| Matter of Mercado v Kelly |
| 2008 NY Slip Op 07175 [54 AD3d 654] |
| September 30, 2008 |
| Appellate Division, First Department |
| In the Matter of Benigno Mercado, Petitioner, v RaymondW. Kelly, as Police Commissioner of the City of New York, et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation, Counsel, New York (Ronald E. Sternberg of counsel), forrespondents.
Determination of respondent Police Commissioner, dated March 21, 2007, insofar as itterminated petitioner's employment as a police officer, unanimously confirmed, the petitiondenied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court byorder of Supreme Court, New York County [Eileen A. Rakower, J.], entered October 16, 2007),dismissed, without costs.
Substantial evidence supports the findings, including that petitioner possessed a stolenlicense plate and made false and misleading statements about whether he knew the plate wasstolen. There is no basis for disturbing the hearing officer's assessment of petitioner's credibilityregarding the inconsistencies between his plea allocution in the criminal case against him and hisstatements to the Internal Affairs Bureau investigators (see Matter of Berenhaus v Ward,70 NY2d 436 [1987]; Matter of D'Augusta v Bratton, 259 AD2d 287 [1999]).
The penalty of dismissal does not shock our sense of fairness, particularly where theevidence gives rise to the inference that petitioner obtained the stolen license plate by virtue of[*2]his official position and intended to use the plate forfraudulent purposes (see e.g. Matter of Kelly v Safir, 96 NY2d 32 [2001]).Concur—Saxe, J.P., Sweeny, McGuire, Renwick and Freedman, JJ.