Taylor v. City of Glen Cove

Proceeding pursuant to CPLR article 78 to review a determination of the City of Glen Cove dated October 29, 2008, made after a hearing pursuant to Civil Service Law § 75, finding the petitioner guilty of two charges of misconduct, and terminating his employment.

The petitioner, a Supervisor of Sanitation in the Department of Public Works of the City of Glen Cove, pleaded guilty to the crimes of criminal sale of a controlled substance in the fifth degree, a class D felony, and criminal possession of a weapon in the fourth degree, a class A misdemeanor. He was brought up on disciplinary charges pursuant to Civil Service Law § 75. After a hearing, the petitioner was found guilty of two charges of misconduct: (1) committing an offense which reflected unfavorably upon his moral character and brought discredit to the City; and (2) pleading guilty to a class D felony and a class A misdemeanor. As a result, the petitioner was terminated from his employment.

“In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination” (Matter of Ward v Juettner, 63 AD3d 748 , 748 [2009]; see Matter of Kelly v Safir, 96 NY2d 32 , 38 [2001]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 , 231 [1974]). Here, contrary to the petitioner’s contention, his conviction of criminal sale of a controlled substance in the fifth degree and criminal possession of a weapon in the fourth degree constituted misconduct (see Matter of Telesco v Village of Port Chester, 211 AD2d 723 [1995]; Matter of Cromwell v Bates, 105 AD2d 699 [1984]; Matter of Zazycki v City of Albany, 94 AD2d 925 [1983]). Accordingly, there was substantial evidence to support the determination (see generally Matter of Berenhaus v Ward, 70 NY2d 436 , 443-444 [1987]; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 , 180-181 [1978]; Matter of Ward v Juettner, 63 AD3d 748 [2009]; Matter of Revella v Felton, 60 AD3d 1184 [2009]).

Further, the termination of the petitioner’s employment was not so disproportionate to the offense as to be shocking to one’s sense of fairness (see Matter of Kelly v Safir, 96 NY2d at 38 ; Matter of Featherstone v Franco, 95 NY2d 550 , 554 [2000]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d at 237 ). Fisher, J.P., Santucci, Eng and Chambers, JJ., concur.