Turzyn v. Rozzi

134 A.D.2d 268, 520 N.Y.S.2d 601, 1987 N.Y. App. Div. LEXIS 50451

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1987
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Samuel Rozzi, Commissioner of Police of the Nassau County Police Department, dated January 7, 1986, which, after a hearing, found the petitioner guilty of violating the Rules and Regulations of the Nassau County Police Department and fined him five days’ pay.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.

The petitioner’s claim that the determination was made in violation of his right to due process because the rule he was charged with violating was allegedly overbroad and vague was not raised before the administrative tribunal, and therefore, the issue is not properly before this court (see, Matter of Gonzalez v State Liq. Auth., 30 NY2d 108; Matter of J & B Auto Salvage v Melton, 81 AD2d 615, lv denied 53 NY2d 609).

We find substantial evidence in the record to support the determination that the petitioner violated article 8, rule 15, subdivision 2 of the Nassau County Police Department Rules and Regulations by failing to immediately report damage to his patrol vehicle sustained during his tour of duty on February 7, 1983.

We further find that the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness (see, e.g., 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Pell v Board of Educ., 34 NY2d 222, 231). Thompson, J. P., Brown, Rubin and Harwood, JJ., concur.