In the Matter of Robert Smith, Petitioner, v. Bernard Kerik, Respondent

In the Matter of Robert Smith, Petitioner, v Bernard Kerik, Respondent. [738 NYS2d 568] [MAJORITY] Determination of respondent Police Commissioner, dated June 13, 2000, terminating petitioner’s employment as a detective, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Marcy Friedman, J.], entered February 2, 2001), dismissed, without costs. Respondent’s findings that petitioner unjustifiably struck the complainant with a pistol while engaged in unauthorized off-duty employment as a security guard at a nightclub, and subsequently encouraged fellow detectives to arrest the complainant without informing them of the imminency of petitioner’s criminal trial in which the complainant was to testify against petitioner, are supported by substantial evidence. Such evidence includes the testimony of the complainant, the complainant’s son, the nightclub’s manager, the two detectives who had the complainant arrested, and the grand jury testimony of an eyewitness. No basis exists to disturb respondent’s findings of credibility (see, Matter of Berenhaus v Ward, 70 NY2d 436, 443-444). The penalty of dismissal does not shock our sense of fairness (see, Matter of Kelly v Safir, 96 NY2d 32, 38). Concur — Saxe, J.P., Rosenberger, Ellerin, Wallach and Marlow, JJ.