Pachucki v. Walters

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination by the Town Board of the Town of Guilderland which dismissed petitioner from employment as a town police officer. This matter was previously before this court and, at that time, we withheld our decision and remitted the matter to the town board for a statement of their findings of fact (Matter of Pachucki v Walters, 56 AD2d 677). On remittal the town board found petitioner guilty of charge number four based on the factual finding that "he did take and remove from the Guilderland town hall a quantity of motor oil belonging to the town with the intent of appropriating it to his own personal use”. Although three witnesses at the hearing testified that they had seen petitioner removing motor oil from the police offices, one of these witnesses stated specifically that she had seen petitioner place two cans of motor oil in his personal car after his shift had ended and then drive away. Petitioner challenges the *1012veracity and credibility of these witnesses. This court, however, may not weigh the evidence where, as here, there is substantial evidence to support the town board’s determination and, therefore, the board’s finding of petitioner’s guilt cannot be disturbed (Matter of Collins v Codd, 38 NY2d 269). Petitioner also contends that the penalty of dismissal imposed upon him was an abuse of discretion in that it was grossly excessive. Even though the amount of motor oil allegedly removed by petitioner is small, we cannot say, considering the nature of the offense, that the penalty imposed is so disproportionate to the misconduct as to be shocking to one’s sense of fairness. Consequently, a modification with respect to the penalty imposed is not warranted (Matter of Alñeri v Murphy, 38 NY2d 976; Matter of Pell v Board of Educ., 34 NY2d 222). We find no merit in petitioner’s remaining contention that the town board failed to set forth its findings of fact in support of its determination. Therefore, the determination of the town board must be confirmed. Determination confirmed, and petition dismissed, without costs. Greenblott, J. P., Sweeney, Main, Larkin and Herlihy, JJ., concur.