Hanlon v. New York State Police , 19 N.Y.S.3d 386 ( 2015 )

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, Monroe County [Ann Marie Taddeo, J.], entered Apr. 1, 2015) to review a determination of respondent. The determination terminated the employment of petitioner.

It is hereby ordered that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination finding him guilty of disciplinary charges and terminating his employment as a State Trooper following a hearing pursuant to Civil Service Law § 75. We reject petitioner’s contention that certain charges were time-barred pursuant to Civil Service Law § 75 (4). Pursuant to that statute, a disciplinary action must be commenced within 18 months of the occurrence of the “alleged incompetency or misconduct complained of”; however, if the misconduct charged “would, if proved in a court of appropriate jurisdiction, constitute a crime,” the 18-month limitation does not apply (id.; see Matter of Langler v County of Cayuga, 68 AD3d 1775, 1776 [2009]; Matter of Mieles v Safir, 272 AD2d 199, 199 [2000]). Here, the charges alleged conduct that would, if proved, constitute the crime of official misconduct (Penal Law § 195.00) and, therefore, they are not time-barred (see Matter of McFarland v Abate, 203 AD2d 190, 190 [1994]). Contrary to petitioner’s further contentions, the determination is supported by substantial evidence, and the penalty is not shocking to one’s sense of fairness (see Matter of Tessiero v Bennett, 50 AD3d 1368, 1369-1370 [2008]; Matter of Wilburn v McMahon, 296 AD2d 805, 806-807 [2002]). Finally, Supreme Court did not abuse its discretion in denying petitioner’s requested discovery inasmuch as petitioner failed to demonstrate that discovery was necessary (see Matter of Bramble v New York City Dept. of Educ., 125 AD3d 856, 857 [2015]; see generally CPLR 408, 7804 [a]). Present — Scudder, P.J., Centra, Peradotto, Lindley and Valentino, JJ.