Matter of Ciollo v. Bratton

Appellate Division of the Supreme Court of New York

Matter of Ciollo v. Bratton

2017 NY Slip Op 1473, 147 A.D.3d 662, 46 N.Y.S.3d 886

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

DecidedFebruary 23, 2017

Docket3210 100228/15

StatusPublished

Cited by1 cases

This text of 2017 NY Slip Op 1473 (Matter of Ciollo v. Bratton) 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.

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Matter of Ciollo v. Bratton, 2017 NY Slip Op 1473, 147 A.D.3d 662, 46 N.Y.S.3d 886 (N.Y. Ct. App. 2017).

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Opinion

Determination of respondents, dated November 26, 2014, terminating petitioner’s position as a police officer with respondent New York City Police Department (NYPD), 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 [Margaret A. Chan, J.], entered October 5, 2015), dismissed, without costs.

The Deputy Commissioner’s findings of misconduct, sexual and otherwise, were supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). The Deputy Commissioner, while pointing out the victim’s credibility issues, found that a preponderance of the credible evidence — namely, the forensic computer records, text messages, controlled calls, and petitioner’s own statements upon his arrest — supported the minor victim’s version of the events. Further, the investigating officer’s testimony and the Deputy Commissioner’s finding that petitioner did not satisfy his duty to provide his commanding officer with his current address, are entitled to deference (see Matter of Tommy & Tina, Inc. v Department of Consumer Affairs of City of N.Y., 95 AD2d 724, 724 [1st Dept 1983], affd 62 NY2d 671 [1984]).

*663 Given the sensitive nature of the case and the victim’s desire not to testify in front of her mother, the Deputy Commissioner providently exercised her discretion in closing the hearing to the public only during the victim’s testimony (38 RCNY 15-04 [g]; see e.g. People v Vredenburg, 200 AD2d 797, 798 [3d Dept 1994], lv denied 83 NY2d 859 [1994]).

The penalty of termination does not shock the judicial conscience, given the findings of petitioner’s sexual misconduct with a minor (see Matter of Tighe v Kelly, 305 AD2d 274, 274 [1st Dept 2003], lv denied 100 NY2d 513 [2003]).

Concur— Sweeny, J.P., Andrias, Manzanet-Daniels, Gische and Webber, JJ.

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Determination of respondents, dated November 26, 2014, terminating petitioner’s position as a police officer with respondent New York City Police Department (NYPD), 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 [Margaret A. Chan, J.], entered October 5, 2015), dismissed, without costs.

The Deputy Commissioner’s findings of misconduct, sexual and otherwise, were supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). The Deputy Commissioner, while pointing out the victim’s credibility issues, found that a preponderance of the credible evidence — namely, the forensic computer records, text messages, controlled calls, and petitioner’s own statements upon his arrest — supported the minor victim’s version of the events. Further, the investigating officer’s testimony and the Deputy Commissioner’s finding that petitioner did not satisfy his duty to provide his commanding officer with his current address, are entitled to deference (see Matter of Tommy & Tina, Inc. v Department of Consumer Affairs of City of N.Y., 95 AD2d 724, 724 [1st Dept 1983], affd 62 NY2d 671 [1984]).

*663 Given the sensitive nature of the case and the victim’s desire not to testify in front of her mother, the Deputy Commissioner providently exercised her discretion in closing the hearing to the public only during the victim’s testimony (38 RCNY 15-04 [g]; see e.g. People v Vredenburg, 200 AD2d 797, 798 [3d Dept 1994], lv denied 83 NY2d 859 [1994]).

The penalty of termination does not shock the judicial conscience, given the findings of petitioner’s sexual misconduct with a minor (see Matter of Tighe v Kelly, 305 AD2d 274, 274 [1st Dept 2003], lv denied 100 NY2d 513 [2003]).

Concur— Sweeny, J.P., Andrias, Manzanet-Daniels, Gische and Webber, JJ.

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2017 NY Slip Op 1473, 147 A.D.3d 662, 46 N.Y.S.3d 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-ciollo-v-bratton-nyappdiv-2017.

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