Luciano v. Brattan

192 A.D.2d 658, 597 N.Y.S.2d 104, 1993 N.Y. App. Div. LEXIS 3873

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 1993
• Status: Published

Opinion

Consolidated proceedings pursuant to CPLR article 78 to review two determinations of the New York City Transit Police Department, both dated February 9, 1990, which, after a hearing, found, inter alia, that the petitioners were guilty of various acts of misconduct and incompetence, and imposed a penalty of a 44-day suspension without pay.

Adjudged that the determinations are confirmed and the proceeding is dismissed on the merits, without costs or disbursements.

The determinations were supported by substantial evidence (see, Matter of Sowa v Looney, 23 NY2d 329; see also, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). The petitioners’ contention that they were prejudiced by the improper admission of photographs showing the complainant’s injuries and the layout of the transit facility bathroom in which the assault occurred is without merit (see, People v Tejeda, 78 NY2d 936; People v Cesare, 68 AD2d 938). Moreover, the hearsay testimony of the prisoner with whom the complainant shared a holding cell immediately after the assault was admissible in the context of this hearing (see, People ex rel. Vega v Smith, 66 NY2d 130).

According due deference to the determinations of the respondents, we find that the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Dean v Del Castillo, 174 AD2d 566; Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Pell v Board of Educ., 34 NY2d 222).

We have considered the petitioners’ remaining contentions and find them to be without merit. Mangano, P. J., Bracken, Sullivan and Lawrence, JJ., concur.