Miller v. Codd

49 A.D.2d 546, 370 N.Y.S.2d 125, 1975 N.Y. App. Div. LEXIS 10386

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1975
• Status: Published

Opinion

Determination of respondent dated December 21, 1973, confirmed, without costs or disbursements (see Matter of Alfieri v Murphy, 47 AD2d 820; Matter of Pell, 34 NY2d 222). Concur—Markewich, J. P., Lupiano, Capozzoli and Lane, JJ.; Nunez, J., dissents in the following memorandum: Petitioner, a young New York City policeman, was found guilty after a departmental trial of misappropriating $10 on three occasions and $15 on another, during his off-duty, part-time employment as a bank teller. He had an admirable record in the department without any prior complaints against him. In my view the circumstantial evidence against him barely supports the charges. His guilt was certainly not established beyond doubt. It could well be that the small amounts involved in the discrepancies between the amounts deposited by the bank’s customers and the amounts credited to their accounts, resulted from negligence or mistake. But be that as it may, the penalty of dismissal from the Police Department is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s (certainly it is to mine) sense of fairness and should be annulled as excessive. A six-month suspension without pay would certainly achieve the permissible aim of discipline for petitioner’s shortcomings, totally unrelated to his police work.