Felder v. Kelly

Appellate Division of the Supreme Court of New York

Felder v. Kelly

210 A.D.2d 78, 619 N.Y.S.2d 45

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

DecidedDecember 8, 1994

StatusPublished

Cited by1 cases

This text of 210 A.D.2d 78 (Felder v. Kelly) 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

Felder v. Kelly, 210 A.D.2d 78, 619 N.Y.S.2d 45 (N.Y. Ct. App. 1994).

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Opinion

—Determination of the respondent Police Commissioner dated March 2, 1993, which dismissed petitioner from her position as a police detective, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Leland DeGrasse, J.], entered October 28, 1993) unanimously dismissed, without costs.

Substantial evidence supports the determination that the directive that petitioner be tested was founded upon reasonable suspicion. Petitioner’s police identification card had once been found at a known drag location, and a controlled substance was discovered in her bedroom apartment. In addition, petitioner had a history of absence and lateness. Furthermore, the petitioner failed to submit sufficient evidence at the hearing to warrant disturbing the administrative conclusion that she acted volitionally in refusing to submit to testing. Finally, it cannot be said that the penalty of dismissal was so disproportionate to the offense as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222). Concur—Ellerin, J. P., Kupferman, Williams and Tom, JJ.

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—Determination of the respondent Police Commissioner dated March 2, 1993, which dismissed petitioner from her position as a police detective, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Leland DeGrasse, J.], entered October 28, 1993) unanimously dismissed, without costs.

Substantial evidence supports the determination that the directive that petitioner be tested was founded upon reasonable suspicion. Petitioner’s police identification card had once been found at a known drag location, and a controlled substance was discovered in her bedroom apartment. In addition, petitioner had a history of absence and lateness. Furthermore, the petitioner failed to submit sufficient evidence at the hearing to warrant disturbing the administrative conclusion that she acted volitionally in refusing to submit to testing. Finally, it cannot be said that the penalty of dismissal was so disproportionate to the offense as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222). Concur—Ellerin, J. P., Kupferman, Williams and Tom, JJ.

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Bluebook (online)

210 A.D.2d 78, 619 N.Y.S.2d 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felder-v-kelly-nyappdiv-1994.

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