Opinion
October 27, 1998
Respondents' findings that petitioner acted unlawfully and in a manner unacceptable for a police officer in an off-duty encounter with a civilian motorist, knowingly and inappropriately associated with an individual reasonably believed to have been, or likely to be, engaged in criminal activity, and made false and misleading statements to respondents' investigator are supported by substantial evidence. Such evidence includes the transcript of petitioner's criminal trial in connection with the encounter with the civilian, and the testimony of respondents' investigator concerning his investigation into petitioner's association with the individual in question ( see, Matter of LaFemina v. Brown, 194 A.D.2d 405). We reject petitioner's claim that lawful procedure was violated by respondents' investigator's failure to apprise him before interviewing him that his improper association with a known criminal was a subject of the investigation, since the street altercation involved the individual in question, and thus petitioner should have anticipated questions about his relationship with such individual. There is no merit to petitioner's argument that because he was not allowed to personally appear before respondent Authority, he was not afforded an adequate opportunity to review and respond to the findings and recommendations of the Hearing Examiner before respondent made its final determination ( cf., Matter of Sorrentino v. State Liq. Auth., 10 N.Y.2d 143; Matter of Fogel v. Board of Educ., 48 A.D.2d 925). The penalty of dismissal is not disproportionate, but the failure to direct back pay was error ( see, Matter of Sinicropi v. Bennett, 60 N.Y.2d 918, affg 92 A.D.2d 309).
Concur — Sullivan, J. P., Rosenberger, Nardelli, Williams and Andrias, JJ.