SANDERS & SANDERS, CHEEKTOWAGA (HARVEY P. SANDERS OF
COUNSEL), FOR PETITIONER.
T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D.
HITSOUS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND
pursuant to CPLR article 78 (transferred to the Appellate
Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [John
A. Michalek, J.], entered March 3, 2016) to review a
determination of respondent. The determination terminated the
employment of petitioner.
hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.
Petitioner, a former New York State Trooper, commenced this
CPLR article 78 proceeding seeking to annul respondent's
determination finding her guilty of disciplinary charges or,
in the alternative, to vacate the penalty of dismissal. She
contends, inter alia, that the determination is not supported
by substantial evidence and that the penalty of dismissal is
shocking to one's sense of fairness.
a Trooper for over 17 years, was previously assigned to work
as an investigator with the Community Narcotics Enforcement
Team (CNET). In 2014, after she had filed discrimination
claims against various coworkers, she was transferred to the
Counter-Terrorism Investigation Unit (CTIU). Following that
transfer, she met with two of her CTIU supervisors. According
to the supervisors, petitioner was given an order that she
was "not to work on any CNET matters or cases" and
"[was] to work only on Troop A CTIU cases." It is
undisputed that, approximately two weeks after that meeting,
petitioner transported a person who had been a CNET
confidential informant to and from an interview with federal
authorities who were investigating a person petitioner had
investigated while working with CNET. Shortly thereafter,
when petitioner's CTIU supervisors learned of her
involvement with that investigation, petitioner was
interviewed by the Internal Affairs Bureau (IAB), and she
denied ever receiving an order to refrain from any
involvement in her prior CNET cases.
the IAB investigation, which focused on whether petitioner
had violated a direct order from a supervisor, it was
discovered that petitioner had telephone contact with the
same confidential informant. In memorializing that
conversation, petitioner listed a CNET supervisor as a
"backup" contact on a confidential informant
contact sheet. That supervisor, however, was not aware of
petitioner's telephone contact with the confidential
informant and did not participate in the conversation.
Petitioner admitted that she listed the supervisor as a
backup merely because "he was in the office with
[petitioner] when she was on the telephone" with the
confidential informant. Several other discrepancies in
petitioner's paperwork were also discovered during the
five separate charges were filed against petitioner,
alleging, inter alia, that she violated a direct order to
refrain from "work[ing] on cases she was assigned while
at CNET"; violated a direct order to be truthful in her
IAB interview; caused a false entry to be made in official
records when she made untrue statements during her IAB
interview; failed to assume responsibility or exercise
diligence in the performance of her duties; and knowingly
made or caused to be made a false entry in official records
when she listed her supervisor as a backup on a contact
a hearing on those charges, the Hearing Board found
petitioner guilty of every allegation against her and
recommended that she be dismissed. Respondent accepted the
findings and recommendations of the Hearing Board and
dismissed petitioner from the Division of State Police.
well established that, "[i]n CPLR article 78 proceedings
to review determinations of administrative tribunals, the
standard of review for the Appellate Divisions... is whether
there was substantial evidence to support the Hearing
Officer's decision" (Matter of Wilson v City of
White Plains, 95 N.Y.2d 783, 784-785; see CPLR
7803 ; Matter of Kelly v Safir, 96 N.Y.2d 32, 38,
rearg denied 96 N.Y.2d 854). Contrary to
petitioner's contention, we conclude that
respondent's determination is supported by substantial
evidence (see generally Matter of Berenhaus v Ward,
70 N.Y.2d 436, 443; 300 Gramatan Ave. Assoc. v State Div.
of Human Rights, 45 N.Y.2d 176, 179-180).
contends that the Hearing Board improperly expanded the
charge in charge number one by expanding the scope of the
alleged order from an order to refrain from working on
cases she had been assigned while at CNET to an
order to refrain from working on any "CNET
related cases" or being involved in "any
matters related to her previous work in CNET"
(emphasis added). We reject petitioner's contention.
Charge number one was "reasonably specific, in light of
all the relevant circumstances, to apprise [petitioner]... of
the charges against [her]... and to allow for the preparation
of an adequate defense" (Matter of Block v
Ambach, 73 N.Y.2d 323, 333; see Matter of Murray v
Murphy, 24 N.Y.2d 150, 157). In any event, the evidence
at the hearing established that "[p]etitioner's
guilt was based only on violations that were charged"
(Matter of Faure v Chesworth, 111 A.D.2d 578, 579).
further contends that the Hearing Board failed to consider
the retaliatory motive of the disciplinary charges in
violation of Civil Service Law § 75-b. Inasmuch as
petitioner failed to raise that contention in her petition,
that contention "is not properly before us"
(Matter of Dougherty v Degenhart, 154 A.D.2d 898,
899; see Matter of Zigarelli v New York State
Police, 126 A.D.2d 822, 824, lv denied 69
N.Y.2d 611), and we therefore do not consider the merits of
we conclude that the penalty of termination is not shocking
to one's sense of fairness. "Judicial review of an
administrative penalty is limited to whether the measure or
mode of penalty or discipline imposed constitutes an abuse of
discretion as a matter of law... [T]he Appellate Division is
subject to the same constraints as th[e] Court [of Appeals]-a
penalty must be upheld unless it is so disproportionate to
the offense as to be shocking to one's sense of fairness,
' thus constituting an abuse of discretion as a matter of
law" (Kelly, 96 N.Y.2d at 38, quoting
Matter of Pell v Board of Educ. of Union Free Sch. Dist.
No. 1 of Towns of Scarsdale & Mamaroneck, Westchester
County, 34 N.Y.2d 222, 237). We are mindful that,
"[i]n matters concerning police discipline, great
leeway' must be accorded to the [Superintendent]'s
determinations concerning 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 N.Y.2d at 38, quoting
Berenhaus, 70 N.Y.2d at 445; see Matter of Panek
v Bennett, 38 A.D.3d 1251, 1252). Of critical
importance, "a State Trooper holds a position of great
sensitivity and trust... and [a] higher standard of fitness
and character pertains to police officers than to ordinary
civil servants" (Matter of Bassett v Fenton, 68
A.D.3d 1385, 1387-1388 [internal quotation marks omitted]).
Given the conduct underlying the offenses, i.e., directly
disobeying an order and making false statements in an IAB
interview and on ...