Malave v. Safir

Appellate Division of the Supreme Court of New York

Malave v. Safir

270 A.D.2d 72, 704 N.Y.S.2d 244, 2000 N.Y. App. Div. LEXIS 2585

Appellate Division of the Supreme Court of the State of New York·Decided March 9, 2000·Published·Cited by 3 cases

Opinion

—Determination of respondent Police Commissioner dated October 16, 1998, 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 [Harold Tompkins, J.], entered April 2, 1999), dismissed, without costs.

Respondent’s finding that petitioner pátronized a prostitute in violation of section 104-01 of the Police Department Patrol Guide is supported by substantial evidence, including the testimony of two undercover police officers posing as prostitutes (see, Matter of McDonald v Safir, 254 AD2d 234, lv denied 92 NY2d 819). In addition, petitioner’s own testimony provided substantial evidence in support of the charge that he was unfit for duty by reason of intoxication (see, Matter of Roberts v Bratton, 233 AD2d 102, lv denied 89 NY2d 815).

[73]*73We do not find the penalty of dismissal so disproportionate to petitioner’s offenses as to shock our sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233). Concur— Williams, J. P., Tom, Rubin and Andrias, JJ.

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—Determination of respondent Police Commissioner dated October 16, 1998, 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 [Harold Tompkins, J.], entered April 2, 1999), dismissed, without costs.

Respondent’s finding that petitioner pátronized a prostitute in violation of section 104-01 of the Police Department Patrol Guide is supported by substantial evidence, including the testimony of two undercover police officers posing as prostitutes (see, Matter of McDonald v Safir, 254 AD2d 234, lv denied 92 NY2d 819). In addition, petitioner’s own testimony provided substantial evidence in support of the charge that he was unfit for duty by reason of intoxication (see, Matter of Roberts v Bratton, 233 AD2d 102, lv denied 89 NY2d 815).

[73]*73We do not find the penalty of dismissal so disproportionate to petitioner’s offenses as to shock our sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233). Concur— Williams, J. P., Tom, Rubin and Andrias, JJ.

Malave v. Safir, 270 A.D.2d 72, 704 N.Y.S.2d 244, 2000 N.Y. App. Div. LEXIS 2585 (N.Y. Ct. App. 2000).

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Opinion

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