Opinion
December 1, 1994
Appeal from the Supreme Court, New York County (William McCooe, J.).
Testimony adduced at the hearing provided substantial evidence that petitioner committed acts of misconduct directed against three female co-workers, including unwanted physical contact and sexually suggestive remarks (see, Matter of Hansley v Koehler, 169 A.D.2d 545; Matter of Mutchler [Hudacs], 186 A.D.2d 970), and the penalty of dismissal does not shock one's sense of fairness (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233; cf., Matter of Hansley v Koehler, supra). The record does not support petitioner's claim that the Hearing Officer denied him an opportunity to be heard on the issue of appropriate penalty, and he exercised his opportunity to address this issue in his post-hearing comments directed to respondent pursuant to the collective bargaining agreement, but did so therein only to the extent of requesting complete exoneration. Nor did the Hearing Officer deny petitioner due process by reviewing respondent OCA's investigative files in camera rather than turning them over outright, or by denying petitioner's application for an adjournment to subpoena additional witnesses. "The hearings held in disciplinary proceedings are not governed by the rules obtaining at a criminal trial", and "[p]etitioner does not have an absolute right to disclosure * * * of any * * * information" (Matter of Coleman v Kramer, 198 A.D.2d 12, 13, lv denied 84 N.Y.2d 801). Inasmuch as the files in question were the subject of a concurrent criminal investigation, the Hearing Officer's in camera review protected both the integrity of the on-going criminal investigation as well as petitioner's need to determine whether the files contained any exculpatory information. Denial of the adjournment petitioner requested to subpoena additional witnesses was not an abuse of discretion, since petitioner was aware of the existence of the witnesses on the first day of the hearing but waited until the next day to request the adjournment, and moreover, did not make a sufficient showing that the witnesses would provide relevant testimony. We have reviewed petitioner's other claims and find them to be without merit.
Concur — Ellerin, J.P., Wallach, Asch, Nardelli and Tom, JJ.