May v. Shaw

79 A.D.2d 970, 434 N.Y.S.2d 284, 1981 N.Y. App. Div. LEXIS 9847

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 5, 1981
• Status: Published

Opinion

In a proceeding pursuant to CPLR artifcle 78 (1) petitioner appeals (by permission) from so much of an order of the Supreme Court, Orange County, dated May 4, 1978, as held that respondent Wohlrab had jurisdiction to discipline petitioner for acts committed between his initial dismissal and' his subsequent reinstatement pursuant to court order, and (2) petitioner seeks review of a determination of respondent Wohlrab which, after a hearing, found him guilty of certain misconduct and dismissed him from the Newburgh Police Department. Order affirmed insofar as appealed from, without costs or disbursements. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. Special Term correctly held that when petitioner engaged in police investigative activities while suspended, he was subject to the same standard of conduct generally required of nonsuspended police officers when they engage in police-related activities. We agree that both common sense and the dictates of public policy require that one who is seeking reinstatement to a position of public trust, with back pay and all related employment benefits, must be held accountable for any substantial breach of that trust which takes place between an earlier illegal dismissal and the date of judicial reinstatement. There was substantial evidence to support the conclusion that petitioner committed the acts charged. It was also proper to consider, and admit into evidence, the results of a polygraph test. There was substantial evidence of the reliability of the machine used, its proper functioning on the day in question, and the qualifications of the test administrator. Mollen P. J., Hopkins, Titone and Weinstein, JJ., concur. [92 Misc 2d 140.]