Substantial evidence requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably" Matter of Lory v County of Wash., 2010 NY Slip Op 07657, Decided on October 28, 2010, Appellate Division, Third Department Washington County Sheriff's Department charged Chad R. Lory with four counts of misconduct arising out of his employment as a correction officer pursuant to Civil Service Law §75 alleging that Lory (1) failed to perform his assigned duties in a professional manner, (2) failed to obey all lawful orders, (3) engaged in conduct which tended to undermine the efficiency and discipline within the Department, and (4) was inattentive to duty. The Hearing Officer found Lory guilty of all four charges and recommended that he be terminated from his position. The Washington County Sheriff Hearing Officers findings and recommendation and Lory was dismissed from his position. In rejecting Lory's appeal, the Appellate Division addressed a number of substantive and procedural issues. The court found that: 1. "The violations charged were sufficiently detailed to enable [Lory] to prepare an adequate and extensive defense; 2. "Any references to uncharged conduct found in the determination … were necessary to refute [Lory's] denial of the charge that his attention was diverted from his duties; 3. The Sheriff's Department "was not precluded from instituting charges based on conduct that was [earlier] the subject of counseling and complaints"; and 4. "The Hearing Officer's determination is sufficiently detailed, such that petitioner was not deprived of the opportunity to intelligently challenge and obtain adequate judicial review of the same." As to the substance of Lory's claims, the Appellate Division said that the standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence. This, said the court, requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably." Reviewing the record established in the course of the hearing,* the Appellate Division said that it found substantial evidence to support the Hearing Officer's findings. In addition, the court said that "credibility determinations are 'solely within the province of the [H]earing [O]fficer,' and this Court may neither substitute its own judgment for that of the Hearing Officer nor weigh the evidence presented, citing Perryman v Village of Saranac Lake, 64 AD3d 830. As to the penalty imposed, the Appellate Division said that the evidence supports the Hearing Officer's determination that petitioner's conduct evidenced a lack of professional judgment and posed a serious security risk. Accordingly, the court said that it did not find the penalty of dismissal "so disproportionate to the offenses as to be shocking to one's sense of fairness." As to Lory's contention that the Hearing Officer should have conducted a separate hearing with respect to the penalty to be recommended, the Appellate Division held that under the under the circumstances in this case, "the Hearing Officer did not err in making a penalty recommendation without having first conducted a separate hearing." * §75.3, in pertinent part, provides that "If such officer or employee is found guilty, a copy of the charges, his written answer thereto, a transcript of the hearing, and the determination shall be filed in the office of the department or agency in which he has been employed, and a copy thereof shall be filed with the civil service commission having jurisdiction over such position. A copy of the transcript of the hearing shall, upon request of the officer or employee affected, be furnished to him without charge. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07657.htm NYPPL
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