IN RE: Application of Police Officer Brian POTTER

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

IN RE: Application of Police Officer Brian POTTER, etc., Petitioner, For a Judgment, etc., v. Howard SAFIR, etc., et al., Respondents.

Decided: June 12, 2001

SULLIVAN, P.J., NARDELLI, MAZZARELLI, RUBIN and SAXE, JJ. Howard B. Sterinbach, for Petitioner. Edward F.X. Hart, for Respondents.

Determination of respondent Commissioner of the New York City Police Department, dated March 3, 2000, which imposed a forfeiture of 20 vacation days, upon a finding, after a hearing, that petitioner unjustifiably and without provocation struck an individual with a nightstick, 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 [Jane Solomon, J.], entered September 15, 2000), dismissed, without costs.

 Substantial evidence, including the testimony of the complainant and corroborative testimony by other witnesses, supports respondent's findings that petitioner, without provocation or just cause, repeatedly struck an individual with a nightstick during the course of an arrest (see, Matter of Edwards v. Safir, 282 A.D.2d 287, 723 N.Y.S.2d 355).   The penalty imposed is not shocking to our sense of fairness, particularly in view of the seriousness of the offense (see, Matter of Kelly v. Safir, 96 N.Y.2d 32, 724 N.Y.S.2d 680, 747 N.E.2d 1280).