Opinion
5492
December 4, 2001.
Determination of respondent Police Commissioner, dated February 25, 2000, dismissing petitioner from his position as a police officer, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Joan Madden, J.], entered on or about September 22, 2000), dismissed, without costs.
Howard B. Sterinbach, for petitioner.
Marta Ross, for respondent.
Before: Sullivan, P.J., Williams, Ellerin, Lerner, Saxe, JJ.
Substantial evidence, including the testimony of disinterested eyewitnesses, supports respondent's findings that petitioner's altercation with a civilian while off-duty did not justify petitioner's firing his service gun at the civilian, causing serious injury to the civilian and endangering persons nearby. No basis exists to disturb respondent's credibility findings that petitioner had the advantage in the altercation and was not confronted with a threat to his life at the moment he fired his gun (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444; cf., People v. Wesley, 76 N.Y.2d 555, 559). Nor was petitioner's right to challenge the hearing officer's findings prior to respondent Commissioner's decision (see, Matter of Fogel v. Board of Educ., 48 A.D.2d 925) violated by respondent Police Department's alleged leak of the hearing officer's report to the press prior to petitioner's receipt of it and prior to the Commissioner's decision, where petitioner's ability to challenge the hearing officer's findings were not in any way adversely affected. The penalty of dismissal does not shock our sense of fairness.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.