Sierra v. McGuire

opinion of the court Sullivan, J. In this CPLR article 78 proceeding Police Officer Jose Sierra challenges a determination finding him guilty, after a departmental hearing, of drawing Ms revolver without just cause and addressing a civilian in a discourteous and disrespectful manner, and dismissing him from the New — 180 — York City Police Department. The charges were an outgrowth of a complaint filed with the police department’s Civilian Complaint Review Board immediately after an incident involving a dispute between Sierra and a motorist over a traffic ticket. On March 25, 1979, Sierra, a 12-year veteran of the police force, was assigned as a substitute chauffeur to Sergeant Edward Hojnacki., At about 12:30 a.m. the officers, proceeding north in a patrol car on Clay Avenue, stopped at the intersection of 175th Street where their; attention was drawn to a horn-blowing car facing east on 175th Street, a short distance from the corner. Apparently, the operator, later identified as the complainant, Godfrey Robinson, was using the horn to signal his arrival to án occupant of an apartment house across the street. When this vehicle proceeded to the corner Sierra had to back up the patrol car which, by now, was stopped in the intersection and blocking traffic. Robinson then proceeded to make a U-turn and stop, double-parked, across the street on 175th Street in front of the corner building from which a woman, later identified as Diana Lebron, Robinson’s girlfriend, emerged. Sierra pulled the patrol car up behind the double-parked vehicle. Both he and Sergeant Hojnacki exited their car and, as obseryed by Lebrón, walked toward Robinson’s car, which Lebrón entered. Sierra then went to the driver’s side, while the sergeant walked to the passenger’s side. After this point the facts are in dispute. Robinson, admitting that be had made a Upturn and honked his horn, testified that Sierra approached the car with his gun drawn and said to him angrily, “You made me look like a jerk. Give me your license and registration.” Sierra, on the other hand, testified that he. never drew his revolver, and merely asked Robinson for his license and registration since he was going to issue him a summons for crossing a double white line. Robinson also testified that Sierra searched Ms car. Lebrón testified that she did not see a gun as the officer approached the car or as he stood by the driver’s side 'and asked Robinson for his license and registration; although she heard Robinson ask the officer after Robinson got out of the car, “[w]hy are you pointing your pistol like that, you — 181 — don’t have to, there is no reason to point the pistol at me?” At this point Lebron also got out of the ear and walked to the rear, from where she saw the Sergeant walk over to Sierra. She did not see a gun at this time either. In fact, she never saw a gun throughout the entire incident. According to Lebron the officer then went back to the patrol car to write the summons. Sergeant Hojnaeki testified that an argument developed between Sierra and Robinson as Robinson, insisting that he had not crossed over a double line protested the issuance of the summons. At one point Hojnaeki heard Robinson say that “this is why cops get killed.” Since the discussion between Robinson and Sierra was getting “out of hand” Hojnaeki ordered Sierra back to the patrol car to write out another summons for Robinson’s improper use of his horn. The sergeant testified that he did not see Sierra remove his gun at any time. The trial commissioner credited Robinson’s version of the incident and found that Sierra “overreacted in a situation where professionalism and calmness should have prevailed”. Taking note of prior incidents in Sierra’s record, he found Sierra to be a “violent prone officer” who should be removed from the force. The police commissioner accepted both the finding and recommendation and dismissed Sierra from the department, whereupon this proceeding was instituted. Special Term annulled the determination, and' this appeal followed. Although we agree with the substance of Special Term’s determination, we are obliged to consider the proceeding, de novo, since the petition raised an issue of substantial evidence which should have been transferred to this court for review in the first instance. (See CPLR 7804, subd [g].) We may, however, in such cases, consider the matter, de novo, as though it had been transferred. (See Matter of Rivera v Beekman, 86 AD2d 1; Matter of Memoli v Toia, 68 AD2d 889; Matter of Hammerl v Mavis, 41 AD2d 724, affd 34 NY2d 579.) In an article 78 review of an administrative decision made as the result of a hearing at which evidence is taken the judicial function is limited to an inquiry of whether the determination is, on the entire record, supported by sub — 182 — stantial evidence. (See CPLR 7803, subd 4.) An ample body Of guiding principles has been developed to assist courts in determining that issue. Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180.) An administrative determination supported by such evidence has a rational basis and may not be disturbed. (Matter of Pell v Board of Educ., 34 NY2d 222, 230-231.) In an administrative hearing the credibility of witnesses is a matter for the hearing officer. (Matter of Collins v Codd, 38 NY2d 269; Matter of Stork Rest. v Boland, 282 NY 256, 267.) Central to all these principles is the caveat “that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion.” (Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508, 520.) But while the scope of article 78 review is narrow, courts are not required to render blind obeisance to an administrator’s determination after a hearing, lest they abdicate their judicial responsibility. The record as a whole must be scrutinized to determine whether an administrative finding has a basis in substantial evidence. (See Matter of McCormack v National City Bank of N. Y., 303 NY 5, 9.) In order to reach his finding the trial commissioner had to credit fully the testimony of Robinson, notwithstanding that he was an interested witness, to the exclusion of all the other credible testimony which disputed his version of the incident. Not even Lebrón, who was seated in the front passenger’s seat at the time, supported his testimony that Sierra approached the car and pointed a gun in his face as lie sat in the driver’s seat. In fact, she categorically denied ever seeing a gun and, although she testified that she heard Robinson ask the officer, while both men were standing outside the car, why he was pointing his gun at him, she did not see a gun when she exited the car immediately after hearing that remark. Sergeant Hojnacki, an 18-year veteran of the police department, and the only other witness to the event, testified that he never saw Sierra draw — 183 — his revolver. Nor did he ever hear Sierra act disrespectfully towards Robinson, although both men were getting excited and raising their voices. Lebron’s main contribution to this aspect of the department’s case was her facile characterization that the officer appeared to be “uptight”. Thus, except for Lebron’s testimony that she heard Robinson tell Sierra that he did not have to pull his gun, Robinson’s testimony on the critical point of whether Sierra drew his gun went uncorroborated, notwithstanding that the incident was of relatively brief duration and was confined to the immediate area in and about Robinson’s car. These are factors which normally would tend to make the respective accounts of the participants coalesce. We find Robinson’s testimony about the search of the car highly significant. According to his chronology of events the search took place after Sierra put a gun in his face and ordered him out of the car, but before his comment about the gun which prompted Lebrón to exit the car. Robinson testified that the gun was out during this period. Yet Lebrón, who was in the car at the time of the search, according to Robinson (she did not say anything about a search during the hearing), denied ever seeing a gun. Nor did Sergeant Hojnacki, who was standing astride the car, ever see a gun. In concluding that Robinson’s version of the incident cannot withstand analysis we are aware that the trial commissioner found him to be a credible witness. But that finding is flawed in light of the contradictory testimony of both, hostile and friendly witnesses, and an obvious self-interest which colors his entire story. Nor should any trier of the facts readily accept Lebron’s testimony about overhearing Robinson mention a gun, when she herself did not testify to seeing a gun which, according to Robinson, was drawn as Sierra approached the vehicle and stuck in his! face as he sat in the driver’s seat while Lebrón admittedly sat alongside him. “[A] finding is supported by the evidence only when the evidence is so substantial that from it an inference of the existence of the fact found may be drawn reasonably. A mere scintilla of evidence sufficient to justify a suspicion is — 184 — not sufficient to support á finding upon which legal rights and obligations are based.” (Matter of Stork Rest. v Boland, 282 NY, at pp 273-274) In our review of the record and applying “the only available objective test” — the test of substantial evidence — we cannot find “ ‘ “such relevant evidence as a reasonable mind might accept as adequate to support” ’ ” the finding of guilt. (Matter of Kopec v Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 NY 65, 71, citing Consolidated Edison Co. v National Labor Relations Bd305 US 197.) Finally, we note that Sierra, with a prior disciplinary record which includes the unauthorized use of a weapon, albeit in an off-duty setting, is a ready-made target for this type of accusation. He obviously is an extremely aggressive and effective police officer, as evidenced by his commendable record which, in a 12-year career, encompasses participation in nearly 800 arrests, and the award of 77 citations including 60 Excellent Police Duty Awards, 12 Meritorious Police Duty Awards, 2 Commendations, 1 Unit Citation, 1 Medal of Merit, and 1 Honorable Mention. We are not blind to the possibility that none of the witnesses was completely truthful and that, as a result, we may never know what actually happened: Nevertheless, as Special Term noted, “[e]ven if Robinson’s version of the offense is accepted at the very most the gun could have been in Sierra’s hand for an extremely short period of time.” Certainly, in light of the circumstances and Sierra’s record, his actions should not be deemed so precipitous as to warrant the dismantling of a career. Nor does Ms prior disciplinary record, when considered with his actions here, warrant such a result. “[WJhere the finding of guilt is confirmed and. punishment has been imposed, the test is whether such punishment is ‘ “ so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness”.’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233, citing Matter of McDermott v Murphy, 15 AD2d 479, affd 12 NY2d 780; Matter of Stolz v Board of Regents, 4 AB2d 361.) Accordingly, the order and judgment (one paper), Supreme Court, New York County (Okin, J.), entered October 7, 1981, which, inter alia, annulled respondent police com — 185 — missioner’s determination of November 20, 1980 dismissing petitioner as a member of the Police Department of the City of New York and remanded the matter for further proceedings, should be vacated, and under the provisions of CPLR 7804 (subd g) this court treats the proceeding as if it had been transferred to it in the first instance, and the petition is granted and the determination annulled, without costs or disbursements.