Golino v. Koehler

166 A.D.2d 198

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1990
• Status: Published

Opinion

Determination of the respondent Correction Commissioner dated January 30, 1989, which dismissed petitioner from his position as a correction officer, is unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this court by order of Sup Ct, NY County, Stanley Parness, J., entered Aug. 21, 1989) is dismissed, without costs. The clerk is directed to enter judgment in favor of respondent confirming the determination.

The administrative determination that petitioner, without authorization, cashed the paycheck of a fellow officer, was supported by substantial evidence and was adequate to demonstrate an intent to "appropriate” the check, i.e., "to dispose of the property for the benefit of oneself or a third person” (Penal Law § 155.00 [4] [b]), thereby supporting a finding of larceny. (Penal Law § 155.05 [1].) Under these circumstances, the penalty of termination was not so disproportionate as to shock one’s sense of fairness. (See, Matter of Pell v Board of Educ., 34 NY2d 222.) Concur—Milonas, J. P., Rosenberger, Asch, Kassal and Rubin, JJ.