| Matter of Kittle v D'Amico |
| 2016 NY Slip Op 05608 [141 AD3d 991] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Terry E. Kittle,Appellant, v Joseph A. D'Amico, as Superintendent of the State Police,Respondent. |
DeNigris Law Firm PLLC, Albany (Stephen G. DeNigris of counsel), forappellant.
Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the Supreme Court (Melkonian, J.), enteredJanuary 28, 2015 in Albany County, which dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to review a determination of respondentdenying petitioner's request for the issuance of a State Police Retired Memberidentification card.
Petitioner was employed as a state trooper from July 25, 1987 until his retirement onMarch 29, 2012. In late December 2011, petitioner was involved in an incident in whichit was alleged that he committed serious misconduct by failing to take appropriate policeaction when he neglected to conduct a field sobriety test on a "fatigued" driver that heencountered on the New York State Thruway. Instead, petitioner had the driver's vehicletowed from the Thruway and, after the driver paid his tow bill, he drove away.Approximately one hour later, the State Police received a report that the same vehiclewas stopped in the center of the road on the Thruway. Another trooper responded,observed that the driver appeared intoxicated, administered a field sobriety test and abreath analysis test—which indicated that the driver had a 0.39% blood alcoholcontent—and arrested the driver. The Internal Affairs Bureau (hereinafter IAB)investigated the incident and, in a report dated March 14, 2012, designated the complaintagainst petitioner as founded and recommended appropriate administrative action. Twodays after IAB issued its report, but before formal disciplinary charges were filed againstpetitioner, he submitted notice of his intent to retire.
[*2] On March 20, 2012, petitioner requested thatrespondent issue him, among other things, a State Police Retired Member identificationcard.[FN1]Respondent denied petitioner's application, reasoning that petitioner did not retire ingood standing because he had engaged in serious misconduct and retired in order toavoid disciplinary action. Petitioner then commenced this CPLR article 78proceeding,[FN2]challenging respondent's determination as arbitrary and capricious and without a rationalbasis because petitioner was not facing any charges of serious misconduct at the time thathe retired. Supreme Court dismissed the petition, and petitioner now appeals.
We affirm. "This Court's review of an administrative determination such as the one atissue is limited to whether the determination was arbitrary and capricious, lacked arational basis or was affected by an error of law" (Matter of Abramoski v New York State Educ. Dept., 134 AD3d1183, 1185 [2015] [citation omitted], lv dismissed and denied 27 NY3d1044 [2016]; see CPLR 7803 [3]; Matter of Murphy v New York State Div. of Hous. &Community Renewal, 21 NY3d 649, 652 [2013]). " 'An action isarbitrary and capricious when it is taken without sound basis in reason or regard to thefacts' " (Matter of Abramoski v New York State Educ. Dept., 134 AD3dat 1185, quoting Matter ofPeckham v Calogero, 12 NY3d 424, 431 [2009]; see Matter of Beck-Nichols vBianco, 20 NY3d 540, 559 [2013]). Furthermore, "[t]his Court 'will notsubstitute its judgment for that of [respondent] if his conclusion is reasonably supportedby the record' " (Matterof Salatel v New York State Police, 98 AD3d 1214, 1215 [2012], quotingMatter of Novotny v Constantine, 150 AD2d 852, 853 [1989]; see Matter ofWilburn v McMahon, 296 AD2d 805, 806 [2002]).
In denying petitioner's request for the identification card, respondent considered theIAB report issued on March 14, 2012. According to that report, petitioner encounteredwhat he deemed to be a "fatigued driver" but, when interviewed, petitioner "was unableto clearly articulate the actions he took when dealing with [the driver]," "took little to noinvestigative action to properly determine whether or not [the driver] was impaired orintoxicated"—despite observing containers of alcohol in the vehicle—andfailed to properly document the encounter. The report determined that petitioner hadcommitted two violations, including "[r]eluctance to perform official duties" and "neglectof duty," as well as failing to prepare an incident report to document the relevant call.The IAB investigation also revealed that petitioner had been "the subject of recentcounseling and below standard performance ratings related to a lack of Vehicle [and]Traffic [L]aw enforcement" and, as a result, it was "difficult to determine whether[petitioner was] either incompetent . . . or unwilling to take appropriateenforcement action." [*3]The investigator recommendedthat the complaint be classified as "founded" and forwarded for appropriateadministrative action.
In addition, respondent considered a memorandum from Anthony Ellis, DeputySuperintendent of IAB, in which Ellis explained that petitioner had been the subject ofsix founded personnel complaints during his tenure as a trooper and, moreover, petitionerwas "the subject of a pending personnel complaint at the time of his retirement," theinvestigation of which had recently yielded a finding of misconduct. Ellis then describedthe nature of petitioner's founded personnel complaints, concluding that "[petitioner]retired as a result of the pending personnel complaint" and "[petitioner] ha[d] shown apattern of neglect of duty and disobeying directives over his career" and "did not retire ingood standing." Ellis "recommend[ed] against [the] issuance of a New York State PolicePermit." Furthermore, the record establishes that, although no charges were preferredagainst petitioner, his formal notice of his intention to retire effectively suspended anyinternal disciplinary proceedings against him.
Although petitioner denied that he engaged in misconduct or retired to avoiddisciplinary action, we find that the record supports respondent's determination thatpetitioner was not eligible for the requested identification card because he engaged inserious misconduct shortly before his retirement and did not retire in good standing. Asthe determination is not arbitrary and capricious or lacking in a rational basis, it will notbe disturbed. We have reviewed petitioner's remaining contentions and find them to bewithout merit.
Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1:One of the benefits ofobtaining such a card is that, pursuant to 18 USC § 926C, "an individualwho is a qualified retired law enforcement officer and who is carrying the identificationrequired . . . may carry a concealed firearm" (18 USCA § 926C[a]).
Footnote 2:Since thecommencement of this proceeding, Executive Law § 231, effective January20, 2015, was enacted and provides that respondent "shall develop and distribute uniformidentification cards to all sworn members of New York [S]tate [P]olice, upon suchmembers' retirement in good standing" and, " 'retirement in goodstanding' " means that the State Police member "retired from his or heremployment for reasons other than the avoidance of disciplinary charges" (ExecutiveLaw § 231 [1], [2]).