IN RE: Application of Frank NAPOLEONI (2000)

Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered September 24, 1999, dismissing the petition brought pursuant to CPLR article 78 to annul respondent's determination terminating petitioner as a New York City police officer and to grant a name-clearing hearing, unanimously modified, on the law, to the extent of granting a name-clearing hearing, and otherwise affirmed, without costs.

 Petitioner, a New York City police officer, entered into a plea agreement with respondent in settlement of disciplinary charges, which alleged that he had made false statements in connection with an official investigation into his conduct.   Pursuant to the agreement, entered into by petitioner upon the advice of counsel, petitioner was, inter alia, placed on probationary status and accordingly was not subsequently entitled to a pretermination hearing under Civil Service Law § 75 (see, Misir v. New York City Hous. Auth., 245 A.D.2d 88, 666 N.Y.S.2d 132, appeal dismissed 92 N.Y.2d 915, 680 N.Y.S.2d 53, 702 N.E.2d 838;  Matter of Rogers v. City of New York Dept. of Correction, 193 A.D.2d 506, 597 N.Y.S.2d 371, appeal dismissed 82 N.Y.2d 820, 605 N.Y.S.2d 1, 625 N.E.2d 586).   In addition, given his probationary status, petitioner remained subject to dismissal for conduct occurring before the execution of the plea agreement (see, Matter of Garrett v. Safir, 253 A.D.2d 700, 677 N.Y.S.2d 570, lv. denied 92 N.Y.2d 817, 684 N.Y.S.2d 489, 707 N.E.2d 444;  Matter of Prestia v. Brown, 191 A.D.2d 224, 595 N.Y.S.2d 678).

 Petitioner's claim that he did not knowingly and voluntarily waive the right to a hearing for conduct predating the execution of his plea agreement is unavailing because the plea agreement was executed by him upon the advice of his attorney (see, Matter of Simpson v. Abate, 213 A.D.2d 190, 625 N.Y.S.2d 2).

Petitioner, however, is entitled to a name-clearing hearing because the government's allegations, if untrue as petitioner alleges, were defamatory, he lost his employment, and there was dissemination of material stigmatizing to him (see, Matter of Swinton v. Safir, 93 N.Y.2d 758, 697 N.Y.S.2d 869, 720 N.E.2d 89).

MEMORANDUM DECISION.