Fischer v. Kelly

• Decision Date: 15 December 1969
• Citation: 307 N.Y.S.2d 421,33 A.D.2d 785
• Parties: In the Matter of Henry FISCHER, Respondent, v. James J. KELLY, as Commissioner of the Nassau County Police Department, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 421

307 N.Y.S.2d 421

33 A.D.2d 785

In the Matter of Henry FISCHER, Respondent, v. James J. KELLY, as Commissioner of the Nassau County Police Department, et al., Appellants.

Supreme Court of New York, Appellate Division, Second Department.

Dec. 15, 1969.

In a proceeding pursuant to article 78 of the CPLR to review a determination of appellant Commissioner dismissing petitioner from his position of detective, the appeal is from a judgment of the Supreme Court, Nassau County, dated February 27, 1968, which reduced the dismissal to a stated period of suspension (some four years) without pay. Judgment affirmed, without costs. No opinion. (See Matter of Fischer v. Kelly, 20 A.D.2d 906, 248 N.Y.S.2d 957, mod. 17 N.Y.2d 521, 267 N.Y.S.2d 517, 214 N.E.2d 793.)

RABIN, HOPKINS, BENJAMIN and MARTUSCELLO, JJ., concur.

CHRIST, Acting P.J., dissents and votes to reverse the judgment, to dismiss the proceeding on the merits and to confirm the Commissioner's determination, with the following memorandum:

Petitioner pleaded guilty to the charge of changing a summons for a moving traffic violation (illegal left turn) to one for a non- moving violation (driving without a license), which does not appear on the operator's license, and of having procured other members of the police force to assist him in the preparation and verification of such false summons and sworn complaint. This was a serious matter involving a deliberate and conspiratorial violation, including perjury and subornation of perjury, that could not but have a damaging effect on morale and discipline in the Department. In the circumstances, I cannot agree that the punishment imposed by the Commissioner was excessive.