        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

300
TP 13-01542
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.


IN THE MATTER OF FREDERICK FRANKLIN, JR.,
PETITIONER,

                    V                             MEMORANDUM AND ORDER

JOSEPH A. D’AMICO, SUPERINTENDENT, NEW YORK
STATE DIVISION OF STATE POLICE, RESPONDENT.


HARRIS BEACH PLLC, BUFFALO (RICHARD T. SULLIVAN OF COUNSEL), FOR
PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Joseph R.
Glownia, J.], entered March 26, 2013) to annul a determination of
respondent. The determination dismissed petitioner from the Division
of State Police.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner, a former New York State Trooper,
commenced this CPLR article 78 proceeding seeking to annul
respondent’s determination finding him guilty of misconduct or, in the
alternative, to vacate the penalty of dismissal. He contends that the
determination is not supported by substantial evidence and that the
penalty is shocking to one’s sense of fairness.

     Petitioner, a Trooper for over 18 years, was a member of a social
club that rented its clubhouse to another Trooper, who used the
premises to host parties where strippers performed. Several
witnesses, including two other Troopers who attended one party,
testified that the strippers performing at the parties also engaged in
prostitution, i.e., exchanging sexual favors for money, and that they
used the second floor of the clubhouse to do so. It is undisputed
that alcohol was sold to patrons attending the parties, despite the
fact that the club did not have a license to sell alcohol. Petitioner
admitted that he was present for three such parties. In the charges
against petitioner, it was alleged that he knew of the illegal
activities and did not take proper police action to stop them; that he
knowingly frequented an establishment where violations of the law
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                                                         TP 13-01542

existed; that he provided false information during the internal
investigation; and that, by his conduct, he brought discredit to the
Division of State Police. Following a hearing conducted by a Hearing
Board (see 9 NYCRR 479.7), all but one of the charges against him were
sustained. Respondent accepted the findings and recommendations of
the Hearing Board and dismissed petitioner from the Division of State
Police.

     It is well established that, “[i]n CPLR article 78 proceedings to
review determinations of administrative tribunals, the standard of
review for the Appellate Divisions and th[e] Court [of Appeals] is
whether there was substantial evidence to support the Hearing
Officer’s decision” (Matter of Wilson v City of White Plains, 95 NY2d
783, 784-785; see CPLR 7803 [4]; Matter of Kelly v Safir, 96 NY2d 32,
38, rearg denied 96 NY2d 854; Matter of Pell v Board of Educ. of Union
Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,
Westchester County, 34 NY2d 222, 230-231). Contrary to petitioner’s
contention, we conclude that respondent’s determination is supported
by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of
Human Rights, 45 NY2d 176, 179-180).

     Although petitioner denied having any knowledge of the illegal
activities taking place at the parties, there was substantial evidence
establishing the contrary, i.e., that he was aware of those
activities. He gave numerous inconsistent statements regarding
whether he knew the club lacked a liquor license. He evaded answering
basic questions, and the Hearing Board found incredible his testimony
that he had no idea what the term “extras” meant in relationship to
strippers. When asked by one patron at a party what was occurring on
the second floor, petitioner told the patron, “you don’t want to
know,” thereby implying that petitioner knew what was occurring.
Inasmuch as others who attended the parties assumed that prostitution
was occurring on the second floor, the Hearing Board concluded that it
was reasonable to assume that a Trooper with over 18 years of
experience “would surmise that the area was being used for sexual
favors.” Moreover, after petitioner learned that the Trooper hosting
the parties had been questioned by authorities, petitioner immediately
recommended to his club president and to other Troopers that they
disassociate themselves from that Trooper. We conclude that the
Hearing Board properly determined that such evidence is indicative of
a consciousness of guilt.

     Although a different finding would not have been unreasonable,
“ ‘where[, as here,] substantial evidence exists’ to support a
decision being reviewed by the courts, ‘that determination must be
sustained, irrespective of whether a similar quantum of evidence is
available to support other varying conclusions’ ” (Matter of Ridge Rd.
Fire Dist. v Schiano, 16 NY3d 494, 503, quoting Matter of Collins v
Codd, 38 NY2d 269, 270; see Matter of Park Outdoor Adv. of N.Y. v City
of Syracuse, 210 AD2d 907, 908).

      We reject petitioner’s further contention that the penalty of
dismissal is shocking to one’s sense of fairness. “Judicial review of
an administrative penalty is limited to whether the measure or mode of
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                                                         TP 13-01542

penalty or discipline imposed constitutes an abuse of discretion as a
matter of law . . . [T]he Appellate Division is subject to the same
constraints as th[e] Court [of Appeals]—a penalty must be upheld
unless 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” (Kelly, 96 NY2d at 38, quoting Pell, 34 NY2d at 237).
Moreover, “[i]n matters concerning police discipline, ‘great leeway’
must be accorded to the [Superintendent’s] determinations concerning
the appropriate punishment, for it is the [Superintendent], not the
courts, who ‘is accountable to the public for the integrity of the
[Division of State Police]’ ” (Kelly, 96 NY2d at 38, quoting Matter of
Berenhaus v Ward, 70 NY2d 436, 445; see Pell, 34 NY2d at 237; Matter
of Panek v Bennett, 38 AD3d 1251, 1252; Matter of Santos v Chesworth,
133 AD2d 1001, 1003). Given the nature of the offenses, the “ ‘higher
standard of fitness and character [that] pertains to police
officers,’ ” petitioner’s evasive conduct and his refusal to accept
any responsibility for his conduct, we conclude that the penalty of
dismissal does not shock one’s sense of fairness (Matter of Bassett v
Fenton, 68 AD3d 1385, 1387-1388; see e.g. Matter of Boyd v
Constantine, 81 NY2d 189, 196; Matter of Tessiero v Bennett, 50 AD3d
1368, 1370; Matter of Hricik v McMahon, 247 AD2d 935, 936; Matter of
Costa v McMahon, 225 AD2d 694, 695; Matter of Elwood v Constantine,
213 AD2d 870, 872).




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
