IN RE: Ernesto MARKS (2025)

Determination of respondent Police Commissioner, dated May 28, 2021, which, after a hearing, terminated petitioner's employment with the New York City Police Department (N.Y.PD), unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order, Supreme Court, New York County [William Perry, J.], entered September 26, 2022) dismissed, without costs.

Substantial evidence supports the finding that petitioner is guilty of seven disciplinary charges against him, including that he engaged in a physical altercation with his former girlfriend, left the scene, violated an order of protection, knowingly associated with an individual believed to be engaged in criminal activities in contravention of a direct order, made a misleading statement during an official NYPD interview, and conducted personal inquiries on an NYPD computer (see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181–182, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978]).  The Hearing Officer was entitled to find that petitioner's alibi evidence lacked credibility (see Matter of Nelke v. Department of Motor Vehs. of the State of N.Y., 79 A.D.3d 433, 434, 915 N.Y.S.2d 219 [1st Dept. 2010]).  The dismissal of criminal charges against petitioner related to the altercation and the violation of the order of protection does not undermine NYPD's determination, since “NYPD can impose discipline for a broad range of conduct ․ even if that conduct is not criminal” (Matter of Joseph v. Sewell, 227 A.D.3d 616, 617, 213 N.Y.S.3d 11 [1st Dept. 2024] [internal quotation mark omitted]).

This Court has no discretionary authority to review petitioner's unpreserved challenges to the admission of sealed arrest records at the hearing, NYPD's reliance on Civil Service Law § 75, or the reliability of the hearing transcript (see Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001];  see also Matter of 333 E. 49th Partnership, LP v. New York State Div. of Hous. & Community Renewal, 165 A.D.3d 93, 99, 83 N.Y.S.3d 461 [1st Dept. 2018], lv denied 33 N.Y.3d 908, 2019 WL 2437955 [2019]).

We have considered and rejected petitioner's remaining due process challenges to the evidentiary hearing, at which he was represented by counsel (see Matter of Castillo v. Shea, 226 A.D.3d 531, 531, 207 N.Y.S.3d 512 [1st Dept. 2024]).

The penalty of termination is not disproportionate to the severity of petitioner's conduct, particularly in light of his disciplinary history (see e.g. Matter of Joseph, 227 A.D.3d at 617, 213 N.Y.S.3d 11;  Matter of Castillo, 226 A.D.3d at 531, 207 N.Y.S.3d 512).

We have considered petitioner's additional arguments and find them unavailing.