Daly v. Commissioner of Police Department of New York

Determination of the respondent Police Commissioner dated June 14, 1989, which imposed a 30-day suspension, which was suspended for a probationary period of one year, is unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this court by order of Sup Ct, NY County [Edward Lehner, J.], entered Mar. 5, 1990) is dismissed, without costs and without disbursements.

Petitioner was found guilty of a single charge of misconduct for having pointed his gun at a civilian driver after a traffic *687stop. Petitioner was assigned to one of the three undercover units which were in the area on the night of the incident, and had been identified from a photo array. Accordingly, there was substantial evidence that petitioner was the officer who had committed the misconduct. The Hearing Officer was entitled to find that the lack of recall on the part of the three undercover officers, including petitioner, and the two uniform officers was incredible, and evinced guilt. There was no indication that the use of the weapon constituted proper police conduct. Concur—Milonas, J. P., Wallach, Asch, Kassal and Smith, JJ.