IN RE: Application of Manuel MIELES

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

IN RE: Application of Manuel MIELES, Petitioner, For a Judgment, etc., v. Howard SAFIR, as Police Commissioner of the City of New York, et al., Respondents.

Decided: May 18, 2000

WILLIAMS, J.P., TOM, MAZZARELLI and BUCKLEY, JJ. Richard H.B. Murray, for Petitioner. Paul L. Herzfeld, for Respondents.

Determination of respondent Police Commissioner, dated October 16, 1998, 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 [Barbara Kapnick, J.], entered May 12, 1999), dismissed, without costs.

 Substantial evidence supports respondent's findings that petitioner, inter alia, used false pretenses to trick the owner of a broken-down vehicle into giving him the title thereto, removed the vehicle from the street and sold it to a salvage company.   No basis exists to disturb the Hearing Officer's findings of credibility.   There is no merit to petitioner's argument that the charge specifying such “unauthorized exercise of [petitioner's] official functions”, in violation of section 104-01, page 3, paragraph 4 of the Police Department Patrol Guide's prohibition against “conduct prejudicial to good order, efficiency or discipline of the department”, was barred by the 18-month Statute of Limitations in Civil Service Law § 75(4).   The misconduct charged also constituted the crime of official misconduct (Penal Law § 195.00[1] ), which is expressly excluded from the time bar of section 75(4) (see, Matter of McFarland v. Abate, 203 A.D.2d 190, 611 N.Y.S.2d 153).