| Matter of Tessiero v Bennett |
| 2008 NY Slip Op 03372 [50 AD3d 1368] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jason A. Tessiero, Petitioner, v Wayne E. Bennett,as Superintendent of the New York State Police, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Carpinello, 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 respondentSuperintendent of the State Police which found petitioner guilty of misconduct and terminatedhis employment.
Following a disciplinary hearing, a Hearing Board recommended that petitioner, a StateTrooper, be found guilty of six charges of misconduct stemming from his interactions with twowomen between March 2006 and July 2006 and further recommended that he be terminated.Respondent Superintendent of the State Police accepted the Hearing Board's findings andterminated his employment. This CPLR article 78 proceeding, which has been transferred to thisCourt (see CPLR 7804 [g]), ensued.
Four of the six charges pertain to petitioner's late night arrest of a 23-year-old woman whoattempted to avoid a police road block and then failed field sobriety tests upon being pulled overby petitioner. Even though this woman was showing obvious signs of intoxication (she [*2]smelled of alcohol, slurred her speech and had bloodshot, wateryeyes) and even though her blood alcohol content (hereinafter BAC) measured three times thelegal limit on a breathalyzer machine (0.25%), petitioner released her from custody withoutcharges, claiming to have misread the machine as indicating a BAC of only .025%. This"mistake" was ultimately discovered prompting an internal affairs investigation. During thecourse of this investigation, petitioner engaged in a flirtatious exchange with another youngwoman while investigating a burglary. Two weeks later, petitioner went to this second woman'splace of employment for a social visit while on duty and in uniform. His conduct in this regardformed the basis of the remaining two charges.
In finding petitioner guilty of misconduct stemming from his handling of the subjectintoxicated female driver, the Hearing Board found that he intentionally misread the breathalyzerto pursue a social relationship with her. Petitioner claims that the record lacks substantialevidence to support this finding. As petitioner's motivation in dealing with this woman was thecentral issue before the Hearing Board and this Court will not " 'second guess the credibilitydeterminations of the administrative factfinder' " (Matter of McKinney v Bennett, 31 AD3d 860, 861 [2006], quotingMatter of Stephen FF. v Johnson, 23AD3d 977, 978 [2005]; see Doolittle v McMahon, 245 AD2d 736, 738 [1997];Matter of Douglas v Constantine, 151 AD2d 811, 812 [1989]), we reject petitioner'sargument.
The testimony established that petitioner made an inappropriate social comment to thiswoman, who by all accounts was young, single and attractive, while she was still in custody.Moreover, even though petitioner purportedly believed that her BAC was well below thelegal limit based on his reading of the breathalyzer machine itself, other conduct on his part wasinconsistent with this claimed misreading. First, he signed a printed version of the test resultswhich clearly states, directly above his signature, that her BAC was "0.25%." Next, he manuallyentered the correct BAC into a report. Finally, he arranged for her to be driven home.
Additionally, within an hour of the woman's release, petitioner left a voice mail message forher using his personal cell phone expressing his hope that she made it home safely.[FN*]Later that same day, he placed three additional calls to her, which he himself admitted weresocial in nature. During the course of these calls, according to the woman, he joked about herintoxicated behavior early that morning and informed her that they were free to date since he didnot arrest her. He then met up with her at a local bar that evening where joking again took placeabout the morning's events.
Notably, the woman testified that she was uncomfortable with the whole situation because itwas clear to even her that petitioner knew she was drunk but did not arrest her. Indeed, shedescribed petitioner's contact with her as "very inappropriate" and "really weird." Althoughpetitioner testified that he made an honest series of mistakes after a long tour of duty, histestimony was simply not credited by the Hearing Board, which was its province (see Matter [*3]of Mokszycki v McMahon, 6 AD3d 952, 953 [2004];Matter of Jackson v McMahon, 275 AD2d 546, 548 [2000]). Thus, the evidence amplysupports the Hearing Board's factual determination that petitioner intentionally failed to chargethis woman with driving while intoxicated with the hope of establishing a social relationshipwith her.
We are likewise unpersuaded that the determination finding him guilty of misconductstemming from his contact with the second woman is not supported by substantial evidence.Petitioner admitted during his testimony that, while he himself was being investigated inconnection with the first incident, he flirted with this woman while investigating a burglary andultimately placed a social visit to her at her place of employment while on duty and in uniform.This proof supports the Hearing Board's conclusion that petitioner engaged in misconduct byusing his position as a State Trooper to enhance a social relationship and that he acted in amanner tending to bring discredit upon the Division of State Police (see Matter of Wilburn vMcMahon, 296 AD2d 805, 806-807 [2002]).
Finally, under these circumstances, the penalty of dismissal does not shock our sense offairness (see Matter of Miller v McMahon, 240 AD2d 806, 808 [1997]; Matter ofCosta v McMahon, 225 AD2d 694, 695 [1996]).
Cardona, P.J., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: Petitioner testified that thewoman asked him to place this call and therefore he did so in his professional capacity, albeit itfrom his personal phone. It was clear from the woman's testimony, however, that she wassurprised by this message.