Rodriguez v. Ward

169 A.D.2d 484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1991
• Status: Published

Opinion

Determination of the respondent Police Commissioner of the City of New York, dated March 25, 1989, which imposed a suspended penalty of termination, dismissing petitioner from his position as a police officer unless petitioner successfully completes a one-year probation period, is unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this court by order of Sup Ct, NY County [Burton Sherman, J.], entered on or about Nov. 20, 1989) is dismissed without costs or disbursements.

We find substantial evidence in the record to support the Commissioner’s determination that petitioner, while off duty on November 18, 1987, did wrongfully and without just cause point a revolver at the complainant and threaten the complainant during a traffic dispute. (See, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176.) The credited testimony of the complainant established that petitioner became angered while driving because he could not pass on the left of complainant’s stalled vehicle, which complainant was pushing off to the left hand side of the road. According to complainant, petitioner exited his car, placed a gun against complainant’s neck, threatening to "blow” complainant’s head off.

Notably, the Hearing Officer expressly found petitioner’s illogical and contradictory testimony to be incredible. As the duty of weighing the evidence and choosing between conflicting evidence rests solely with the administrative agency (see, Matter of Collins v Codd, 38 NY2d 269), we find no reason to disturb the Hearing Officer’s substantive findings or the penalty imposed. Concur—Carro, J. P., Ellerin, Ross, Asch and Kassal, JJ.