Farrell v. Kelly

Determination of respondent Police Commissioner, dated August 9, 2002, dismissing petitioner from his position as a police officer, 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 January 30, 2003) dismissed, without costs. The determination that petitioner refrained from taking police action against a brothel because he intended to patronize it 249 is supported by substantial evidence, namely, the hearsay statements of two prostitutes who worked at the brothel picking petitioner out of a photo array as one of the police officers who used the brothel (see Matter of McDonald v Safir, 254 AD2d 234 [1998], lv denied 92 NY2d 819 [1999]). The determination that petitioner falsely stated at his departmental interview that he was never inside a second brothel is also supported by substantial evidence, namely, a surveillance tape showing him there and an explanation for such presence that respondent rationally rejected as incredible (see id.). The penalty of dismissal does not shock our sense of fairness (see id.; Matter of Malave v Safir, 270 AD2d 72 [2000]). We have considered petitioner’s other arguments and find them unavailing. Concur—Tom, J.P., Andrias, Sullivan and Friedman, JJ.