Opinion
Argued May 30, 1980
Decided June 24, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department.
Allen G. Schwartz, Corporation Counsel (June A. Witterschein and Francis F. Caputo of counsel), for appellants.
Bennett M. Epstein and Jacob R. Evseroff for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs.
Initially it should be noted that the Appellate Division, although it modified the penalty imposed by the police commissioner, nevertheless sustained the charge against the petitioner: failure to make entries in his memo book accounting for his patrol activities as required by the department's patrol guide. On its face the penalty imposed — dismissal — might seem disproportionate to the gravity of the offense. However, the petitioner's record with the police department reveals a long history of serious misconduct. At the time of the infraction with which this proceeding is concerned the petitioner was on disciplinary probation, for the fourth time, and was expressly warned that any violation of the patrol guide during the period of probation would lead to dismissal.
In determining the appropriate penalty, the commissioner was justified in examining the petitioner's prior disciplinary record and, under these circumstances, it may not be said that the penalty imposed was so disproportionate to the offense as to shock one's sense of fairness (see Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order reversed, with costs, and the determination of the police commissioner reinstated in a memorandum.