In re

Gary Calhoun, etc.,



Raymond Kelly, as Police Commissioner

of the City of New York, et al.,



No. 4624

788 N.Y.S.2d 33

2004 N.Y. App. Div. Lexis 15655

December 28, 2004, Decided


Mazzarelli, J.P., Ellerin, Lerner, Friedman, Sweeny, JJ.


Determination of respondent Police Commissioner, dated January 13, 2003, finding that petitioner wrongfully discharged his firearm at a moving vehicle, and wrongfully used his patrol car as a roadblock, in violation of Patrol Guide 203-12(g) and 212-39(d), respectively, and imposing a one-year dismissal probation and 30-day vacation forfeiture, 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 [Doris Ling-Cohan, J.], entered December 11, 2003) dismissed, without costs.


In reviewing this determination, the Court is limited to whether the conclusions below are supported by substantial evidence (Rodriguez-Rivera v Kelly, 2 N.Y.3d 776, 812 N.E.2d 1251, 780 N.Y.S.2d 302 [2004]). We may not substitute our own judgment but are constrained to uphold the determination as long as there is any rational basis for the findings (300 Gramatan Ave Assoc. v U.S. Division of Human Rights, 45 N.Y.2d 176, 182, 379 N.E.2d 1183, 408 N.Y.S.2d 54 [1978]).


The findings are supported by substantial evidence, including the testimony of petitioner and his partner, that petitioner did not have authorization from his supervisors to block traffic by parking his vehicle across a parkway, and could have avoided the deadly threat he felt when he fired his weapon at the passenger in a fleeing carjacked vehicle by taking cover instead of confronting the vehicle. We reject petitioner's argument that the charge of wrongfully discharging his firearm did not give him notice of the finding that he failed to take cover. The penalty imposed does not shock our sense of fairness, as a matter of law (see Matter of Kelly v Safir, 96 N.Y.2d 32, 38, 747 N.E.2d 1280, 724 N.Y.S.2d 680 [2001]).


Respondent's determination unanimously confirmed. Petition denied and proceeding dismissed, without costs.