IN RE: Application of James BOTTE (1999)

Determination of respondent Police Commissioner dated October 15, 1997,dismissing 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 [Louise Gruner Gans, J.], entered May 6, 1998), dismissed, without costs.

 Respondent's findings that petitioner removed a vest from a suspect and failed to turn it over to the arresting officers, and that he gave false and misleading statements at official interviews concerning the incident, are supported by substantial evidence, including the testimony of other police officers who were at the scene establishing that petitioner was the last person seen with the vest.   Petitioner's testimony purporting to explain his almost complete lack of recall about the incident at his departmental interviews held some 16 and 19 months after the incident was properly rejected by the Hearing Officer as a matter of credibility.   The penalty of dismissal does not shock our sense of fairness (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 445, 522 N.Y.S.2d 478, 517 N.E.2d 193).

MEMORANDUM DECISION.