Opinion
5900 Index 101575/13
03-06-2018
In re Wilkyn ARTILES, etc., Petitioner, v. Raymond W. KELLY, etc., et al., Respondents.
Law Office of Ricardo A. Aguirre, Bronx (Ricardo A. Aguirre of counsel), for petitioner. Zachary W. Carter, Corporation Counsel, New York (Susan P. Greenberg of counsel) respondents.
Law Office of Ricardo A. Aguirre, Bronx (Ricardo A. Aguirre of counsel), for petitioner.
Zachary W. Carter, Corporation Counsel, New York (Susan P. Greenberg of counsel) respondents.
Friedman, J.P., Tom, Webber, Kern, JJ.
Determination of respondents, dated July 30, 2013, which affirmed the determination of the Assistant Deputy Commissioner of Trials dismissing petitioner from his position as a police officer, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Shlomo Hagler, J.], entered on or about September 22, 2014), dismissed, without costs.
Petitioner was terminated from his position as a police officer after he was found guilty of impersonating four individuals to file false complaints with the New York City Civilian Complaint Review Board (CCRB), and making a false report of police corruption to the police department's Internal Affairs Bureau (IAB).
Respondents' determination is supported by substantial evidence (see Matter of Berenhaus v. Ward , 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ). It is undisputed that the CCRB complaints were fabricated, that they were sent from an IP address corresponding to petitioner's home, at a time when petitioner was off-duty, and that petitioner was angry due to a lost career opportunity. It is also undisputed that petitioner's IAB report was determined to be unsubstantiated after the alleged victim denied the allegations.
The determination was also in accord with due process, as it was made after a seven-day hearing, at which petitioner was represented by counsel and had the opportunity to present evidence and cross-examine witnesses, and at which 17 witnesses testified and 28 exhibits were introduced.
Petitioner objects that one box of evidence was lost and could not be produced, and that one proposed witness—a former policeofficer who moved to another state—refused to testify despite being served with a subpoena. However, this evidence related to a prior IAB investigation that was not the basis for the termination decision and was relevant only insofar as it gave petitioner a motive to make the false complaints. Additionally, petitioner's motive was corroborated by his own testimony, and by the testimony of several other police officers. Thus, petitioner's rights were not violated by the omission of this evidence (see Matter of Gordon v. Brown , 84 N.Y.2d 574, 578, 620 N.Y.S.2d 749, 644 N.E.2d 1305 [1994] ; Matter of Miller v. Schwartz , 72 N.Y.2d 869, 870, 532 N.Y.S.2d 354, 528 N.E.2d 507 [1988] ; Matter of Pena v. Hughes , 121 A.D.3d 550, 550, 993 N.Y.S.2d 899 [1st Dept. 2014] ).
The record also does not support petitioner's contention that the hearing officer was biased against him (see Matter of Warder v. Board of Regents of Univ. of State of N.Y. , 53 N.Y.2d 186, 197, 440 N.Y.S.2d 875, 423 N.E.2d 352 [1981], cert denied 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112 [1981] ).
The penalty of dismissal is not disproportionate to petitioner's serious misconduct so as to shock the conscience (see Matter of Kelly v. Safir , 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001] ; see also Matter of Smith v. Kelly , 117 A.D.3d 564, 565, 987 N.Y.S.2d 16 [1st Dept. 2014] ; Matter of Kim v. Kelly , 104 A.D.3d 556, 556, 960 N.Y.S.2d 643 [1st Dept. 2013] ; Matter of Alvarez v. Kelly , 2 A.D.3d 219, 220, 768 N.Y.S.2d 315 [2003] ; Matter of Ildefonso v. Bratton , 238 A.D.2d 142, 142, 655 N.Y.S.2d 507 [1st Dept. 1997], lv denied 90 N.Y.2d 810, 665 N.Y.S.2d 401, 688 N.E.2d 257 [1997] ). Moreover, "[i]n matters of police discipline, we must accord great leeway to the Commissioner's determinations concerning appropriate punishment, because he ... is accountable to the public for the integrity of the Department" ( Berenhaus, 70 N.Y.2d at 445, 522 N.Y.S.2d 478, 517 N.E.2d 193 ).
We have considered petitioner's remaining arguments and find them unavailing.