Opinion
February 17, 1972
Determination of respondent Commissioner of Social Services, dated March 17, 1971, dismissing petitioner from his position as a caseworker, unanimously annulled, on the law, without costs and without disbursements, and the matter remanded to the Commissioner for rehearing and reconsideration. The evidence at the hearing consisted of documentary exhibits of the Criminal Court proceedings wherein the petitioner pleaded guilty to violation of subdivision 1 of section 240.25 Penal of the Penal Law (harassment). This was not the original crime alleged of endangering the welfare of a minor (§ 260.15). The plea then was not to the morals aspect of the complaint, and this is made clear in the minutes of the plea. The petitioner testified at this hearing before the Commissioner and denied the morals charge. Since there was no corroboration of the documentary evidence, respondent, in relying on this hearsay evidence, has not met the burden of "substantial evidence". (Cf. Matter of Erdman v. Ingraham, 28 A.D.2d 5.) The witnesses necessary to respondent's case can be presented on any subsequent hearing to afford the petitioner the right to controvert the charges against him at a fair and complete hearing.
Concur — Stevens, P.J., McGivern, Markewich, Nunez and Murphy, JJ.