New York Appellate Division Reports

MATTER OF DAVID RODRIGUEZ v. DIINA, TP 06-00685 [4th Dept 12-22-2006] 2006 NY Slip Op 09802 MATTER OF DAVID RODRIGUEZ, Petitioner, v. ROCCO J. DIINA, AS COMMISSIONER OF BUFFALO POLICE DEPARTMENT, BUFFALO POLICE DEPARTMENT AND CITY OF BUFFALO, Respondents. TP 06-00685. Appellate Division of the Supreme Court of New York, Fourth Department. Decided on December 22, 2006.

Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth
Judicial Department by order of the Supreme Court, Erie
County [John M. Curran, J.], entered December 30, 2004) to
review a determination of respondents. The determination,
after a hearing, terminated petitioner’s employment.

CHIACCHIA & FLEMING, LLP, HAMBURG (ANDREW P. FLEMING OF
COUNSEL), for Petitioner.

ALISA LUKASIEWICZ, CORPORATION COUNSEL, BUFFALO (DIANE T.
O’GORMAN OF COUNSEL), for Respondents.

HURLBUTT, J.P., GORSKI, SMITH, AND PINE, JJ.

It is hereby ORDERED that the determination be and the same
hereby is unanimously confirmed without costs and the
petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78
proceeding seeking to annul the determination finding
petitioner guilty of three charges of misconduct involving
official corruption and terminating his employment as a
detective with respondent Buffalo Police Department. Those
charges sustained by the Hearing Officer alleged that
petitioner participated with three other narcotics officers
in the seizure of over $36,000 from an undercover FBI agent
posing as a drug dealer, and that petitioner thereafter
failed to transmit the money to appropriate police
custodians and to prepare and file appropriate departmental
reports and other documentation regarding the seizure.
Contrary to the contention of petitioner, the determination
that he was guilty of misconduct is supported by
substantial evidence (see generally 300 Gramatan Ave.
Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180
;Matter of Pell v Board of Educ. of Union Free School Dist.
No. 1 of Towns of Scarsdale & Mamaroneck, Westchester
County, 34 NY2d 222, 230-231). Contrary to petitioner’s
further contention, the penalty of termination is not so
disproportionate to the offense as to be shocking to one’s
sense of fairness (see Matter of Berenhaus v Ward, 70 NY2d
436, 445; see also Matter of Kelly v Safir, 96 NY2d 32,
39-40, rearg denied 96 NY2d 854; see generally Matter of
Scahill v Greece Cent. School Dist., 2 NY3d 754, 756; Pell,
34 NY2d at 233). We have considered petitioner’s remaining
contention and conclude that it is lacking in merit.