IN RE: Christopher Broich (2010)

Argued-January 7, 2010

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Board of the Village of Southampton, dated December 13, 2007, made after a hearing, which found the petitioner guilty of 16 charges of misconduct and/or incompetence, and terminated his employment as a Police Officer with the Village of Southampton Police Department.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The determination is supported by substantial evidence (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443;  300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180;  Matter of Mistretta v. Kane, 251 A.D.2d 418).   The few instances of conflicting testimony merely “raised issues of credibility for the Hearing Officer to resolve” (Matter of Leong v. Safir, 259 A.D.2d 751, 752;  see Matter of Berenhaus v. Ward, 70 N.Y.2d at 443-444).

Judicial review of an administrative penalty is limited to “whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law” (Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, see Matter of Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale, Mamaroneck, Westchester County, 34 N.Y.2d 222, 237).  “A penalty must be upheld unless it is ‘so disproportionate to the offense as to be shocking to one's sense of fairness,’ thus constituting an abuse of discretion as a matter of law” (Matter of Kelly v. Safir, 96 N.Y.2d at 38, quoting Matter of Pell v. Board of Educ., 34 N.Y.2d at 237;  see Matter of Harp v. New York City Police Dept., 96 N.Y.2d 892, 894;  Matter of Ward v. Juettner, 63 AD3d 748, 749).  “A result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals” (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 234).

Despite the petitioner's many years of prior service, his acts, inter alia, of insubordination, lying to his superiors, deserting his duty post, and failing to provide backup “cannot be sanctioned since such behavior poses a serious threat to the discipline and efficiency of the police force” (Matter of DeVito v. Culross, 220 A.D.2d 747, 748).   Dismissal for any one of these acts would not be so disproportionate to the offense as to be shocking to one's sense of fairness (see Trotta v. Ward, 77 N.Y.2d 827, 828;  Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 234;  Matter of Gamma v. City of Newburgh, 277 A.D.2d 236, 237), especially in light of his prior disciplinary record (see Matter of Toth v. Nassau County Police Dept., 302 A.D.2d 600).

The petitioner's remaining contentions similarly are without merit.

FISHER, J.P., FLORIO, BELEN and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court