Hughes v. Ward

Appellate Division of the Supreme Court of New York

Hughes v. Ward

158 A.D.2d 362, 551 N.Y.S.2d 217, 1990 N.Y. App. Div. LEXIS 1386

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 15, 1990

StatusPublished

Cited by1 cases

This text of 158 A.D.2d 362 (Hughes v. Ward) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hughes v. Ward, 158 A.D.2d 362, 551 N.Y.S.2d 217, 1990 N.Y. App. Div. LEXIS 1386 (N.Y. Ct. App. 1990).

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Opinion

The petitioner has had a continuing alcoholism problem. A disability retirement was recommended for him and, while such procedures were pending, he failed to report for duty, missed an appointment for an examination and refused to obey the orders of superiors to report for duty.

The petitioner pleaded guilty to the charges and the recommendation by the Trial Commissioner was for dismissal from [363]*363the police force. The petitioner asked, instead, for a two-year suspension. The only issue presented is the severity of the penalty imposed. The IAS court concluded that dismissal was an unreasonably harsh and excessive sanction because the misconduct did not involve moral turpitude but was rather due to petitioner’s alcoholism.

Petitioner’s problem with liquor was one of long duration and, although his record was otherwise satisfactory, it had, on several prior occasions, resulted in disciplinary action against him.

Under the circumstances, it cannot be said that the penalty imposed is shockingly disproportionate to the offense so as to amount to an abuse of discretion. (Matter of Pell v Board of Educ., 34 NY2d 222; see also, Matter of Berenhaus v Ward, 70 NY2d 436, 445.) Concur—Kupferman, J. P., Sullivan, Milonas, Rosenberger and Wallach, JJ.

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The petitioner has had a continuing alcoholism problem. A disability retirement was recommended for him and, while such procedures were pending, he failed to report for duty, missed an appointment for an examination and refused to obey the orders of superiors to report for duty.

The petitioner pleaded guilty to the charges and the recommendation by the Trial Commissioner was for dismissal from [363]*363the police force. The petitioner asked, instead, for a two-year suspension. The only issue presented is the severity of the penalty imposed. The IAS court concluded that dismissal was an unreasonably harsh and excessive sanction because the misconduct did not involve moral turpitude but was rather due to petitioner’s alcoholism.

Petitioner’s problem with liquor was one of long duration and, although his record was otherwise satisfactory, it had, on several prior occasions, resulted in disciplinary action against him.

Under the circumstances, it cannot be said that the penalty imposed is shockingly disproportionate to the offense so as to amount to an abuse of discretion. (Matter of Pell v Board of Educ., 34 NY2d 222; see also, Matter of Berenhaus v Ward, 70 NY2d 436, 445.) Concur—Kupferman, J. P., Sullivan, Milonas, Rosenberger and Wallach, JJ.

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Bluebook (online)

158 A.D.2d 362, 551 N.Y.S.2d 217, 1990 N.Y. App. Div. LEXIS 1386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-ward-nyappdiv-1990.

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