IN RE: Police Officer Maribel PENNEY

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

IN RE: Police Officer Maribel PENNEY, etc., Petitioner, v. Raymond W. KELLY, as Police Commissioner of the City of New York, et al., Respondents.

Decided: March 31, 2005

FRIEDMAN, J.P., MARLOW, NARDELLI, SWEENY, CATTERSON, JJ. Worth, Longworth & London, LLP, New York (Howard B. Sterinbach of counsel), for petitioner. Michael A. Cardozo, Corporation Counsel, New York (Edward F.X. Hart of counsel), for respondents.

Determination of respondent Police Commissioner, dated April 6, 2003, finding petitioner police officer guilty of being absent from her assignment without permission or police necessity, engaging in conduct prejudicial to the good order, efficiency and discipline of the Department, and failing to properly safeguard her service firearm, and imposing a forfeiture of 20 vacation days, 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 [Doris Ling-Cohan, J.], entered January 8, 2004) dismissed, without costs.

 The finding that petitioner was absent from her assignment is supported by substantial evidence, including her own testimony admitting that she took a personal break that was significantly longer than what both she and her supervisor understood to be the allotted time.   The other two charges are supported by the testimony of the lieutenant who witnessed petitioner's conduct.   No basis exists to disturb respondent's findings of credibility (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ).   The penalty does not shock our sense of fairness.

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