Matter of Edward Garcia v Raymond W. Kelly

Matter of Garcia v Kelly 2004 NY Slip Op 01682 [5 AD3d 206] March 11, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 26, 2004

In the Matter of Edward Garcia, Petitioner,
v
Raymond W. Kelly, as Police Commissioner of the City of New York, et al., Respondents.

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Determination of respondent Police Commissioner, dated April 9, 2002, which dismissed petitioner from his position as a police officer, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Robert Lippmann, J.], entered on or about November 27, 2002) dismissed, without costs.

Substantial evidence, including the testimony of a member of the field team working with petitioner in an undercover narcotics operation, established that petitioner engaged in serious misconduct relating to the disposition of drugs recovered in that operation. There is no basis for disturbing respondent's determinations concerning credibility (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]).

The penalty of dismissal does not shock our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]). Concur—Tom, J.P., Mazzarelli, Sullivan, Ellerin and Friedman, JJ.