Opinion
February 14, 1984
Proceeding pursuant to CPLR article 78 to review a determination of respondent Board of Fire Commissioners of the Mastic Beach Fire District, dated December 24, 1982, which, after a hearing, inter alia, ordered petitioner removed as a member of the Mastic Beach Fire Department. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. Initially, it is noted that respondent Board of Fire Commissioners of the Mastic Beach Fire District had jurisdiction, pursuant to section 209- l of the General Municipal Law, to entertain removal proceedings based upon the misconduct of petitioner, a volunteer fireman, who had the status of a life member of the Mastic Beach Fire Department (see Matter of Acker v Board of Fire Comrs., 25 A.D.2d 282; Matter of Busking v Kronimus, 41 Misc.2d 985, aff'd. 22 A.D.2d 888). While petitioner raised in his petition the question of whether respondent board's finding of misconduct was based upon substantial evidence, in his brief, petitioner concedes that a charge of misconduct can be supported by a guilty plea in a prior criminal prosecution. Accordingly, petitioner's pleas of guilty to the crimes of filing of a false instrument in the second degree and petit larceny, as evidenced by a certified copy of the transcript of the minutes of the plea proceedings and a certified copy of the disposition, were sufficient to support the board's determination of misconduct (cf. Matter of Pozarny v State of New York, 92 A.D.2d 954; Matter of Chilson v Board of Educ., 41 A.D.2d 739, aff'd. 34 N.Y.2d 222). Furthermore, the penalty of removal imposed herein was not "`"so disproportionate to the offense[s], in the light of all the circumstances, as to be shocking to one's sense of fairness"'" ( Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233, quoting from Matter of McDermott v Murphy, 15 A.D.2d 479, aff'd. 12 N.Y.2d 780). Respondent properly found that petitioner "violated his public trust", in that the crimes he pleaded guilty to were committed against the Mastic Beach Fire District while petitioner was a fire commissioner of the fire district. The question before us is not "whether we might have imposed another or different penalty", but whether respondent board "reasonably acted within the scope of its powers. The answer [to the latter question] must be in the affirmative" ( Matter of Pell v Board of Educ., 34 N.Y.2d 222, 238, supra). Finally, we find that the hearing held was not conducted in violation of petitioner's due process rights. Lazer, J.P., Thompson, Bracken and Rubin, JJ., concur.