| Matter of Franklin v D'Amico |
| 2014 NY Slip Op 03064 [117 AD3d 1432] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Frederick Franklin, Jr., Petitioner, vJoseph A. D'Amico, Superintendent, New York State Division of State Police,Respondent. |
Harris Beach PLLC, Buffalo (Richard T. Sullivan of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of theSupreme Court in the Fourth Judicial Department by order of the Supreme Court, ErieCounty [Joseph R. Glownia, J.], entered March 26, 2013) to annul a determination ofrespondent. The determination dismissed petitioner from the Division of StatePolice.
It is hereby ordered that the determination is unanimously confirmed without costsand the petition is dismissed.
Memorandum: Petitioner, a former New York State Trooper, commenced this CPLRarticle 78 proceeding seeking to annul respondent's determination finding him guilty ofmisconduct or, in the alternative, to vacate the penalty of dismissal. He contends that thedetermination is not supported by substantial evidence and that the penalty is shocking toone's sense of fairness.
Petitioner, a Trooper for over 18 years, was a member of a social club that rented itsclubhouse to another Trooper, who used the premises to host parties where strippersperformed. Several witnesses, including two other Troopers who attended one party,testified that the strippers performing at the parties also engaged in prostitution, i.e.,exchanging sexual favors for money, and that they used the second floor of theclubhouse to do so. It is undisputed that alcohol was sold to patrons attending the parties,despite the fact that the club did not have a license to sell alcohol. Petitioner admittedthat he was present for three such parties. In the charges against petitioner, it was allegedthat he knew of the illegal activities and did not take proper police action to stop them;that he knowingly frequented an establishment where violations of the law existed; thathe provided false information during the internal investigation; and that, by his conduct,he brought discredit to the Division of State Police. Following a hearing conducted by aHearing Board (see 9 NYCRR 479.7), all but one of the charges against him weresustained. Respondent accepted the findings and recommendations of theHearing Board and dismissed petitioner from the Division of State Police.
[*2] It is well established that, "[i]n CPLR article 78proceedings to review determinations of administrative tribunals, the standard of reviewfor the Appellate Divisions and th[e] Court [of Appeals] is whether there was substantialevidence to support the Hearing Officer's decision" (Matter of Wilson v City of WhitePlains, 95 NY2d 783, 784-785 [2000]; see CPLR 7803 [4]; Matter ofKelly v Safir, 96 NY2d 32, 38 [2001], rearg denied 96 NY2d 854 [2001];Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns ofScarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231[1974]). Contrary to petitioner's contention, we conclude that respondent's determinationis supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. ofHuman Rights, 45 NY2d 176, 179-180 [1978]).
Although petitioner denied having any knowledge of the illegal activities takingplace at the parties, there was substantial evidence establishing the contrary, i.e., that hewas aware of those activities. He gave numerous inconsistent statements regardingwhether he knew the club lacked a liquor license. He evaded answering basic questions,and the Hearing Board found incredible his testimony that he had no idea what the term"extras" meant in relationship to strippers. When asked by one patron at a party what wasoccurring on the second floor, petitioner told the patron, "you don't want to know,"thereby implying that petitioner knew what was occurring. Inasmuch as others whoattended the parties assumed that prostitution was occurring on the second floor, theHearing Board concluded that it was reasonable to assume that a Trooper with over 18years of experience "would surmise that the area was being used for sexual favors."Moreover, after petitioner learned that the Trooper hosting the parties had beenquestioned by authorities, petitioner immediately recommended to his club president andto other Troopers that they disassociate themselves from that Trooper. We conclude thatthe Hearing Board properly determined that such evidence is indicative of aconsciousness of guilt.
Although a different finding would not have been unreasonable,
" 'where[, as here,] substantial evidence exists' to support a decision beingreviewed by the courts, 'that determination must be sustained, irrespective of whether asimilar quantum of evidence is available to support other varying conclusions' "(Matter of Ridge Rd. Fire Dist.v Schiano, 16 NY3d 494, 503 [2011], quoting Matter of Collins v Codd,38 NY2d 269, 270 [1976]; see Matter of Park Outdoor Adv. of N.Y. v City ofSyracuse, 210 AD2d 907, 908 [1994]).
We reject petitioner's further contention that the penalty of dismissal is shocking toone's sense of fairness. "Judicial review of an administrative penalty is limited to whetherthe measure or mode of penalty or discipline imposed constitutes an abuse of discretionas a matter of law . . . [T]he Appellate Division is subject to the sameconstraints as th[e] Court [of Appeals]—a penalty must be upheld unless it is 'sodisproportionate to the offense as to be shocking to one's sense of fairness,' thusconstituting an abuse of discretion as a matter of law" (Kelly, 96 NY2d at 38,quoting Pell, 34 NY2d at 237). Moreover, "[i]n matters concerning policediscipline, 'great leeway' must be accorded to the [Superintendent's] determinationsconcerning the appropriate punishment, for it is the [Superintendent], not the courts, who'is accountable to the public for the integrity of the [Division of State Police]' "(Kelly, 96 NY2d at 38, quoting Matter of Berenhaus v Ward, 70 NY2d436, 445 [1987]; see Pell, 34 NY2d at 237; Matter of Panek v Bennett, 38 AD3d 1251, 1252 [2007];Matter of Santos v Chesworth, 133 AD2d 1001, 1003 [1987]). Given the natureof the offenses, the " 'higher standard of fitness and character [that] pertains topolice officers,' " petitioner's evasive conduct and his refusal to accept anyresponsibility for his conduct, we conclude that the penalty of dismissal does not shockone's sense of fairness (Matterof Bassett v Fenton, 68 AD3d 1385, 1387-1388 [2009]; see e.g. Matter ofBoyd v Constantine, 81 NY2d 189, 196 [1993]; Matter of Tessiero v Bennett, 50 AD3d 1368, 1370 [2008];Matter of Hricik v McMahon, 247 AD2d 935, 936 [1998]; Matter of Costa vMcMahon, 225 AD2d 694, 695 [1996]; Matter of Elwood v Constantine, 213AD2d 870, 872 [1995]). Present—Scudder, P.J., Centra, Fahey, Peradotto andWhalen, JJ.