IN RE: Gary ROY

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

IN RE: Gary ROY, Petitioner, v. The CITY OF NEW YORK, et al., Respondents.

Decided: February 18, 1999

ROSENBERGER, J.P., NARDELLI, TOM and ANDRIAS, JJ. Mitchell Garber, for Petitioner. Timothy J. O'Shaughnessy, for Respondents.

Determination of respondent Police Department dated July 26, 1996, which dismissed petitioner from his position as a police officer, unanimously modified, on the law, to the extent of awarding back pay for the period of petitioner's suspension without pay in excess of 30 days, the matter remanded to respondents for a determination of the amount of such back pay and of any deductions for outside compensation earned by petitioner during such period, the petition otherwise denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Edward Lehner, J.], entered June 10, 1997), otherwise disposed of by confirming the remainder of the determination, without costs.

 The information supplied by an informant that she had observed petitioner using drugs on numerous occasions, which information was reasonably detailed and included a declaration against penal interest, constituted substantial evidence of the reasonable suspicion required for an order directing a drug test for cause (see, Matter of Giammarino v. Ward, 161 A.D.2d 440, 555 N.Y.S.2d 358, lv. denied 76 N.Y.2d 704, 559 N.Y.S.2d 983, 559 N.E.2d 677).   It can be reasonably inferred from the evidence that the officer who ordered the drug test acted upon information conveyed by a fellow officer who possessed the requisite reasonable suspicion (see, Matter of Partland v. Bratton, 247 A.D.2d 261, 668 N.Y.S.2d 604), and, accepting the credibility determinations of the hearing officer, there was substantial evidence that petitioner refused to comply with such order (see, id.).   In the circumstances, the penalty of dismissal does not shock our sense of fairness (see, Matter of Perez v. Ward, 69 N.Y.2d 840, 514 N.Y.S.2d 703, 507 N.E.2d 296).   Since petitioner was suspended without pay on May 2, 1996 and dismissed, following the hearing and determination of the charge supporting the suspension, on July 26, 1996, and since there is no evidence that petitioner was responsible for the delay in the determination of the charge beyond the 30 days permitted under Civil Service Law § 75(3), he is entitled to back pay for the period from June 2, 1996 to July 26, 1996, less any earnings he may have received from other sources during that period (see, Gerber v. New York City Hous. Auth., 42 N.Y.2d 162, 164-165, 397 N.Y.S.2d 608, 366 N.E.2d 268).

MEMORANDUM DECISION.