Opinion
Decided July 10, 2001.
Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered November 28, 2000, which, in a proceeding pursuant to CPLR article 78 (transferred to the Appellate Division by order of the Supreme Court, entered in New York County), modified, on the facts, and, as modified, confirmed a determination of respondent New York City Police Department finding petitioner guilty of making false or misleading statements at an internal investigation interview and teminating his employment. The modification consisted of vacating the penalty of dismissal and remanding the matter to respondent for imposition of a lesser penalty.
A. Orli Spanier, for appellant.
Eugene Prosnitz, for respondent.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
MEMORANDUM
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the petition dismissed in its entirety.
After a disciplinary hearing, the Police Commissioner found that petitioner Jeffrey Harp, an Internal Affairs officer, wrongfully made false and misleading statements while under oath at an official interview regarding his activities in connection with a matter under Internal Affairs investigation. The Appellate Division held that this determination was supported by substantial evidence. Finding the administrative penalty to be excessive, the court vacated petitioner's dismissal and remanded for reconsideration.
An administrative penalty must be upheld unless it "is so disproportionate to the offense as to be shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 237; CPLR 7803). Under the circumstances of this case, it cannot be concluded that, as a matter of law, "the penalty of dismissal imposed by the Commissioner shocks the judicial conscience" (Matter of Kelly v. Safir, 96 N.Y.2d 32, 39-40; see also, Matter of Ansbro v. McGuire, 49 N.Y.2d 872, 874).
On review of submissions pursuant to section 500.4 of the Rules, order, insofar as appealed from, reversed, with costs, and petition dismissed in its entirety, in a memorandum.