Matter of Hanlon v New York State Police

Matter of Hanlon v New York State Police 2015 NY Slip Op 08315 Decided on November 13, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 13, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
1248 TP 15-00672

[*1]IN THE MATTER OF CHRISTIAN HANLON, PETITIONER,

v

NEW YORK STATE POLICE, RESPONDENT.

ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA & WOLF, LLP, LAKE SUCCESS (ERIC BROUTMAN OF COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Ann Marie Taddeo, J.], entered April 1, 2015) to review a determination of respondent. The determination terminated the employment of petitioner.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination finding him guilty of disciplinary charges and terminating his employment as a State Trooper following a hearing pursuant to Civil Service Law § 75. We reject petitioner's contention that certain charges were time-barred pursuant to Civil Service Law § 75 (4). Pursuant to that statute, a disciplinary action must be commenced within 18 months of the occurrence of the "alleged incompetency or misconduct complained of"; however, if the misconduct charged "would, if proved in a court of appropriate jurisdiction, constitute a crime," the 18-month limitation does not apply (id.; see Matter of Langler v County of Cayuga, 68 AD3d 1775, 1776; Matter of Mieles v Safir, 272 AD2d 199, 199). Here, the charges alleged conduct that would, if proved, constitute the crime of official misconduct (Penal Law § 195.00) and, therefore, they are not time-barred (see Matter of McFarland v Abate, 203 AD2d 190, 190). Contrary to petitioner's further contentions, the determination is supported by substantial evidence, and the penalty is not shocking to one's sense of fairness (see Matter of Tessiero v Bennett, 50 AD3d 1368, 1369-1370; Matter of Wilburn v McMahon, 296 AD2d 805, 806-807). Finally, Supreme Court did not abuse its discretion in denying petitioner's requested discovery inasmuch as petitioner failed to demonstrate that discovery was necessary (see Matter of Bramble v New York City Dept.

of Educ., 125 AD3d 856, 857; see generally CPLR 408, 7804 [a]).

Entered: November 13, 2015

Frances E. Cafarell

Clerk of the Court