Martelle v. Margeson

116 A.D.2d 989, 498 N.Y.S.2d 612, 1986 N.Y. App. Div. LEXIS 51763

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1986
• Status: Published

Opinion

— Determination unanimously confirmed and petition dismissed, without costs. Memorandum: The record contains substantial evidence in support of the determination that petitioner, a police officer, was guilty of misconduct in twice issuing bad checks to local merchants and failing to make restitution until several weeks after each incident and only after repeated warnings by the police chief (see, Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Monroe v Board of Public Safety, 73 AD2d 996). The fact that petitioner’s misconduct occurred while he was off duty does not mitigate the gravity of his errors (see, Matter of Zazycki v City of Albany, 94 AD2d 925, lv denied 60 NY2d 558). The penalty of dismissal was not so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness (see, Matter of Alfieri v Murphy, 38 NY2d 976; Matter of Pell v Board of Educ., supra, at 233). There is no merit to petitioner’s argument that the matter should be remitted because prior warnings in his employment record were considered in his punishment without his having an opportunity to respond (cf. Matter of Bigelow v Board of Trustees, 63 NY2d 470). The penalty imposed was appropriate for the violations, considering the facts in the hearing record, regardless of the warnings. Thus, remittal would serve no purpose and is unnecessary (see, Matter of Kleinsmith v Connelie, 68 AD2d 271, 272-273). We have reviewed petitioner’s remaining claims and find them without merit. (Article 78 proceeding transferred by order of Supreme Court, Allegany County, Kelly, J.) Present — Dillon, P. J., Denman, Boomer, Green and O’Donnell, JJ.