1 No. 105 SSM 12: In the Matter of Victor Rodriguez-Rivera, &c. v. Raymond Kelly, &c., et al.

1 No. 105 SSM 12
In the Matter of Victor Rodriguez-Rivera, &c.,
Respondent,
v.
Raymond Kelly, &c., et al.,
Appellants.

2004 NY Int. 60

May 6, 2004

This memorandum is uncorrected and subject to revision before publication in the New York Reports.

Submitted by Stephen J. McGrath, for appellants.
Submitted by Howard B. Sterinbach, for respondent.

MEMORANDUM:

The judgment of the Appellate Division should be reversed, with costs, and the petition dismissed.

We agree with the dissenters below that the majority improperly substituted its credibility determinations for those of the Police Commissioner ( Matter of Berenhaus v Ward, , 70 NY2d 436, 443-444 [1987]), and that a rational basis exists in the record to support the Police Commissioner's determination that petitioner failed to render all necessary police services. The Police Commissioner did not abuse his discretion in ordering the forfeiture of 15 days' vacation time because the penalty does not shock judicial conscience in light of the serious nature of the offense ( see Matter of Kelly v Safir, , 96 NY2d 32, 39-40 2000]; see also Matter of Pell v Board of Educ., , 34 NY2d 222, 233 [1974]).