IN RE: Application of George McDONALD

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

IN RE: Application of George McDONALD, Petitioner, For a Judgment, etc., v. Howard SAFIR, etc., et al., Respondents.

Decided: October 29, 1998

Before ROSENBERGER, J.P., and NARDELLI, MAZZARELLI, ANDRIAS and SAXE, JJ. Robert Julian Lashaw, for petitioner. Timothy J. O'Shaughnessy, for respondents.

Determination of respondent Police Commissioner dated June 2, 1997, 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 [Paula Omansky, J.], entered February 27, 1998) dismissed, without costs.

 Respondent's finding that petitioner patronized a prostitute in violation of section 104-01 of the Police Department Patrol Guide is supported by substantial evidence, albeit all hearsay (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997;  Matter of LaFemina v. Brown, 194 A.D.2d 405, 598 N.Y.S.2d 785).   The evidentiary support includes the testimony of three police officers describing what the prostitute told them, and the record of petitioner's departmental interview, which was put into evidence when petitioner decided not to testify and found by the hearing officer to contain a “preposterous explanation for [petitioner's] presence at the scene” and otherwise “strain credulity to the breaking point”.   The penalty of dismissal does not shock our sense of fairness (cf., Matter of Alfieri v. Murphy, 38 N.Y.2d 976, 384 N.Y.S.2d 157, 348 N.E.2d 614).