Imposing a greater penalty than that recommended by adisciplinary hearing officer
2012 NY Slip Op 08219, Appellate Division, Third Department
Disciplinary chargeswere filed against a correction corporal [P] alleging that P struck aninmate across the face with an open hand fracturing the inmate's nose while theinmate allegedly was handcuffed and apparently intoxicated.
In the course of the disciplinary hearing P admitted that he struckthe inmate and a surveillance video that recorded the incident was admitted into evidence. The HearingOfficer sustained the charges and imposed as penalty a 30-day suspensionwithout pay.
The Ulster County Sheriff adopted the findings of theHearing Officer as to P’s guilt but concluded that the appropriate penalty wastermination of P's employment with the Sheriff's Department.
Supreme Court dismissed P’s Article 78 petition seeing tovacate his dismissal notwithstanding his “unblemished record of employment with theDepartment” and P appealed.
The Appellate Division sustained the lower court’s ruling,indicated that its review of the penalty imposed was "limited to whetherthe penalty is so disproportionate as to be shocking to one's sense offairness" – the so-called Pell Doctrine [Pell v Board of Education, 34 NY2d 222].
Concluding the P’s dismissal was not shocking to one's senseof fairness given the supervisory nature of his position in the Department andthe fact that when this incident occurred, the inmate was handcuffed and underrestraint, the court explained that the Sheriff had the right, in determiningthe penalty to be imposed, to take into account that P did not fully disclosewhat transpired in the Department's official report, including the fact that hehad struck the inmate while he was under restraint.
The decision is posted on the Internet at:
===================
Hiç yorum yok:
Yorum Gönder