when assessing his credibility (see e.g. Matter ofEdwards v. Safir, 282 A.D.2d 287, 723 N.Y.S.2d 355 [1st Dept. 2001] ).
Despite petitioner's tenure with the police department since 1999, the absence of any formal disciplinary record, and the fact that he had been awarded several medals, his termination for downloading and possessing child pornography does not shock our sense of fairness (see e.g. Matter ofTaylor v. New York State Div. of State Police, 28 A.D.3d 978, 813 N.Y.S.2d 572 [3d Dept. 2006] ).