| Matter of Smeraldo v Rater |
| 2008 NY Slip Op 07336 [55 AD3d 1298] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Timothy J. Smeraldo, Petitioner, v Rexford H. Rater,Individually and as Chief of Police of Jamestown Police Department, et al.,Respondents. |
—[*1] Lundberg & Gustafson LLP, Jamestown (Kurt D. Gustafson of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the SupremeCourt in the Fourth Judicial Department by order of the Supreme Court, Chautauqua County [TimothyJ. Walker, A.J.], entered March 3, 2008) to review a determination of respondent Rexford H. Rater,Chief of Police of Jamestown Police Department. The determination terminated petitioner's employmentwith the Jamestown Police Department.
It is hereby ordered that the determination is unanimously confirmed without costs and the petitionis dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding challenging the penalty oftermination of his employment with the Jamestown Police Department (Department) for, inter alia,conduct that was disrespectful of a superior officer. According to petitioner, the penalty of terminationis so disproportionate to the offense as to be shocking to one's sense of fairness and the hearing officerimproperly relied upon facts that were not in evidence. We note at the outset that petitioner does notraise a substantial evidence issue, and Supreme Court therefore erred in transferring the proceeding tothis Court (see Matter of Panek v Bennett,38 AD3d 1251, 1252 [2007]). Nevertheless, in the interest of judicial economy, we addressthe merits of the issues raised by petitioner (see id.).
We reject petitioner's contention with respect to the penalty imposed. It is well established that anadministrative penalty must be upheld "unless it is 'so disproportionate to the offense as to be shockingto one's sense of fairness,' thus constituting an abuse of discretion as a matter of law" (Matter ofKelly v Safir, 96 NY2d 32, 38 [2001], rearg denied 96 NY2d 854 [2001]), and thatcannot be said here. " 'A police force is a quasi-military organization demanding strict discipline' "(Panek, 38 AD3d at 1252), and " 'great leeway' must be accorded to . . .determinations concerning the appropriate punishment, for it is the [Chief of Police] . . .who 'is accountable to the public for the integrity of the Department' " (Kelly, 96 NY2d at 38,quoting Matter of Berenhaus v Ward, 70 NY2d 436, 445 [1987]; see also Matter ofO'Connor v Frank, 38 NY2d 963, 964 [1976]). The hearing officer found, inter alia, thatpetitioner made [*2]a remark in front of several other officers that wasdisrespectful of a superior officer, and the record establishes that petitioner has a prior disciplinaryrecord, including a 30-day suspension and a demotion in rank that occurred less than one year prior tothe present offense. The record further establishes that, in his settlement agreement with the Departmentfor the charge resulting in that suspension and demotion, petitioner expressly stated that "he willendeavor not to violate any other Department policy in the future." The evidence at the hearing alsoestablished that petitioner had previously been counseled on the issue of making inappropriatecomments, including comments that demonstrated insubordination.
The record does not support petitioner's further contention that the hearing officer improperly reliedupon facts not in evidence. Contrary to petitioner's contention, the settlement agreement was receivedin evidence at the hearing, and the hearing officer also properly considered the failure of petitioner to beforthcoming in his testimony at the hearing. Present—Scudder, P.J., Centra, Fahey, Peradottoand Green, JJ.