Opinion
TP 02-00954
November 15, 2002.
CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Monroe County (Frazee, J.), entered February 6, 2002, seeking to annul a disciplinary determination.
TREVETT, LENWEAVER SALZER, P.C., ROCHESTER (KATHERINE PICCOLA OF COUNSEL), FOR PETITIONER.
LINDA S. KINGSLEY, CORPORATION COUNSEL, ROCHESTER (JEFFREY EICHNER OF COUNSEL), FOR RESPONDENTS.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.
Memorandum:
Petitioner, a police officer with respondent Rochester Police Department, commenced this CPLR article 78 proceeding seeking to annul the determination that he violated two Rochester Police Department Rules and Regulations when he intentionally struck a civilian with a flashlight and then denied having done so in a subsequent report and statement. Based on those violations, petitioner was suspended from his employment for 60 days without pay and was permanently removed from an emergency task force. Contrary to petitioner's contention, the determination is supported by substantial evidence ( see e.g. Matter of Pignato v. City of Rochester, 288 A.D.2d 825, 826, appeal dismissed 97 N.Y.2d 725, lv denied 98 N.Y.2d 604; see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181-182), although the evidence supporting the determination is entirely circumstantial ( see Matter of Motell v. Napolitano, 186 A.D.2d 989, 990; New York State Labor Relations Bd. v. Shattuck Co., 260 A.D. 315, 325; see also Matter of S R Lake Lounge v. New York State Liq. Auth., 87 N.Y.2d 206, 209-210; Matter of Hassane [Sweeney], 241 A.D.2d 730). The opposing evidence presented by petitioner merely created a credibility issue for the Hearing Officer to resolve in the exercise of his exclusive fact-finding authority ( see Matter of Wiley v. Hiller, 277 A.D.2d 1024, 1025, appeal dismissed 96 N.Y.2d 852; see also Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444). Thus, we conclude that there is a rational basis in the record to support both the Hearing Officer's findings sustaining the charges and the determination of respondent Chief of Police adopting those findings ( see Motell, 186 A.D.2d at 990). Finally, the penalty imposed is not shocking to one's sense of fairness ( see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale Mamaroneck, Westchester County, 34 N.Y.2d 222, 234-235; see also Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, rearg denied 96 N.Y.2d 854).