                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522536
________________________________

In the Matter of STEVEN M.
   YOUNG,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
VILLAGE OF GOUVERNEUR, by
   RONALD McDOUGALL, as Mayor
   of the Village of
   Gouverneur,
                    Respondent.
________________________________


Calendar Date:   October 19, 2016

Before:   Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

                             __________


      Campany, McArdle & Randle, PLLC, Lowville (Kevin McArdle of
counsel), for petitioner.

      Case & Leader, LLP, Gouverneur (Henry J. Leader of
counsel), for respondent.

                             __________


Mulvey, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in St. Lawrence
County) to review a determination of respondent terminating
petitioner's employment.

      Petitioner served as a police officer in respondent's
police department and was the chief engineer in respondent's fire
department. In July 2013, after petitioner was observed on a
surveillance video pumping gasoline from respondent's fueling
system into his personal vehicle, the State Police conducted an
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investigation. The investigation revealed that petitioner
possessed two keys that accessed respondent's fueling system, an
E2 key and an E6 key. According to respondent's records, the E2
key tracked fuel usage for the police department and the E6 key,
among others, tracked fuel usage for the fire department. In the
course of the investigation, petitioner told the State Police
investigator that he filled his personal vehicle using the fire
department E6 key and then made a sworn written statement
describing, among other things, his usage of the keys to access
respondent's gasoline.

      Petitioner was charged with violating the police
department's rules of conduct by wrongfully taking gasoline from
the police department's account and by making a false statement
under oath. Following a hearing, the Hearing Officer found that
the evidence did not substantiate the charges that petitioner
wrongfully took gasoline from respondent. However, the Hearing
Officer found that the preponderance of the evidence supported
six of the charges that petitioner made a false statement under
oath to the State Police and, thus, termination of his employment
was warranted. Respondent adopted the Hearing Officer's findings
in their entirety and terminated petitioner. Thereafter,
petitioner commenced this CPLR article 78 proceeding to annul
respondent's determination, and the matter was transferred to
this Court.

      Petitioner initially argues that the determination was not
supported by substantial evidence. Substantial evidence has been
defined "as such relevant proof as a reasonable mind may accept
as adequate to support a conclusion or ultimate fact, and is less
than a preponderance of the evidence, overwhelming evidence or
evidence beyond a reasonable doubt" (Matter of Ridge Rd. Fire
Dist. v Schiano, 16 NY3d 494, 499 [2011] [internal quotation
marks and citation omitted]). "[S]ubstantial evidence may be
based on inferences drawn from competent proof produced at a
hearing that are reasonable and plausible, not necessarily the
most probable" (Matter of Rauschmeier v Village of Johnson City,
91 AD3d 1080, 1082 [2012] [internal quotation marks and citation
omitted], lv denied 19 NY3d 802 [2012]). Petitioner did not
challenge that he was the person in the surveillance footage
taking fuel, but testified that he was getting fuel in relation
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to his fire department duties, which permitted the refueling of
personal vehicles from respondent's fueling system when used for
fire department purposes. Petitioner also acknowledged that in
his statement he declared that "[e]ach key usage . . . charges
the appropriate department and vehicle for the fuel usage and
this is tracked."

      Petitioner's understanding of respondent's fuel system,
testimony that the E2 key was to be used only for police
department vehicles, his experience using the E2 key as a police
officer, and the unrefuted evidence that the E6 module had not
been used since April 2013 constitute substantial evidence that
petitioner knew the difference between the E2 key and the E6 key.
The foregoing constitutes substantial evidence that, in a sworn
written statement, petitioner falsely asserted that he used the
E6 key and did not use the E2 key to fill his personal vehicle
(see Matter of Rauschmeier v Village of Johnson City, 91 AD3d at
1082-1083; compare Matter of Meaney v Village of Johnson City, 95
AD3d 1640, 1642 n 1 [2012]). The six charges against petitioner,
founded upon his false statement to the State Police, should
therefore be sustained (see Matter of Rounds v Town of Vestal, 15
AD3d 819, 822 [2005]).

      Petitioner next contends that respondent erred by accepting
the Hearing Officer's findings without explanation. Given the
sufficiency of the Hearing Officer's findings, respondent's
acceptance was adequate (see Matter of Ernst v Saratoga County,
251 AD2d 866, 867 [1998]). We also find no merit to petitioner's
contention that he was denied due process in that the charges
were not sufficiently specific. "The charged misconduct . . .
need only be reasonably specific, in light of all the relevant
circumstances, so as to apprise the party who is the subject of
the hearing and to allow such party to prepare an adequate
defense" (Matter of Auxier v Town of Laurens, 23 AD3d 912, 913
[2005] [internal quotation marks and citations omitted]; see
Matter of Rounds v Town of Vestal, 15 AD3d at 822). Here, the
written charges provided to petitioner alleged that petitioner
"wrongfully took gasoline from the account specifically reserved
for the [police] for use in [his] personal vehicle" and that he
provided a false written statement under oath on September 3,
2013 in the related investigation. The charges also contained
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specific references to rules of conduct that petitioner was
alleged to have violated (compare Matter of Bigando v Heitzman,
187 AD2d 917, 918-919 [1992]). Petitioner received proper
written notice of the charges against him and those charges were
sufficiently specific to allow for an adequate defense (see
Matter of McKenzie v Board of Educ. of the City Sch. Dist. of
Albany, 100 AD3d 1096, 1098 [2012]; Matter of Auxier v Town of
Laurens, 23 AD3d at 913).

      Finally, petitioner argues that the penalty of termination
is excessive. In evaluating whether the penalty is excessive,
this Court "'must consider whether, in light of all the relevant
circumstances, the penalty is so disproportionate to the charged
offense[s] as to shock one's sense of fairness'" (Matter of
Bottari v Saratoga Springs City School Dist., 3 AD3d 832, 833
[2004], quoting Matter of Smith v Board of Educ. of Taconic Hills
Cent. School Dist., 235 AD2d 912, 914 [1997]; accord Matter of
Thornton v Edwards-Knox Cent. Sch. Dist. Bd. of Educ., 105 AD3d
1206, 1206-1207 [2013]). "This calculus involves consideration
of whether the impact of the penalty on the individual is so
severe that it is disproportionate to the misconduct, or to the
harm to the agency or the public in general" (Matter of Kelly v
Safir, 96 NY2d 32, 38 [2001]). We are mindful of "the high
standard of character to which police officers are held" and the
substantiated charges of providing a false statement under oath
should not go unpunished (Matter of Castell v City of Saratoga
Springs, 24 AD3d 1059, 1061 [2005]; see Matter of Lyons v
Superintendent of State Police, 129 AD3d 1238, 1240 [2015]). As
all six charges pertaining to the false statement given to the
State Police were sustained by the Hearing Officer, petitioner
was subject to the penalty or punishment provided in Civil
Service Law § 75 (3), including "a reprimand, a fine not to
exceed one hundred dollars . . ., suspension without pay for a
period not exceeding two months, demotion in grade and title, or
dismissal." Here, without further expansion on the Hearing
Officer's findings and recommendations, respondent adopted the
harshest penalty, dismissal. We have sustained a two-month
suspension where a police officer admitted to falsely reporting
an incident (see Matter of Close v Hammond, 166 AD2d 845, 846
[1990]) and a two-month suspension, letter of reprimand and $100
fine when a police officer was found guilty of improperly
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completing an offense report, refusing to comply with an order
and refusing to report to a superior officer (see Matter of
Wilson v Sartori, 70 AD2d 959, 960 [1979]). We have also
sustained a 30-day suspension and six months of probation for a
State Trooper charged with misconduct for advising a friend to
revoke her consent to the search of her residence by other
troopers who were conducting a marihuana investigation (see
Matter of Mokszycki v McMahon, 6 AD3d 952, 953 [2004]).

      Petitioner's personnel record does not indicate any other
disciplinary actions or warnings. He was a police officer for 14
years and served as chief engineer and a member of the fire
department for several years. Given that the charges that he
wrongfully took respondent's gasoline for his personal use were
not sustained and there was no financial loss to respondent, we
believe, based on the totality of the circumstances, that the
penalty imposed is so disproportionate to the offense as to shock
our sense of fairness. We therefore remit the matter to
respondent for a redetermination of the penalty. Petitioner's
remaining contentions have been examined and found to be lacking
in merit.

     Peters, P.J., Garry, Egan Jr. and Rose, JJ., concur.


      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as imposed the penalty of
termination of employment; matter remitted to respondent for
further proceedings not inconsistent with this Court's decision;
and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
