Olsen v. Suffolk County Police Department

277 A.D.2d 385, 716 N.Y.S.2d 592, 2000 N.Y. App. Div. LEXIS 12072

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 2000
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Suffolk County Police Department, dated June 8, 1999, which adopted the findings of a Hearing Officer, made after a hearing, finding that the petitioner was guilty of misconduct and imposed a penalty of a five-day suspension from his position.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The determination of the respondent Suffolk County Police Department is supported by substantial evidence (see, Matter of Lahey v Kelly, 71 NY2d 135; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). It is the function of the Hearing Officer, not the reviewing court, to weigh the evidence and assess the credibility of the witnesses (see, Matter of Silberfarb v Board of Coop Educ. Servs., 60 NY2d 979, 981). There is no basis to disturb the Hearing Officer’s findings.

The penalty of a five-day suspension was not so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222). O’Brien, J. P., Thompson, S. Miller and Feuerstein, JJ., concur.