                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     518837
________________________________

In the Matter of SEAMUS LYONS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

SUPERINTENDENT OF STATE POLICE,
   JOSEPH D'AMICO, et al.,
                    Respondents.
________________________________


Calendar Date:   April 21, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Rose, JJ.

                             __________


      Law Office of Terrance P. Dwyer, Poughkeepsie (Terrance P.
Dwyer of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Kate H.
Nepveu of counsel), for respondents.

                             __________


Lahtinen, J.P.

      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 Division of State Police
Hearing Board which found petitioner guilty of misconduct.

      An internal investigation by the State Police regarding
missing evidence resulted in misconduct charges against
petitioner, a State Trooper, for allegedly failing to obey a
lawful order to truthfully answer questions and knowingly making
a false entry in official records. Following a disciplinary
hearing, respondent Division of State Police Hearing Board found
petitioner guilty of the two charges and recommended 60 days
unpaid suspension, one year of probation and a letter of censure.
                              -2-                518837

Thereafter, a police captain showed petitioner a determination
already signed by respondent Superintendent of State Police that
terminated petitioner's employment, and the captain told
petitioner that he had 10 minutes in which to resign or he would
be terminated. Petitioner resigned.

      Petitioner subsequently commenced this CPLR article 78
proceeding seeking to be reinstated. Respondents moved to
dismiss asserting that petitioner's decision to resign resulted
in no final agency determination. In January 2014, Supreme Court
denied the motion, finding that there had been a final agency
determination given the proof that petitioner had been shown a
termination letter already signed by the Superintendent and then
allowed only 10 minutes to either resign or he would be fired.
Respondents' motion to reconsider was denied in May 2014 and,
thereafter, an order was entered in August 2014 transferring the
case to this Court for review of the substantial evidence
question.

      Initially, we consider respondents' argument that, since
petitioner resigned, there was no final agency action over which
the Court has jurisdiction. Although a resignation "would
ordinarily be beyond our review, exceptions exist where . . . the
resignation was allegedly ineffective and involuntary" (Matter of
Melber v New York State Educ. Dept., 71 AD3d 1216, 1217 n [2010]
[citation omitted]). It is undisputed that the Superintendent
had signed a written decision terminating petitioner's
employment. Significantly, the document was handed to petitioner
and he was then told that he had 10 minutes to accept an "option"
of resigning. Under the narrow circumstances, petitioner was
effectively terminated by a final agency action when he was
handed the signed termination document.

      Turning to the merits, our review is limited to whether the
agency's determination is supported by substantial evidence (see
Matter of Revella v Felton, 60 AD3d 1184, 1185 [2009]).
Credibility determinations are for the administrative factfinder
when conflicting proof is presented (see Matter of Bassett v
Fenton, 68 AD3d 1385, 1387 [2009]; Matter of Tessiero v Bennett,
50 AD3d 1368, 1369 [2008]). Petitioner and a police investigator
were assigned to transport cocaine and marihuana that had been
                              -3-                518837

seized and then to secure the illegal substances in an evidence
locker at a police lab. However, the evidence was lost. During
the ensuing investigation, petitioner gave statements and made
factual claims that were contradicted by, among other things,
proof provided by EZ Pass records, electronic key records, and
cell phone records. Petitioner contended that he had interacted
with an investigator at the lab where the lost evidence was to be
delivered, but records reflected that such investigator was not
working on that date and, moreover, an investigator who was
working stated that petitioner had not been at the lab. Despite
various monitoring systems that were in place at the lab, there
was no indication that petitioner or the investigator who
accompanied him were at the lab or accessed the evidence locker
on the day in question. Efforts by police to recreate the routes
and times that petitioner claimed he traveled revealed that the
routes could not be traveled as claimed by petitioner. Although
petitioner offered explanations for some of the many
discrepancies, this created a credibility question which was
resolved against him. Substantial evidence supports the
administrative determination.

      With regard to the penalty, we have observed that "a State
Trooper holds a position of great sensitivity and trust and a
higher standard of fitness and character pertains to police
officers than to ordinary civil servants" (Matter of Bassett v
Fenton, 68 AD3d at 1387-1388 [internal quotation marks, brackets
and citations omitted]). In light of findings of repeated false
statements where the underlying matter implicated missing
evidence, together with the failure to accept responsibility even
when confronted with contrary documentary proof, we cannot say
that the penalty shocks our sense of fairness (see id. at 1388;
see also Matter of Salatel v New York State Police, 98 AD3d 1214,
1216 [2012]).

     McCarthy, Garry and Rose, JJ., concur.
                              -4-                  518837

      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
