After charges were filed and a hearing held before a hearing officer Petitioner filed an Article 78 suit claiming his privilege against self incrimination had been violated.
The Appellate Division, Second Department wrote: “The privilege against self-incrimination was not a bar to the disciplinary charges because the petitioner was not required to waive his immunity with respect to the use of the statements in a criminal proceeding.
In Matt v. Larocca, 71 N.Y.2d 154, 524 N.Y.S.2d 180, 518 N.E.2d 1172 (N.Y., 1987) considering the same issue the court held:
We conclude therefore that insofar as petitioner was not requested to waive his right to immunity before answering questions specifically, directly and narrowly relating to his official duties, his dismissal did not violate fundamental fairness or his privilege against self-incrimination. Moreover, there is substantial evidence in the record to support the Commissioner’s determination that petitioner willfully refused to answer the questions posed, and dismissal under the circumstances is not ” ‘ “so disproportionate to the offense * * * as to be shocking to one’s sense of fairness”
The court went on to find that the penalty of dismissal did not shock one’s sense of fairness.
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