Matter of Victor Rodriguez-Rivera v Raymond Kelly

Matter of Rodriguez-Rivera v Kelly 2004 NY Slip Op 03710 [2 NY3d 776] May 6, 2004 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 11, 2004

[*1] In the Matter of Victor Rodriguez-Rivera, Respondent,
v
Raymond Kelly, as Police Commissioner of the City of New York, et al., Appellants.

Decided May 6, 2004

Matter of Rodriguez-Rivera v Kelly, 3 AD3d 379, reversed.

APPEARANCES OF COUNSEL

Michael A. Cardozo, Corporation Counsel, New York City (Stephen J. McGrath of counsel), for appellants.

Worth, Longworth & London, LLP, New York City (Howard B. Sterinbach of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the petition dismissed.

We agree with the dissenters below that the majority improperly substituted its credibility determinations for those of the Police Commissioner (Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]), and that a rational basis exists in the record to support the Police Commissioner's determination that petitioner failed to render all necessary police services. The Police Commissioner did not abuse his discretion in ordering the forfeiture of 15 days' vacation time because the penalty does not shock judicial conscience in light of the serious nature of the offense (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]; see also Matter of Pell v Board of Educ., 34 NY2d 222, 233 [1974]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment reversed, etc.