Hogan v. Kelly

4 A.D.3d 304, 771 N.Y.S.2d 665, 2004 N.Y. App. Div. LEXIS 1996

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2004
• Status: Published

Opinion

Determination of respondent Police Commissioner, dated August 9, 2002, dismissing petitioner from his position as 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 [Lewis Stone, J.], entered February 25, 2003) dismissed, without costs.

Inasmuch as substantial evidence, including, most notably, the testimony of an Internal Affairs sergeant, supports the Trial Commissioner’s findings that petitioner was guilty of specified misconduct, including frequenting a brothel to obtain an illegal benefit, threatening a brothel employee with physical harm with intent to harass, and falsely denying at an official interview that he had visited two brothels, respondents’ determination may not be disturbed (see Matter of Pell v Board of Educ., 34 NY2d 222, 231 [1974]). Petitioner’s challenges to the credibility of the witnesses against him at the departmental hearing are unavailing (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]), and in light of the proven misconduct, the penalty imposed is not shocking to our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]). Concur—Andrias, J.P, Ellerin, Williams and Gonzalez, JJ.