Opinion
12-14-2016
In the Matter of Richard SASSI II, petitioner, v. CITY OF BEACON, respondent.
Sussman and Watkins, Goshen, NY (Michael H. Sussman of counsel), for petitioner. Iseman, Cunningham, Riester & Hyde, LLP, Poughkeepsie, NY (David R. Wise of counsel), for respondent.
Sussman and Watkins, Goshen, NY (Michael H. Sussman of counsel), for petitioner.
Iseman, Cunningham, Riester & Hyde, LLP, Poughkeepsie, NY (David R. Wise of counsel), for respondent.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of the Mayor of the City of Beacon dated March 10, 2014, which adopted the findings and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law § 75, finding the petitioner guilty of certain charges of misconduct and incompetence, and terminated the petitioner's employment.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
Following a disciplinary hearing pursuant to Civil Service Law § 75, a hearing officer found the petitioner guilty of certain charges of misconduct and incompetence, and recommended termination of the petitioner's employment as a detective sergeant. The Mayor of the City of Beacon adopted the findings and recommendation of the hearing officer and terminated the petitioner's employment. Subsequently, the petitioner commenced this proceeding pursuant to CPLR article 78 to challenge his termination.
"[Judicial] review of an administrative determination in an employee disciplinary case made after a hearing pursuant to Civil Service Law § 75 is limited to considering whether the determination was supported by substantial evidence" (Matter of Argenti v. Town of Riverhead, 131 A.D.3d 1053, 1054, 16 N.Y.S.3d 470 ; see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 ). Here, contrary to the petitioner's contention, the determination of the Mayor of the City of Beacon that the petitioner was guilty of the misconduct alleged in specifications five, six, seven, and ten of charge one was supported by substantial evidence (see Matter of Bermel v. Walcott, 112 A.D.3d 619, 620, 975 N.Y.S.2d 905 ; Matter of Morris v. Calderone, 49 A.D.3d 741, 742, 854 N.Y.S.2d 189 ).
Contrary to the petitioner's further contention, the determination that he was guilty of misconduct and incompetence as a result of his statements, including a concededly false statement, made to the Chief of Police of the City of Beacon in response to a request for an account of the subject incident, as alleged in specifications thirteen, fourteen, and fifteen of charge one and specifications eight, nine, and ten of charge two, did not violate his constitutional privilege against self-incrimination. The privilege against self-incrimination was not a bar to the disciplinary charges because the petitioner was not required to waive his immunity with respect to the use of the statements in a criminal proceeding (see Gardner v. Broderick, 392 U.S. 273, 278, 88 S.Ct. 1913, 20 L.Ed.2d 1082 ; Matter of Matt v. Larocca, 71 N.Y.2d 154, 159–162, 524 N.Y.S.2d 180, 518 N.E.2d 1172 ; Matter of Eck v. County of Delaware, 36 A.D.3d 1180, 1182, 828 N.Y.S.2d 682 ; see also Matter of Cortes v. County of Nassau, 248 A.D.2d 616, 617–618, 670 N.Y.S.2d 509 ). Moreover, "neither the text nor the spirit of the Fifth Amendment confers the privilege to lie" (Brogan v. United States, 522 U.S. 398, 404, 118 S.Ct. 805, 139 L.Ed.2d 830 ; see Matter of Mathis v. Commissioner of Labor, 110 A.D.3d 1412, 973 N.Y.S.2d 889 ).
A court "may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" (Matter of Argenti v. Town of Riverhead, 131 A.D.3d at 1054, 16 N.Y.S.3d 470 [internal quotation marks omitted]; see Matter of Waldren v. Town of Islip, 6 N.Y.3d 735, 736, 810 N.Y.S.2d 408, 843 N.E.2d 1148 ; Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 ). Here, the penalty of dismissal is not so disproportionate to the offenses as to be shocking to one's sense of fairness (see Matter of Peterson v. City of Poughkeepsie, 131 A.D.3d 1250, 1251, 17 N.Y.S.3d 174 ; Matter of Ward v. Juettner, 63 A.D.3d 748, 748–749, 880 N.Y.S.2d 163 ).
The petitioner's remaining contentions are either without merit or not properly before this Court (see Matter of Bottom v. Annucci, 26 N.Y.3d 983, 985, 19 N.Y.S.3d 209, 41 N.E.3d 66 ; Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 ).