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

IN RE: Angela WILLIS, Petitioner, v. Raymond KELLY, as Commissioner of the New York City Police Department, et al., Respondents.

Decided: November 28, 2006

BUCKLEY, P.J., MAZZARELLI, NARDELLI, CATTERSON, MALONE, JJ. Gordon, Gordon & Schnapp, P.C., New York (Kenneth E. Gordon of counsel), for petitioner. Michael A. Cardozo, Corporation Counsel, New York (Scott Shorr of counsel), for respondents.

Determination of respondent Police Commissioner, dated May 31, 2004, dismissing petitioner from her position as a police officer, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred by order of the Supreme Court, New York County [Doris Ling-Cohan, J.], entered July 5, 2005) dismissed, without costs.

 The determination that petitioner, inter alia, gave evasive answers and failed promptly to identify herself as a police officer on May 13, 2000, was unfit for duty due to intoxication on December 22, 2000, made false statements during the subsequent internal investigation, and provided a forged doctor's note was supported by substantial evidence.   The Assistant Deputy Commissioner-Trials, who heard and saw the witnesses, was in the best position to judge their credibility (see e.g. Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ).   The penalty of dismissal does not shock the conscience (see e.g. Matter of Harp v. New York City Police Dept., 96 N.Y.2d 892, 730 N.Y.S.2d 786, 756 N.E.2d 74 [2001] ).

 While petitioner's pursuit of her prior successful article 78 proceeding (Matter of Willis v. New York City Police Dept., 214 A.D.2d 428, 625 N.Y.S.2d 43 [1995] ) constitutes conduct protected by the First Amendment (see Matter of Buric v. Safir, 285 A.D.2d 255, 265, 736 N.Y.S.2d 342 [2002], lv. dismissed 98 N.Y.2d 688, 746 N.Y.S.2d 689, 774 N.E.2d 754 [2002] ), we do not find a viable issue as to whether such conduct was a substantial or motivating factor in the decision to bring the latest charges against petitioner, such as might warrant a hearing.