                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 21, 2016                     522019
________________________________

In the Matter of TERRY E.
   KITTLE,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

JOSEPH A. D'AMICO, as
   Superintendent of the State
   Police,
                    Respondent.
________________________________


Calendar Date:   May 31, 2016

Before:   Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                             __________


      DeNigris Law Firm PLLC, Albany (Stephen G. DeNigris of
counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Julie M.
Sheridan of counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from a judgment of the Supreme Court (Melkonian,
J.), entered January 28, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent denying
petitioner's request for the issuance of a State Police Retired
Member identification card.

      Petitioner was employed as a state trooper from July 25,
1987 until his retirement on March 29, 2012. In late December
2011, petitioner was involved in an incident in which it was
alleged that he committed serious misconduct by failing to take
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appropriate police action when he neglected to conduct a field
sobriety test on a "fatigued" driver that he encountered on the
New York State Thruway. Instead, petitioner had the driver's
vehicle towed from the Thruway and, after the driver paid his tow
bill, he drove away. Approximately one hour later, the State
Police received a report that the same vehicle was stopped in the
center of the road on the Thruway. Another trooper responded,
observed that the driver appeared intoxicated, administered a
field sobriety test and a breath analysis test – which indicated
that the driver had a 0.39% blood alcohol content – and arrested
the driver. The Internal Affairs Bureau (hereinafter IAB)
investigated the incident and, in a report dated March 14, 2012,
designated the complaint against petitioner as founded and
recommended appropriate administrative action. Two days after
IAB issued its report, but before formal disciplinary charges
were filed against petitioner, he submitted notice of his intent
to retire.

      On March 20, 2012, petitioner requested that respondent
issue him, among other things, a State Police Retired Member
identification card.1 Respondent denied petitioner's
application, reasoning that petitioner did not retire in good
standing because he had engaged in serious misconduct and retired
in order to avoid disciplinary action. Petitioner then commenced
this CPLR article 78 proceeding,2 challenging respondent's


    1
        One of the benefits of obtaining such a card is that,
pursuant to 18 USC § 926C, "an individual who is a qualified
retired law enforcement officer and who is carrying the
identification required . . . may carry a concealed firearm" (18
USCA § 926C [a]).
    2
        Since the commencement of this proceeding, Executive Law
§ 231, effective January 20, 2015, was enacted and provides that
respondent "shall develop and distribute uniform identification
cards to all sworn members of New York [S]tate [P]olice, upon
such members' retirement in good standing" and, "'retirement in
good standing'" means that the State Police member "retired from
his or her employment for reasons other than the avoidance of
disciplinary charges" (Executive Law § 231 [1], [2]).
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determination   as arbitrary and capricious and without a rational
basis because   petitioner was not facing any charges of serious
misconduct at   the time that he retired. Supreme Court dismissed
the petition,   and petitioner now appeals.

      We affirm. "This Court's review of an administrative
determination such as the one at issue is limited to whether the
determination was arbitrary and capricious, lacked a rational
basis or was affected by an error of law" (Matter of Abramoski v
New York State Educ. Dept., 134 AD3d 1183, 1185 [2015] [citation
omitted], lv dismissed and denied 27 NY3d 1044 [2016]; see CPLR
7803 [3]; Matter of Murphy v New York State Div. of Hous. &
Community Renewal, 21 NY3d 649, 652 [2013]). "'An action is
arbitrary and capricious when it is taken without sound basis in
reason or regard to the facts'" (Matter of Abramoski v New York
State Educ. Dept., 134 AD3d at 1185, quoting Matter of Peckham v
Calogero, 12 NY3d 424, 431 [2009]; see Matter of Beck-Nichols v
Bianco, 20 NY3d 540, 559 [2013]). Furthermore, "[t]his Court
'will not substitute its judgment for that of [respondent] if his
conclusion is reasonably supported by the record'" (Matter of
Salatel v New York State Police, 98 AD3d 1214, 1215 [2012],
quoting Matter of Novotny v Constantine, 150 AD2d 852, 853
[1989]; see Matter of Wilburn v McMahon, 296 AD2d 805, 806
[2002]).

      In denying petitioner's request for the identification
card, respondent considered the IAB report issued on March 14,
2012. According to that report, petitioner encountered what he
deemed to be a "fatigued driver" but, when interviewed,
petitioner "was unable to clearly articulate the actions he took
when dealing with [the driver]," "took little to no investigative
action to properly determine whether or not [the driver] was
impaired or intoxicated" – despite observing containers of
alcohol in the vehicle – and failed to properly document the
encounter. The report determined that petitioner had committed
two violations, including "[r]eluctance to perform official
duties" and "neglect of duty," as well as failing to prepare an
incident report to document the relevant call. The IAB
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investigation also revealed that petitioner had been "the subject
of recent counseling and below standard performance ratings
related to a lack of Vehicle [and] Traffic [L]aw enforcement"
and, as a result, it was "difficult to determine whether
[petitioner was] either incompetent . . . or unwilling to take
appropriate enforcement action." The investigator recommended
that the complaint be classified as "founded" and forwarded for
appropriate administrative action.

      In addition, respondent considered a memorandum from
Anthony Ellis, Deputy Superintendent of IAB, in which Ellis
explained that petitioner had been the subject of six founded
personnel complaints during his tenure as a trooper and,
moreover, petitioner was "the subject of a pending personnel
complaint at the time of his retirement," the investigation of
which had recently yielded a finding of misconduct. Ellis then
described the nature of petitioner's founded personnel
complaints, concluding that "[petitioner] retired as a result of
the pending personnel complaint" and "[petitioner] ha[d] shown a
pattern of neglect of duty and disobeying directives over his
career" and "did not retire in good standing." Ellis
"recommend[ed] against [the] issuance of a New York State Police
Permit." Furthermore, the record establishes that, although no
charges were preferred against petitioner, his formal notice of
his intention to retire effectively suspended any internal
disciplinary proceedings against him.

      Although petitioner denied that he engaged in misconduct or
retired to avoid disciplinary action, we find that the record
supports respondent's determination that petitioner was not
eligible for the requested identification card because he engaged
in serious misconduct shortly before his retirement and did not
retire in good standing. As the determination is not arbitrary
and capricious or lacking in a rational basis, it will not be
disturbed. We have reviewed petitioner's remaining contentions
and find them to be without merit.

     Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ., concur.
                        -5-                  522019

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
