IN RE: Joseph VITALE (2025)

Determination of respondent Police Commissioner, dated February 1, 2024, which approved the finding of the Assistant Deputy Commissioner of Trials that petitioner police officer was guilty of misconduct, and imposed the recommended penalty of forfeiture of 20 vacation days, 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 [Lyle E. Frank, J.], entered November 7, 2024) dismissed, without costs.

Substantial evidence supports the finding that petitioner was guilty of using an offensive slur against the complainants (see Matter of Edwards v. Safir, 282 A.D.2d 287, 287, 723 N.Y.S.2d 355 [1st Dept. 2001]).  The Assistant Deputy Commissioner of Trials credited the complainants’ statements to the Civilian Complaint Review Board, which were consistent with each other.  Such findings are largely unreviewable by this Court (see Lackow v. Department of Educ. [or “Board”] of City of N.Y., 51 A.D.3d 563, 568, 859 N.Y.S.2d 52 [1st Dept. 2008]) and this Court may not “substitute[ ] its credibility determinations for those of the Police Commissioner” (Matter of Rodriguez–Rivera v. Kelly, 2 N.Y.3d 776, 777, 780 N.Y.S.2d 302, 812 N.E.2d 1251 [2004]).  Moreover, the Assistant Deputy Commissioner of Trials did not err in relying on the complainants’ hearsay statements.  “[H]earsay evidence is admissible in an administrative hearing, and may constitute substantial evidence for purposes of article 78 review” (Matter of Melendez v. O'Neill, 184 A.D.3d 457, 457, 123 N.Y.S.3d 823 [1st Dept. 2020]).