Williams v. New York State Department of Mental Hygiene ( 1976 )

Determination unanimously confirmed, without costs. Memorandum: Petitioner seeks review of a determination by Lawrence J. Maxwell as Acting Director of the Rome State School which demoted him to Grade 7 effective April 25, 1974. Petitioner was charged with misconduct in that: "At 2:25 p.m. March 25, 1973 another employee walked on the Ward upon which you were the Supervisor. The employee stated: 'Watch this’ and ran over and slapped Vincent Martorella on the head while Mr. Martorella was sleeping in his chair. Mr. Martorella leaped up, started screaming and ran off the Ward holding his head. You in your capacity as Ward Charge failed to report this incident to the proper School officials.” The hearing officer found petitioner guilty and recommended demotion of petitioner from his position as Mental Hygiene Therapy Aide to that of Mental Hygiene Assistant Therapy Aide. Acting Director Lawrence J. Maxwell accepted the recommendation of the hearing officer and imposed a penalty of demotion to Grade 7, Mental Hygiene Assistant Therapy Aide. At the hearing Trooper Robert Cooke testified that he was assigned to the Rome State School, working undercover as a ward aide during the periods in question. Trooper Cooke worked with petitioner Edward Williams in Ward 097, J Building. Trooper Cooke and petitioner were both sitting at the desk in the day room of Ward 097 on March 25, 1973 in the afternoon. Another employee, one Ed Kutsco, came into the ward, looked at Trooper Cooke and petitioner and said, "Watch this”, then walked behind a sleeping patient named Vincent Martorella and slapped him behind the head with a loud report. The patient jumped up screaming, hollering and rubbing his head and ran from the ward. Petitioner and Kutsco started to laugh. Kutsco then came over and had a conversation with petitioner which Trooper Cooke could not overhear. A few moments later Trooper Cooke went outside the ward where the patient Martorella had run and noticed that he was still rubbing his head. Cooke was sitting right next to petitioner when the patient was struck. Petitioner testified that he was in charge of Ward 097, Building J on March 25, 1973 upon which ward resided 40 to 50 patients. Vincent Martorella was a patient familiar to him, approximately 50 to 55 years old and bald. He had worked with Ed Kutsco for four months in Building J15. On the day in question Kutsco came in and talked to petitioner and Cooke a minute, then said he was going over to see his buddy Vincent Martorella. Kutsco walked over to Martorella and gave him a playful tap on the head. Martorella then got up and ran over to Kutsco who was standing by the TV, smiled, shook hands and embraced Kutsco. Martorella then went back to his seat. Edwin F. Kutsco testified he first met the patient Vincent Martorella in 1970. He used to play a game where he gave Martorella a little tap on the head and Martorella did the same to him on various occasions. On March 25, 1973 Kutsco came up to Martorella, tapped him on the forehead from behind and Martorella turned around, saw who it was and just laughed. The evidence clearly supports the guilt of petitioner with respect to the charge made and his demotion to Assistant Mental Hygiene Therapy Aide from Mental Hygiene Therapy Aide (see Matter of Merriman v State Dept, of Mental Hygiene, 52 AD2d 726). (Article 78 proceeding to review determination demoting petitioner, transferred by order of Oneida Supreme Court.) Present—Marsh, P. J., Simons, Dillon, Goldman and Witmer, JJ.