Opinion
9590.
November 28, 2006.
Determination of respondent Police Commissioner, dated May 31, 2004, dismissing petitioner from her position as a police officer, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred by order of the Supreme Court, New York County [Doris LingCohan, J.], entered July 5, 2005) dismissed, without costs.
Before: Buckley, P.J., Mazzarelli, Nardelli, Catterson and Malone, JJ.
The determination that petitioner, inter alia, gave evasive answers and failed promptly to identify herself as a police officer on May 13, 2000, was unfit for duty due to intoxication on December 22, 2000, made false statements during the subsequent internal investigation, and provided a forged doctor's note was supported by substantial evidence. The Assistant Deputy Commissioner-Trials, who heard and saw the witnesses, was in the best position to judge their credibility ( see e.g. Matter of Berenhaus v Ward, 70 NY2d 436, 443). The penalty of dismissal does not shock the conscience ( see e.g. Matter of Harp v New York City Police Dept, 96 NY2d 892).
While petitioner's pursuit of her prior successful article 78 proceeding ( Matter of Willis v New York City Police Dept, 214 AD2d 428) constitutes conduct protected by the First Amendment ( see Matter of Buric v Safir, 285 AD2d 255, 265, lv dismissed 98 NY2d 688), we do not find a viable issue as to whether such conduct was a substantial or motivating factor in the decision to bring the latest charges against petitioner, such as might warrant a hearing.