Krute v. Kelly

Appellate Division of the Supreme Court of New York

Krute v. Kelly

49 A.D.3d 290, 853 N.Y.2d 52

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

DecidedMarch 6, 2008

StatusPublished

This text of 49 A.D.3d 290 (Krute v. Kelly) 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

Krute v. Kelly, 49 A.D.3d 290, 853 N.Y.2d 52 (N.Y. Ct. App. 2008).

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Opinion

[291]*291Dismissal was an appropriate penalty for the charges and specifications to which petitioner pleaded guilty, namely, that he left the county and city while on sick leave without approval, exaggerated his illness over a one-year period, and engaged in off-duty employment without permission. The Commissioner determined that at the time petitioner was claiming psychological impairments that prevented him from leaving home, he was actively pursuing a privately owned and operated business with substantial monetary gain, which would not have been possible had petitioner been truly impaired, and that the off-duty employment actions were taken without his supervisor’s knowledge, in violation of procedures and at a time when he was excused from all regular duty and assigned to police psychological services. This determination was based solely upon the charged offenses.

The penalty of dismissal, based upon exploitation of petitioner’s condition to further a long-term deception, was not so disproportionate to the offense as to be shocking to one’s sense of fairness (Matter of Ansbro v McGuire, 49 NY2d 872 [1980]).

We have considered petitioner’s remaining arguments and find them without merit. Concur—Mazzarelli, J.P., Saxe, Gonzalez and Acosta, JJ.

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[291]*291Dismissal was an appropriate penalty for the charges and specifications to which petitioner pleaded guilty, namely, that he left the county and city while on sick leave without approval, exaggerated his illness over a one-year period, and engaged in off-duty employment without permission. The Commissioner determined that at the time petitioner was claiming psychological impairments that prevented him from leaving home, he was actively pursuing a privately owned and operated business with substantial monetary gain, which would not have been possible had petitioner been truly impaired, and that the off-duty employment actions were taken without his supervisor’s knowledge, in violation of procedures and at a time when he was excused from all regular duty and assigned to police psychological services. This determination was based solely upon the charged offenses.

The penalty of dismissal, based upon exploitation of petitioner’s condition to further a long-term deception, was not so disproportionate to the offense as to be shocking to one’s sense of fairness (Matter of Ansbro v McGuire, 49 NY2d 872 [1980]).

We have considered petitioner’s remaining arguments and find them without merit. Concur—Mazzarelli, J.P., Saxe, Gonzalez and Acosta, JJ.

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49 A.D.3d 290, 853 N.Y.2d 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krute-v-kelly-nyappdiv-2008.

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