Panek v. Bennett

38 A.D.3d 1251, 834 N.Y.S.2d 894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 2007
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Cayuga County [Mark H. Fandrich, A.J.], entered October 24, 2006) to review a determination of respondent. The determination terminated petitioner’s employment with the New York State Division of State Police.

It is hereby ordered that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

Memorandum:

The sole issue raised by petitioner in this CPLR article 78 proceeding is whether the penalty of termination of his employment with the New York State Division of State Police (State Police) imposed upon the finding that he was guilty of six of the eight charges filed against him is shocking to one’s sense of fairness. We note at the outset that, although Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804 (g) because petitioner does not raise a substantial evidence issue, we address the merits of the issue raised by petitioner in the interest of judicial economy (see Matter of Moulden v Coughlin, 210 AD2d 997 [1994]).

“A police force is a quasi-military organization demanding strict discipline . . . and much deference is to be accorded the internal discipline of, and the penalties imposed upon, its members” (Richichi v Galligan, 136 AD2d 616, 616 [1988]). The determination that any penalty short of termination would discredit the integrity of the State Police and damage the trust and confidence of the public in the State Police is entitled to great deference. We thus conclude that the penalty of termination is not so disproportionate to the misconduct as to be shocking to one’s sense of fairness (see generally Matter of Kelly v Safir, 96 NY2d 32, 38 [2001], rearg denied 96 NY2d 854 [2001]). Present—Hurlbutt, J.E, Martoche, Smith, Fahey and Green, JJ.