HANLON, CHRISTIAN v. NEW YORK STATE POLICE ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1248
TP 15-00672
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
IN THE MATTER OF CHRISTIAN HANLON, PETITIONER,
V MEMORANDUM AND ORDER
NEW YORK STATE POLICE, RESPONDENT.
ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA & WOLF, LLP,
LAKE SUCCESS (ERIC BROUTMAN OF COUNSEL), FOR PETITIONER.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENT.
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 April 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; Matter of
Mieles v Safir, 272 AD2d 199, 199). 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). 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; Matter of Wilburn v McMahon, 296 AD2d 805, 806-807). 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.
-2- 1248
TP 15-00672
of Educ., 125 AD3d 856, 857; see generally CPLR 408, 7804 [a]).
Entered: November 13, 2015 Frances E. Cafarell
Clerk of the Court