VAN SLYKE v. ONONDAGA COUNTY DEPARTMENT OF PERSONNEL

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

Matter of Brett A. VAN SLYKE, Petitioner, v. ONONDAGA COUNTY DEPARTMENT OF PERSONNEL and County of Onondaga, Respondents.

Decided: March 31, 1999

PRESENT:  DENMAN, P.J., GREEN, PINE, HAYES and HURLBUTT, JJ. D. Jeffrey Gosch, Syracuse, for petitioner. Lawrence Robert Williams, of counsel, Onondaga County Department of Law, Syracuse, for respondents.

Petitioner was employed as a correction officer for about five years until he was laid off and placed on a Preferred Eligible List (List) for reappointment as a correction officer or to a comparable position.   Within two months, petitioner was notified that he was being considered for appointment to the position of Deputy Sheriff, a position comparable to that of correction officer.   A Sheriff's detective who interviewed petitioner before administering a polygraph examination concluded that petitioner had violated several sections of the Penal Law. The examination was canceled.   Petitioner was advised that he would not be offered employment with the Sheriff's Department and was requested to execute a waiver of his right to appointment from the List. He declined to do so.

At a hearing pursuant to Civil Service Law § 81(7), the detective testified that petitioner's responses to several questions established that petitioner was unfit for the position.   Petitioner's testimony contradicted that of the detective in several material aspects.   The Hearing Officer sustained the first charge against petitioner, namely, that he accepted gifts or gratuities from inmates in exchange for favors.   With respect to the remaining charges, the Hearing Officer concluded either that the evidence did not support them or that proof of guilt would not warrant dismissal from public service.

 Petitioner contends that there is no substantial evidence to support the determination to remove his name from the List. The testimony of the detective constitutes substantial evidence to support the determination.   Although that testimony is hearsay, inculpatory hearsay statements may constitute substantial evidence (see, Matter of Krouth v. New York State Bd. of Parole, 184 A.D.2d 1012, 1013, 586 N.Y.S.2d 919, lv. denied 80 N.Y.2d 758, 589 N.Y.S.2d 309, 602 N.E.2d 1125;  see generally, Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 7803:3, at 359, citing People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).

 We reject the contention of petitioner that the penalty is so disproportionate to the offense as to be shocking to one's sense of fairness (see generally, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 234-235, 356 N.Y.S.2d 833, 313 N.E.2d 321).   Accepting gifts or gratuities from prisoners in exchange for favors is a violation of 9 NYCRR 7019.1 and could lead to dismissal of a correction officer (see, Civil Service Law § 81[7] ).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: