Tropiano v. Codd , 57 A.D.2d 769 ( 1977 )

Determination of the Police Commissioner, dated April 15, 1976, dismissing petitioner from the police department, is unanimously modified, on the law, without costs and without disbursements, so as to reduce petitioner’s punishment from dismissal to suspension without pay from April 19, 1976 until 10 days after service upon the Corporation Counsel and the Police Commissioner of a copy of the order of this court determining this proceeding. This is an article 78 proceeding transferred to this court for disposition pursuant to CPLR 7804 (subd [g]). Petitioner, a former police officer of the City of New York, seeks to review the determination of the Police Commissioner dismissing petitioner from his position. We hold that there was substantial evidence sustaining the Police Commissioner’s determination that petitioner disobeyed an order to remain at the Police Academy to await examination by a police surgeon and left for home before the arrival of the surgeon, as well as the charge that petitioner was unfit for duty on that occasion, and less serious charges relating to the same incident. While the charge is serious, we think that the punishment of dismissal was "' “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness”.’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233.) We think that an appropriate punishment is a suspension without pay for approximately one year. Petitioner was dismissed effective April 19, 1976, slightly more than a year before the release of this decision. Accordingly, we modify the punishment to suspension without pay from April 19, 1976 until 10 days after service of a copy of the order of this court determining this proceeding. Concur— Birns, J. P., Silverman, Capozzoli and Markewich, JJ.