Leonard v. Jones

• Decision Date: 17 January 1973
• Citation: 41 A.D.2d 579,339 N.Y.S.2d 559
• Parties: In the Matter of Thomas B. LEONARD, Petitioner, v. Howard A. JONES, as Chairman of the New York State Narcotic Addiction Control Commission, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 559

339 N.Y.S.2d 559

41 A.D.2d 579

In the Matter of Thomas B. LEONARD, Petitioner, v. Howard A. JONES, as Chairman of the New York State Narcotic Addiction Control Commission, Respondent.

Supreme Court, Appellate Division, Third Department.

Jan. 17, 1973.

Lyons & Duncan, Albany (E. David Duncan, Albany, of counsel), for petitioner.

Louis J. Lefkowitz, Atty. Gen. (William J. Kogan, Albany, of counsel), for respondent.

Before STALEY, J.P., and GREENBLOTT, COOKE, KANE and REYNOLDS, JJ.

MEMORANDUM DECISION.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the Narcotic Addiction Control Commission dismissing petitioner from his employment with the commission.

Three of the five charges brought against petitioner, a Senior Community Narcotic Education Representative, were found by the respondent to have been substantiated and he has been dismissed from his position. The charge of taking vacation time without proper authorization cannot be upheld since it is based solely on the testimony of three witnesses not taken under oath (Matter of Hecht v. Monaghan, 307 N.Y. 461, 474, 121 N.E.2d 421, 428; People ex rel. Kasschau v. Bd. Police Comr's New York, 155 N.Y. 40, 44, 49 N.E. 257; Matter of Kehrley v. McGough, 19 A.D.2d 933, 244 N.Y.S.2d 234). Petitioner's failure to object at the hearing did not here constitute a waiver of his right to have the testimony taken under oath (People ex rel. Niebuhr v. McAdoo, 184 N.Y. 304, 306, 77 N.E. 260, 261; People ex rel. Kasschau v. Bd. Police Comrs. New York, Supra, 155 N.Y. at 45, 49 N.E. at 258; compare Wilcoxon v. United States, 10 Cir., 231 F.2d 384; Matter of Sowa v. Looney, 23 N.Y.2d 329, 296 N.Y.S.2d 760, 244 N.E.2d 243). However, the findings with respect to the other two charges, that petitioner had neglected to spend adequate time in the communities for which he was responsible and that he had not submitted written reports as directed by his supervisor, are not so tainted, and since we find no basis advanced to disturb such findings, they must be upheld.

We cannot agree with petitioner's contention that the findings on these charges are not supported by substantial evidence. Involved are solely issues of disputed fact and credibility which were for the respondent to resolve (Matter of Sowa v. Looney, Supra at 336, 296 N.Y.S.2d at 766, 244 N.E.2d at 247). Nor does the fact that petitioner's supervisor based a portion of his testimony upon an exhibit introduced by one of the prior witnesses, who was not under oath, taint the supervisor's testimony since his testimony was under oath and petitioner and his counsel knew at that time that the prior witness had not been sworn and yet did not object to the use of the exhibit (cf., Matter...