| Matter of Bassett v Fenton |
| 2009 NY Slip Op 09338 [68 AD3d 1385] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Timothy J. Bassett, Petitioner, v Preston L. Fenton,as Acting Superintendent of the New York State Police, Respondent. |
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Cardona, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondentterminating petitioner's employment as a New York State Trooper.
Following a disciplinary hearing, a Hearing Board recommended that petitioner, a StateTrooper, be found guilty of three charges of misconduct and one count of conduct tending tobring discredit upon the Division of State Police. The first two charges of misconduct stemmedfrom separate incidents: the first, on January 8, 2007, when petitioner, among other things, fledfrom two marked State Police vehicles and, during the ensuing high speed pursuit, failed to haltat two stop signs; the second, on March 26, 2007, when he left threatening messages on thetelephone answering machine of Jessica Wilczek, the mother of one of his children, "that alsoreflected an improper attempt to coerce her into not using legal counsel regarding a jointcustodial matter when she had a right to do so." The remaining two disciplinary chargesemanated from a series of events occurring on March 26, 2007, resulting in petitioner beingaccused of causing and protracting a lengthy standoff with police and rescue personnel after hebarricaded himself in his residence indicating he might harm himself while, at the same time,[*2]issuing a series of demands before voluntarily exiting thebuilding. Due to the findings of guilt on these charges, the Hearing Board recommended thatpetitioner's employment be terminated. Respondent accepted the findings and terminatedpetitioner's employment. This transferred CPLR article 78 proceeding ensued.
Contrary to petitioner's assertion, the record contains substantial evidence supporting thedetermination finding him guilty of the four disciplinary charges. Regarding the first chargeinvolving the high-speed chase, not only was there testimony from two State Troopers whorecognized and pursued petitioner, there was also confirmatory audio and video tapes of thepursuit from the in-car system mounted in one of the patrol cars. Additionally, Wilczek testifiedthat petitioner spoke to her by cell phone during the incident and expressed awareness that hewas being pursued by State Police. With regard to the second misconduct charge, Wilczektestified that, after she told petitioner she was going to consult an attorney about custody andsupport issues involving their infant son, petitioner threatened her by saying that she was going"to be arrested for endangering the welfare of a child." Wilczek contacted petitioner's supervisorand was told that no complaint or investigation had been conducted and there was no basis forpetitioner to be making statements of that nature. Wilczek testified that petitioner continued tocall her that day and the threatening voice messages from her answering machine were producedat the hearing. The Hearing Board found Wilczek's testimony credible and consistent with thetaped messages produced as evidence.
Regarding the third disciplinary charge for misconduct and the fourth alleging actionstending to bring discredit upon the Division of State Police, the Hearing Board relied upon thetestimony of several witnesses, including Wilczek. According to Wilczek, petitioner soundeddespondent when she spoke to him again on March 26, 2007, after she told him she would notleave their son at his house due to his intoxicated state. The Hearing Board also creditedtestimonies from three State Troopers that they had been informed that petitioner might harmhimself. They indicated that they had spoken with petitioner and believed him to be at risk, thatpetitioner refused to exit his residence and that the barricade situation outside his residencecontinued for over two hours, during which time petitioner made various demands to speak topeople, including Wilczek.
In our view, "the record clearly supports respondent['s] findings as to the challengedcharges" (Matter of Wilburn v McMahon, 296 AD2d 805, 806 [2002]). Althoughpetitioner attempts to minimize the seriousness of his actions in, for example, leading a highspeed chase and instigating a substantial mobilization of police and rescue resources by refusingto leave his residence, the proof belies the assertion that the charges were erroneous or merelythe result of excusable lapses in judgment brought about by stress that were blown out ofproportion.[FN*]Notably, to the extent that petitioner's testimony differed from that of the other witnesses at trialconcerning the incidents, this presented a credibility issue that the Hearing Board was entitled toresolve (see Matter of Tessiero vBennett, 50 AD3d 1368, 1369 [2008]; Matter of Mokszycki v McMahon, 6 AD3d 952, 953 [2004]).Thus, we find no basis to disturb the findings of guilt as to [*3]the disciplinary charges.
Turning lastly to petitioner's challenge to the penalty of termination, he claims that theevents underlying the subject charges were "a manifestation of his temporary mental illness forwhich he has received treatment and for which he should not be terminated." While the recordsets forth in detail petitioner's emotional stress over the ending of his relationship with Wilczekand their ensuing custody disagreements, we are unpersuaded, under the particular circumstancesherein, that the penalty of dismissal was "so disproportionate to the offense as to shock our senseof fairness" (Matter of Mokszycki v McMahon, 6 AD3d at 953).
Significantly, "a State Trooper holds a position of great sensitivity and trust" (Matter ofCarney v Kirwan, 44 AD2d 613, 614 [1974]; see Matter of Gadway v Connelie, 101AD2d 974, 975 [1984]) and "[a] higher standard of fitness and character pertains to policeofficers than to ordinary civil servants" (Matter of Faure v Chesworth, 111 AD2d 578,579 [1985]). Along these lines, we note that the recommendation to terminate petitioner focusedmainly on petitioner's actions after his mental health treatment and during thedisciplinary hearing when, as found by the Hearing Board, petitioner repeatedly contradicted hisown prior sworn statements and failed to "accept[ ] personal responsibility" for conduct that he,as a State Trooper, should know was wrong, such as leading other troopers on a high speed chaseand perpetuating a barricade situation. Given the fact that the "determination of an appropriatesanction involves a matter of internal discipline within a law enforcement organization, [and] isentitled to deference" (Matter of Wilburn v McMahon, 296 AD2d at 807), we find nobasis to disturb the penalty imposed herein.
Peters, Kane, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.
Footnote *: Petitioner points out that, afterthe events of March 2007, he received inpatient and outpatient treatment for his depression,anxiety and alcohol dependency and, upon completion of that treatment, was certified fit forduty.