Botte v. Safir

Appellate Division of the Supreme Court of New York

Botte v. Safir

261 A.D.2d 315, 691 N.Y.S.2d 415, 1999 N.Y. App. Div. LEXIS 5824

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 25, 1999

StatusPublished

This text of 261 A.D.2d 315 (Botte v. Safir) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Botte v. Safir, 261 A.D.2d 315, 691 N.Y.S.2d 415, 1999 N.Y. App. Div. LEXIS 5824 (N.Y. Ct. App. 1999).

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Opinion

—Determination of respondent Police Commissioner dated October 15, 1997, dismissing petitioner from his position as a police officer, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Louise Gruner Gans, JJ, entered May 6, 1998) dismissed, without costs.

Respondent’s findings that petitioner removed a vest from a suspect and failed to turn it over to the arresting officers, and that he gave false and misleading statements at official interviews concerning the incident, are supported by substantial evidence, including the testimony of other police officers who were at the scene establishing that petitioner was the last person seen with the vest. Petitioner’s testimony purporting to explain his almost complete lack of recall about the incident at his departmental interviews held some 16 and 19 months after the incident was properly rejected by the Hearing Officer as a matter of credibility. The penalty of dismissal does not shock our sense of fairness (see, Matter of Berenhaus v Ward, 70 [316]*316NY2d 436, 445). Concur — Nardelli, J. P., Wallach, Lerner, Andrias and Buckley, JJ.

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—Determination of respondent Police Commissioner dated October 15, 1997, dismissing petitioner from his position as a police officer, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Louise Gruner Gans, JJ, entered May 6, 1998) dismissed, without costs.

Respondent’s findings that petitioner removed a vest from a suspect and failed to turn it over to the arresting officers, and that he gave false and misleading statements at official interviews concerning the incident, are supported by substantial evidence, including the testimony of other police officers who were at the scene establishing that petitioner was the last person seen with the vest. Petitioner’s testimony purporting to explain his almost complete lack of recall about the incident at his departmental interviews held some 16 and 19 months after the incident was properly rejected by the Hearing Officer as a matter of credibility. The penalty of dismissal does not shock our sense of fairness (see, Matter of Berenhaus v Ward, 70 [316]*316NY2d 436, 445). Concur — Nardelli, J. P., Wallach, Lerner, Andrias and Buckley, JJ.

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Bluebook (online)

261 A.D.2d 315, 691 N.Y.S.2d 415, 1999 N.Y. App. Div. LEXIS 5824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/botte-v-safir-nyappdiv-1999.

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