Opinion
March 28, 1994
Appeal from the Supreme Court, Suffolk County (Colby, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The petitioner was removed as a member of the Suffolk County Police Department after he was found guilty, after an arbitration hearing, of departmental charges. The charges involved, inter alia, allegations that the petitioner and a friend had raped two minor females. The petitioner was acquitted of criminal charges arising from the same events.
We find that the petition is without merit. The petitioner argues that the arbitrator's refusal to allow him to recall the complaining witness and her corroborating witness or to enter a transcript of the testimony they gave at a related criminal trial into evidence constituted misconduct under CPLR 7511. However, because the petitioner failed to raise the arguments concerning the corroborating witness at the arbitration hearing, they are not properly before this Court (see, Matter of Mercy Hosp. v Board of Zoning Appeals, 127 A.D.2d 659). In addition, although the arguments concerning the victim were raised at the arbitration hearing, the arbitrator did not commit misconduct.
Although the petitioner's subsequent counsel was apparently displeased with the quality of the questioning, the victim was thoroughly cross-examined by the petitioner's initial counsel at the hearing. Further, although the petitioner argues that the victim's testimony at the criminal trial substantially contradicted her testimony at the arbitration hearing, and that he should have been allowed to re-cross-examine her concerning these contradictions, he fails to support this conclusory assertion with any relevant citation to the record. Indeed, as found by the Supreme Court, our independent review of the hearing record reveals no such substantial contradictions. Thus, the arbitrator was not guilty of misconduct when he refused either to allow the petitioner to recall the victim or to admit some or all of a transcript of the testimony she gave at the criminal trial into evidence. Finally, even assuming, arguendo, that such contradictions did exist, they went only to the credibility of the witness. And, as evidence going solely to the credibility of a witness was collateral to the material issues to be decided, the refusal to admit such evidence was not "misconduct" (see, Feisthamel v. State of New York [Dept. of Envtl. Conservation], 84 A.D.2d 960, affd 57 N.Y.2d 696).
We have examined the petitioner's remaining contentions and found them to be either unpreserved for appellate review or without merit. Bracken, J.P., Balletta, Miller and Pizzuto, JJ., concur.