Opinion
January 23, 1995
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
The petitioner, a sanitation worker employed by the Village of Port Chester, was convicted of attempted criminal sale of a controlled substance in the third degree on September 12, 1990. The petitioner failed to report for work on March 15 and March 19, 1993, and also failed to report for work on March 23, 1993, after having been directed to report to work. After a hearing, the Hearing Officer found that the absences were unauthorized, that the conviction constituted misconduct, and he recommended that the petitioner's employment be terminated. By resolution dated May 24, 1993, the Board of Trustees of the Village of Port Chester (hereinafter the Board), confirmed the Hearing Officer's findings and accepted his recommendation that the petitioner's employment be terminated. On June 21, 1993, a post-termination hearing was held before the Board. After the hearing, the Board adhered to its prior resolution and found that the termination of the petitioner's employment was proper under the circumstances.
Contrary to the petitioner's contention, his conviction for attempted criminal sale of a controlled substance in the third degree constituted misconduct (see, Matter of Cromwell v. Bates, 105 A.D.2d 699). The determination that the petitioner's absences were unauthorized was also supported by substantial evidence (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130; Matter of Purdy v. Kreisberg, 47 N.Y.2d 354, 358; 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 179; Matter of Foust v. Village of Port Chester, 211 A.D.2d 717 [decided herewith]; Matter of De Stefano v. Village of Port Chester, 211 A.D.2d 716 [decided herewith]).
Under the circumstances, the termination of petitioner's employment was not so disproportionate to the offense as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233; Matter of Butterly Green v Lomenzo, 36 N.Y.2d 250, 255; Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 445). Therefore, the determination of the Board should not be disturbed.
The petitioner's remaining contentions are unpreserved for appellate review (see, Matter of Hughes v. Suffolk County Dept. of Civ. Serv., 74 N.Y.2d 833, 834; Matter of NAB Constr. Corp. v Goldin, 175 A.D.2d 245; Matter of Hennekens v. State Tax Commn., 114 A.D.2d 599). In any event, those contentions are without merit. Rosenblatt, J.P., Altman, Friedmann and Florio, JJ., concur.