Doolittle v. McMahonDoolittle v. McMahon
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which terminated petitioner’s employment as a State Police officer.
On June 27, 1994, petitioner and Warren Meizner, a fellow
Thereafter, Meizner sold the gun to petitioner for $50 but the acquisition of the weapon was not listed on the activity log by either petitioner or Meizner. Petitioner then prepared a State Police Acquisition or Disposition of Firearm Report (hereinafter D Form) so that the gun could be placed on his badge. Meizner, who called Snyder for certain information, assisted рetitioner in completing the D Form. Although petitioner contends that Meizner submitted the form and Meizner testified that he gave the сompleted form to petitioner for filing, it is undisputed that the D Form was submitted to the pistol permit section and stated that petitiоner obtained the firearm from Snyder. However, this form was rejected as it was outdated and records showed that the gun had never been registered to Snyder.
At this point the station commander commenced an investigation to determine how petitioner obtained the weapon and whether proper internal procedures had been followed. In the meantime pеtitioner filled out a new D Form, including the same information that was on the original and submitted it to the station commander along with a memorandum explaining how the weapon had been acquired. As a result of the subsequent investigation, petitioner was charged with violating State Police regulations by knowingly violating Penal Law § 155.30 (7) (larceny), § 175.30 (offering a false instrument for filing) and § 195.00 (official misconduct). A hearing was held before a Hearing Board, petitioner was found guilty of all charges and dismissal was recommended. Respondеnt adopted the Hearing Board’s findings of fact and recommendations and petitioner was dismissed. Petitioner commencеd this CPLR article 78 proceeding to annul the determination and the matter has been transferred to this Court.
In a proceeding such as this our function is to review the administrative determination made after a hearing, and our consideration is limited to finding whether upon the record as
As to the larceny charge, it is undisputed that the pistol in question was not registered to anyone in the Snyder household and was a nuisance weapon which was required to be surrеndered to respondent (see, Penal Law § 400.05 [1]). Rather than surrendering the pistol as required, Meizner sold the pistol to petitioner who was then under an obligation to surrender it to respondent. Petitioner, rather than surrendering the firearm, attempted to convert it as his own property by filling out a D Form which was false. Thus, petitioner was guilty of a larceny by intending to appropriate the pistоl to himself and wrongfully withholding said property from its legitimate owner, respondent, whose right to possession was superior to that оf petitioner.
There was also substantial evidence in the record to find that petitioner offered a false instrument for filing. After helping to prepare and submit an outdated D Form which was returned, petitioner submitted a proper D Form which again falsely stated that he acquired the weapon from Snyder. Although petitioner contends that Meizner filled out a portion of the form and that he was unaware of the misinformation regarding the prior owner of the gun, this testimony conflicts with that of other witnesses. The Hеaring Board viewed petitioner’s testimony as not credible and it is well settled that issues of credibility are for the fact finder (see, Matter of Perez v Wilmot,
Finally, there was substantial evidеnce to support the Hearing Board’s conclusion that petitioner, a public servant, knowingly engaged in official misconduct by purchasing the pistol from Meizner knowing that it was not lawfully possessed by him. Petitioner acquired the weapon in an unauthorized manner for his own benefit while acting in his official capacity as a State Trooper and was under a duty to surrender the gun аs a nuisance weapon to respondent. Not having done so, petitioner was guilty of official misconduct.
Petitioner аlso contends that his dismissal from the State Police was not warranted; however, given the circumstances of this case the рenalty of dismissal was not so disproportionate as to be shocking to one’s sense of fairness (see, Matter of Pell v Bоard of Educ., supra; Matter of Lago v County of Ulster,
For these reasons we confirm respondent’s determination and acсordingly, dismiss the petition.
Cardona, P. J., Mercure, Peters and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.