IN RE: Christopher SCOTT

Reset A A Font size: Print

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

IN RE: Christopher SCOTT, etc., Petitioner, v. Raymond KELLY, etc., et al., Respondents.

Decided: May 20, 2003

TOM, J.P., MAZZARELLI, ROSENBERGER, ELLERIN, and WILLIAMS, JJ. Howard B. Sterinbach, for Petitioner. Drake A. Colley, for Respondents.

Determination of respondent Police Commissioner, dated December 31, 2001, suspending petitioner from his position as a New York City police officer for fifteen days without pay, 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 [Saralee Evans, J.], entered July 29, 2002), dismissed, without costs.

 Respondent's finding that petitioner had used excessive force against an arrestee is supported by substantial evidence, including the testimony of the complainant (see Matter of Wagner v. Kerik, 298 A.D.2d 322, 748 N.Y.S.2d 860).   Because disciplinary proceedings against police officers are governed by the Administrative Code of the City of New York, petitioner's contention that he was entitled to notice of the charges and specifications against him in accordance with the requirements of Civil Service Law § 75(4) is unavailing (see Matter of Montella v. Bratton, 93 N.Y.2d 424, 691 N.Y.S.2d 372, 713 N.E.2d 406).   Moreover, the limitations imposed by Civil Service Law § 75(4) are expressly inapplicable where an employee is charged with conduct, which if proved in a court of appropriate jurisdiction would constitute a crime, and the conduct with which petitioner was charged would, if proved in court, constitute a crime.   Finally, the penalty imposed is not shocking to our sense of fairness (see Matter of Kelly v. Safir, 96 N.Y.2d 32, 39-40, 724 N.Y.S.2d 680, 747 N.E.2d 1280).