Opinion
No. 105 SSM 12.
Decided May 6, 2004.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered January 15, 2004, in a proceeding pursuant to CPLR article 78 (transferred to the Appellate Division by order of the Supreme Court, New York County). The Appellate Division, with two Justices dissenting, (1) annulled a determination of respondent Police Commissioner, which had found petitioner police officer guilty of specifications charging him with failing to render all necessary police services and imposed a penalty of forfeiture of 15 vacation days, and (2) granted the petition.
Matter of Rodriguez-Rivera v. Kelly, 3 AD3d 379, reversed.
Michael A. Cardozo, Corporation Counsel, New York City ( Stephen J. McGrath of counsel), for appellants.
Worth, Longworth London, LLP, New York City ( Howard B. Sterinbach of counsel), for respondent.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The judgment of the Appellate Division should be reversed, with costs, and the petition dismissed.
We agree with the dissenters below that the majority improperly substituted its credibility determinations for those of the Police Commissioner ( Matter of Berenhaus v. Ward, 70 NY2d 436, 443-444), and that a rational basis exists in the record to support the Police Commissioner's determination that petitioner failed to render all necessary police services. The Police Commissioner did not abuse his discretion in ordering the forfeiture of 15 days' vacation time because the penalty does not shock judicial conscience in light of the serious nature of the offense ( see Matter of Kelly v. Safir, 96 NY2d 32, 39-40; see also Matter of Pell v. Board of Educ., 34 NY2d 222, 233).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), judgment reversed, etc.