Groff v. Kelly

Appellate Division of the Supreme Court of New York

Groff v. Kelly

309 A.D.2d 539, 765 N.Y.S.2d 31, 2003 N.Y. App. Div. LEXIS 10337

Appellate Division of the Supreme Court of the State of New York·Decided October 7, 2003·Published·Cited by 5 cases

Opinion

Determination of respondent, dated April 8, 2002, dismissing petitioner from his position as [540] a New York City 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 [Herman Cahn, JJ, entered November 12, 2002), dismissed, without costs.

Substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]), including the testimony of petitioner himself and that of the fellow officer duped by him, established petitioner’s guilt of larceny by false pretenses. Petitioner’s claim that he was denied due process since the specifications against him were amended after the close of testimony is unavailing since, under the circumstances, petitioner had fair notice of the charges and was, in any event, afforded, but declined, an opportunity to respond further to the charges at a reopened hearing.

The penalty imposed is not, in light of the seriousness of the proven misconduct, shocking to our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]). Concur — Saxe, J.P., Sullivan, Williams, Lerner and Friedman, JJ.

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Determination of respondent, dated April 8, 2002, dismissing petitioner from his position as [540] a New York City 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 [Herman Cahn, JJ, entered November 12, 2002), dismissed, without costs.

Substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]), including the testimony of petitioner himself and that of the fellow officer duped by him, established petitioner’s guilt of larceny by false pretenses. Petitioner’s claim that he was denied due process since the specifications against him were amended after the close of testimony is unavailing since, under the circumstances, petitioner had fair notice of the charges and was, in any event, afforded, but declined, an opportunity to respond further to the charges at a reopened hearing.

The penalty imposed is not, in light of the seriousness of the proven misconduct, shocking to our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]). Concur — Saxe, J.P., Sullivan, Williams, Lerner and Friedman, JJ.

Groff v. Kelly, 309 A.D.2d 539, 765 N.Y.S.2d 31, 2003 N.Y. App. Div. LEXIS 10337 (N.Y. Ct. App. 2003).

Pincite

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Opinion

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