Matter of Elias v Kelly

Matter of Elias v Kelly 2008 NY Slip Op 08522 [56 AD3d 283] November 13, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

In the Matter of Lou-Ann Elias, Petitioner,
v
Raymond Kelly, as Police Commissioner of the City of New York, et al., Respondents.

—[*1] Lou-Ann Elias, petitioner pro se.

Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondents.

Determination of respondent Police Commissioner, dated March 20, 2007, finding petitioner guilty of engaging in prohibited conduct and directing that she forfeit the 40 days served in suspension, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Lewis Bart Stone, J.], entered December 10, 2007), dismissed, without costs.

Petitioner was present in the home of her estranged husband, where she had reason to believe marijuana plants were being grown, as evidenced by her admission that he was evasive about a room in the basement that was always kept locked and had told her about the idea to grow marijuana in the basement at least one or two weeks earlier. Given these facts and petitioner's use of the garage, which was in close proximity to the growing room from where the smell of marijuana and heat from the high intensity lamps were emanating, the finding that petitioner's ignorance of the criminal activity was deliberate was supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). No basis exists to disturb the credibility findings of the hearing officer (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]).

Police discipline in New York City is subject to the Administrative Code of the City of New York and thus, the procedures set forth in Civil Service Law § 75 are inapplicable herein (see Matter of Montella v Bratton, 93 NY2d 424, 430 [1999]). Nor does the imposition of the 40-day suspension violate Administrative Code § 14-115 (a) (former § 434a-14.0). Finally, we find that the penalty imposed does not shock the conscience (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]). [*2]

We have considered petitioner's remaining arguments and find them unavailing. Concur—Lippman, P.J., Sweeny, Catterson, Acosta and Renwick, JJ.