Labor & Employment Law

Appellate Division holds substantial evidence supports disciplinary hearing officer?s findings

Mercado v Kelly, 2008 NY Slip Op 07175, Decided on September 30, 2008, Appellate Division, First Department

Benigno Mercado appealed his termination from his position as a New York City police officer after he was found guilty of certain charges following a disciplinary hearing.

The Appellate Division, in a unanimous decision, said that ?Substantial evidence supports the findings, including that [Mercado] possessed a stolen license plate and made false and misleading statements about whether he knew the plate was stolen.

Accordingly, the court dismissed Mercado?s appeal as ?There is no basis for disturbing the hearing officer's assessment of petitioner's credibility regarding the inconsistencies between his plea allocution in the criminal case against him and his statements to the Internal Affairs Bureau investigators.?

As to the penalty imposed by the Police Commissioner, dismissal, the Appellate Division said that ?The penalty of dismissal does not shock our sense of fairness, particularly where the evidence gives rise to the inference that petitioner obtained the stolen license plate by virtue of his official position and intended to use the plate for fraudulent purposes, citing Kelly Safir, 96 NY2d 32.

Full post as published by New York Public Personnel Law on October 02, 2008 (boomark / email).