Smith v. Murphy
| Decision Date | 27 March 1972 |
| Citation | 38 A.D.2d 931,330 N.Y.S.2d 146 |
| Parties | In the Matter of Ray L. SMITH, Petitioner, v. Patrick MURPHY, as Police Commissioner, Police Department, City of New York, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
J. Fallek, Brooklyn, for petitioner.
J. J. Fine, New York City, for respondents.
Before McGIVERN, J.P., and MARKEWICH, McNALLY, TILZER and CAPOZZOLI, JJ.
Determination of the respondent, dated February 4, 1971, unanimously modified on the law, the facts and in the exercise of discretion, to the extent of suspending the petitioner for a period of two years from the date of the order hereon, and as so modified, confirmed, without costs and without disbursements.
We believe the dismissal of petitioner and the forfeiture of his accrued pension rights constitute unreasonably harsh and excessive sanctions. We do not condone solicitation or acceptance of gratuities by police officers or for that matter any public official. Nevertheless, petitioner's excellent service of 22 years within the department, 10 of which were as sergeant, prior to the events underlying the charges herein, indicate that the permissible aims of discipline can be achieved effectively by less severe punishment. In the circumstances, the forfeiture of pension rights based on prior satisfactory service is unwarranted. A two-year period of suspension would satisfy the ends of justice. Our courts have heretofore revoked sentences of dismissal of employees with records of prior good service and substituted suspension. Matter of Bovino v. Scott, 22 N.Y.2d 214, 292 N.Y.S.2d 408, 239 N.E.2d 345; Matter of Mitthauer v. Patterson, 8 N.Y.2d 37, 201 N.Y.S.2d 321, 167 N.E.2d 731; Matter of Nagin v. Zurmuhlen, 6 A.D.2d 677, 173 N.Y.S.2d 899; Matter of Nimelman v. Kross, 5 A.D.2d 984, 173 N.Y.S.2d 136; Matter of McDonnell v. Kennedy, 5 A.D.2d 971, 171 N.Y.S.2d 911.
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