IN RE: Application of Lancaster CLARK (1997)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Lancaster CLARK, Petitioner, For a Judgment, etc., v. William J. BRATTON, as Police Commissioner of the City of New York, et al., Respondents.

Decided: September 25, 1997

Before MURPHY, P.J., and MILONAS, WALLACH, RUBIN and MAZZARELLI, JJ.

Raymond E. Kerno, for petitioner. John Hogrogian, for respondents.

Determination of respondent Police Commissioner dated October 25, 1995, finding petitioner guilty of striking a prisoner about the head and body with a wooden stick, and suspending him for 30 days and placing him on probation for one year, 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 [Stanley Parness, J.], entered May 22, 1996), dismissed, without costs.

Respondent's determination that petitioner assaulted a prisoner while in an isolation cell is supported by substantial evidence, including the eyewitness testimony of two prisoners. The duty of weighing the evidence, including the character of the eyewitnesses, rested with respondent, who reasonably concluded that their testimony, coupled with that of the emergency medical technician and another officer, corroborated the complainant's claim in all major respects. We have considered petitioner's other arguments, including that the penalty is excessive, and find them to be without merit.

MEMORANDUM DECISION.

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